§ (" .Where any proceedings under this Part are before the court and there are children of the marriage, it shall be an obligation on the Court Welfare Officer in compiling any reports in relation to the residence of the children or contact with the children to use his best endeavours to interview the children in the presence of each of the parents and, where this is not done, in coming to any decision based upon such a report the court shall adjust the weight that it shall give to that report accordingly.").
§ The noble Baroness said: My Lords, Amendment No. 88 provides for the duties of the court welfare officer in regard to reporting the feelings and interests of the child. Having had considerable debate about children being asked to give their views, particularly in front of the parents, in this amendment, I should be happy for the principle of the duty of the court welfare officer to be considered, but not necessarily to provide that he interviews the children in the presence of each of the parents.
§ Amendment No. 25, introduced extremely ably by the noble and learned Lord, Lord Simon of Glaisdale, provides that the interests of the children are represented by the Official Solicitor in certain cases. Amendment No. 62, introduced by the noble Lord, Lord Northbourne, as regards the person who should be allocated the task of speaking on behalf of the children in the court, suggests a children's officer, a guardian ad litem or a welfare officer.45
§ I have never been quite satisfied or clear as to who my noble and learned friend considered the appropriate person to speak to the court at the appropriate time on behalf of the children. As I understand it, under the present divorce law it is for the court welfare officer to write a report on behalf of the children to represent their views, feelings and interests to the court. I also understand that because of the pace at which things move through the courts—many undefended divorces do not come before the court; the process is in writing—the interests of the children, if I may so say, are shoved under the carpet and not fully considered.
§ I put forward the amendment in order to find out from my noble and learned friend, or from those who practise in the divorce courts, how the interests of the child are represented to the court before divorce is granted. What is considered? What weight is given to the report of the welfare officer? Is that officer the right person to undertake that duty at the different stages at which the question of representation has been raised?
§ Amendment No. 137 is grouped with Amendment No. 88. I have no doubt that my noble and learned friend will speak to that himself. Perhaps I may say how grateful I am to him for having put the provisions of my Amendment No. 87 into the amended Section 41 of the 1973 Act.
§ Lord Moran
My Lords, like the noble Baroness, I, too, would like clarification as to what the noble and learned Lord considers most appropriate for the representation of the children's interests in court.
Like the noble Baroness, perhaps I may again express my gratitude to the noble and learned Lord for Amendment No. 137 as regards reintroducing the factor of fault in the part of the Bill where the noble and learned Lord considers it belongs.
§ Lord Mishcon
My Lords, I am quite sure that it is good that the noble and learned. Lord will tell us about the conduct of the welfare officer as regards the welfare of the children. However, unless I have misunderstood the wording of the amendment, I am a little worried. It seems as though the welfare officer would be prevented by this wording from seeing the child on his or her own. I should have thought that it was fundamental that the welfare officer should see the child on his own. I entirely agree that, if the welfare officer is to prepare a proper report, it would be advisable for the welfare officer to see the child in the presence of each of the parents separately. I am quite aware of that fact. But I would hate the idea that the welfare officer is told, "You are expected to interview in the presence of a parent but not to interview the child on his own".
§ Baroness Elles
My Lords, with the permission of the House, perhaps I may explain the position to the noble Lord. In introducing the amendment, I suggested that I should delete the words:in the presence of each of the parents",or of the parents together. I hope that that answers the noble Lord's point.
§ Lord Simon of Glaisdale
My Lords, as I ventured to suggest last week, I do not believe that we have 46 achieved a consensus on two separate questions: how the children's views should be ascertained, and how the children's interests should be represented. I respectfully agree with the noble Baroness that the welfare officer has an important part to play. He is a probation officer seconded from the probation service for specialist duties: family mediation and conciliation, particularly as regards the children. I do not believe that he is the proper person to represent the children's interests when they are required to be presented to the court, although he may well be the best person to represent the children's views.
I suggested last week that the Official Solicitor was the proper person to represent the interests of the children. I was convinced by my noble and learned friend that the Official Solicitor would not he an appropriate person to carry out that task in all circumstances and in respect of every child whose interests came before the court. However, he has a supervisory role, particularly to instruct counsel in the odd cases where the interests of the child should be represented by counsel.
I suggest that, since the Bill must go to another place, my noble and learned friend may canvass opinion more widely on the basis of the several views that have been expressed in your Lordships' House as to how the two separate functions are best performed and in what degree and what number in each case.
§ Lord Meston
My Lords, as I understand Amendment No. 88, it presupposes that there is before the court the question of either the residence of the children or contact with them. That would normally arise under the Children Act rather than under the provisions of the Bill. In any event, it is dangerous to think of the court welfare officer as somehow expected to represent the interests of the child in any formal sense. There are cases in which a child is represented in a formal sense either by the Official Solicitor—although resources of the Official Solicitor's office would not allow that to happen in many cases—or by a guardian ad litem from the panel of guardians ad litem.
In such situations, the court welfare officer does not formally represent the child but performs the functions of the eyes and ears of the court, to report back to the court the various material considerations under Section 1 of the Children Act. I can see that there may be cases in which a welfare officer's assistance would be valuable under the provisions of the hardship bar, as it has now been amended this afternoon.
As to the provisions of the rest of the amendment, I bear in mind the qualification as to the noble Baroness's wording, but it is normally good practice for a welfare officer in an appropriate case to speak to the child or children in the presence of each parent, if that is possible. It is normal practice that if, for some reason, the welfare officer has been unable to speak to the child in the presence of one or other parent or has somehow failed to do so, the court would give that defect weight in reaching its decision. Equally, it must be within the discretion of a welfare officer whether he or she should interview the child in the presence of a parent or alone, or whether the child should be interviewed in the 47 presence of siblings or a combination of those possibilities. Therefore, with respect to the noble Baroness, I question the circumstances in which she sees the amendment as being useful. Perhaps it is simply designed to add emphasis to existing good practice.
§ 5.15 p.m.
§ Lord Northbourne
My Lords, I wish to ask a question for information in relation to this amendment and some earlier ones which have referred to the real need for someone to befriend and support the child. My recollection is that Section 17 of the Children Act provides for local authorities to consider the problem of children in need in their area and to make provision for them. I should have thought that children whose parents are undergoing divorce would fall into the category of children in need and that the local authority should make provision for befriending and supporting them.
§ The Lord Chancellor
My Lords, there are two sets of provisions which we must bear in mind. The first provisions are from the Children Act, to which the noble Lord, Lord Northbourne, has just referred. As he rightly said, the Act contains provisions for a local authority to consider what should be done in relation to children in need. The second set of provisions, those in this Bill, are concerned primarily with divorce. There is a link between them which is elaborated in Section 41 which I seek to amend later.
In the normal case, it would be a complete waste of resources for a court to inquire into the detail of arrangements which are entirely satisfactory, made by parents about their children, where sadly their own relationship has broken down. One of the prime purposes of the Bill is to do our best to avoid any unnecessary trauma to the children in that respect. However, there will be some cases where the intervention of the court is desirable. The powers that the court has to intervene will depend on the Children Act arrangements and what should be done under that Act. We need to link the two and I have provided for that in my later amendment.
We have had discussions with children's organisations about how that can be done most effectively. We need to have information before the court about the children which will highlight the situation in which further concern is properly taken in the matters by the court. That depends on the detail of the statements required from the parties about the children. That is what I propose. I believe that that is the most effective and practical way to bring the proposals forward. It should be done by reference to rules rather than putting it on the face of the Bill. I should not be at all surprised if experience were to show that what one did first could subsequently be further improved with judicial experience of the way in which matters work.
In regard to this amendment, on the last occasion I read out the standards of practice for welfare officers as contained in the national standards. I believe they deal adequately with the problem raised in this amendment.
48 With this amendment are grouped Amendments Nos. 134 to 137 in my name, and Amendment No. 144 in the name of my noble friend Lady Elles. Perhaps I might just explain how Amendments Nos. 134 to 137 are supposed to play a part. They were inspired by the amendment tabled in Committee by my noble friend Lady Elles and supported by my noble and learned friend Lord Wilberforce. I recollect his suggestion that it was highly probable that these sentiments would in any event guide the court in its consideration of these matters, but no harm would be done—and indeed some good might be done—by putting them on the face of the Bill. I paraphrase rather inelegantly the words spoken much more eloquently by my noble and learned friend.
In my view it is wise to try to take this idea forward. I considered that the amendment proposed by my noble friend identified those areas which are most likely to indicate to a court that the circumstances of a case are such as to require it to take further action. These are: how the parents have conducted themselves in bringing up the child—for example, if the child has been very well brought up and looked after in every possible way by both parents, that must be a pretty good indication that the interest in the children is likely to continue; the principle that, unless there is evidence to the contrary, it will be in a child's best interest to have regular and reasonable contact with both parents—that will be shown on the statement about what the arrangements are; if it is seen, for example, that the arrangements are that the father will have no further contact with a child, that would raise the court's interest and cause it to look into the matter further; and the risk a child may be at, either because of where a parent with residence has chosen to live or because of the person with whom that parent has chosen to live. The amendment identifies very clearly circumstances which might give rise to concern.
I suggest therefore that the most appropriate time for the court to consider these matters is when it has before it the proposed arrangements for the child's future. That will not interfere with the responsibility of parents to decide the arrangements for their children, and arrangements reached by agreement are less likely to break down than arrangements that are imposed. All noble Lords who have the experience of trying to impose arrangements on unwilling parents will have a good idea of how difficult it is to enforce such arrangements. Agreement is by far the best way forward where it is possible.
By including these factors on the face of the statute, the court will have in its mind what are the issues which, prima facie, might suggest that the circumstances are such that the arrangements should be further examined. If necessary, it will then be able to ask for welfare reports and any other information that is considered necessary in assisting the court to decide whether or not an order under the Children Act is required. That would be a supplement to what is in the statements before the court.
I now turn to Amendment No. 144, grouped with this one. The suggestion of the noble Lord, Lord Northbourne, may well be the right answer: In due course I shall move Amendments Nos. 134 to 137. 49 I have sought to explain them in a little detail at this stage because they are grouped with this amendment, and also because this gives the background to a proper relationship between the divorce provisions of this Bill and the provisions in the Children Act which are designed to secure the welfare of the children in all possible circumstances in so far as the state can do so.
§ Baroness Elles
My Lords, I thank my noble and learned friend for his remarks, and particularly for his introduction to Amendment No. 137. There has been concern on the part of quite a lot of Members of this House as to the direct legal connection between the Children Act and this Bill; and how the interests of the child in particular will be protected by the provisions of the Children Act in relation to divorce proceedings. I am very grateful for that.
I quite understand that there will be problems over Amendment No. 88. However, I hope that my noble and learned friend heard the remarks of the noble and learned Lord, Lord Simon of Glaisdale in relation to considering in the next period who are the best people to look after the interests of the child, to speak on behalf of the child or to be available to look after the interests of the child at any particular point during the course of the proceedings. We are already grateful for the amendment to Clause 9. I think we can say happily that the position of the child in relation to the position of the parties—i.e. the parents—in this Bill has been very much strengthened by the provisions introduced by my noble and learned friend. For that I am grateful. I therefore beg leave to withdraw Amendment No. 88.
Amendment, by leave, withdrawn.
§ Clause 16 [Time when proceedings for divorce or separation begin]:
The Lord Chancellor moved Amendment No. 89:
Page 9, line 17, at end insert ("and not withdrawn").
§ The noble and learned Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 90 and 91.
§ These amendments deal with the time at which marital proceedings come to an end. The Bill as currently drafted provides that such proceedings come to an end on the withdrawal of an application which has been made under Clause 2. However, it is possible for there to be both an application for a separation order and an application for a divorce order before the court at the same time. The amendment provides that in this case marital proceedings will end only if all applications that have been made under Clause 2 are withdrawn. I beg to move.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendments Nos. 90 and 91:
Page 9, line 19, at end insert ("and not withdrawn").
Page 9, line 30, after ("application") insert ("or all applications").
§ The noble and learned Lord said: My Lords, I have already spoken to these amendments. With the leave of the House, I beg to move them en bloc.
§ On Question, amendments agreed to.
§ Clause 17 [Intestacy: effect of separation]:
Lord Simon of Glaisdale moved Amendment No. 92:
Leave out Clause 17.
§ The noble and learned Lord said: My Lords, this amendment deals with intestacy when there is a separation order. It was moved in Committee, when it was also supported by the noble and learned Lord, Lord Archer of Sandwell. I am very glad that he has put his name to the amendment again at this stage.
§ The law discriminates in favour of marriage in the devolution of property on death. In English law that is only on intestacy. If a testator or testatrix dies without making a will (if the deceased has died without making a will) then the surviving spouse has substantial property advantages over outsiders.
§ The law of Scotland, as I understand it, discriminates in favour of marriage, also in the law on testacy. I tried to table an amendment to assimilate our law more to the law of Scotland, but it was held by the Public Bill Office to fall outside the ambit of the Bill. So we have to deal only with the English law, which discriminates in favour of marriage where a deceased has died without making a will.
§ Where there is a divorce, there is no surviving spouse who is relevant, although there may be a new one. But where there is a separation order, the marriage subsists and (except for the intervention of Clause 17, which reproduces the law as it existed, was laid down in 1965 and re-enacted) where there is an intestacy, Clause 17 provides that the surviving spouse shall not enjoy any benefit. The property is to devolve as if she had died.
§ At the very outset of the Committee stage of the Bill, my noble and learned friend the Lord Chancellor assured noble Lords that there was provision for a separation order, among other circumstances to accommodate a spouse who objected on conscientious grounds to divorce. However, that clause penalises a spouse who on conscientious grounds prefers a separation order to a divorce order. It states that she will not enjoy the benefit that normally accrues to a surviving spouse.
§ The amendment seeks to eliminate that provision because it takes away one of the advantages which perfectly properly accrue to a spouse who has a conscientious objection to divorce or who may even quite legitimately have an idea on the property advantages. When the matter was raised in Committee, it seemed that my noble and learned friend was reasonably susceptible to the arguments that had been put forward. However, I have since had a letter from him, as has also the noble and learned Lord, Lord Archer, in which he shows himself adamant.
§ The amendment is very much a matter of the impression that the Bill gives to the public. It is always open to a spouse who is the subject of a separation order to make a will cutting out the other spouse who has 51 obtained the order, or indeed the spouse who would benefit if this clause were eliminated may still get benefit under the inheritance, family provision legislation, although there to some extent it is discretionary. But it is a matter partly of the impression that the Bill will give to the public. It is discriminatory in favour of divorce and against separation, where there is always a chance of reconstituting the marriage. It is discriminatory against the separation order. This is one of the most blatant examples.
I said that I had a letter from my noble and learned friend. None of us has had any doubt .of my noble and learned friend's genuine adherence to the concept of marriage as a lifelong institution: a lifelong relationship divinely instituted. But I confess that I cannot feel the same confidence as to everyone whose hand has been in the Bill. By their fruits shall ye know them and one bad apple can contaminate a whole barrel. In the light of that, I read what my noble and learned friend wrote:
Separation does not have the finality of divorce".
So far, so good!
It does, nevertheless, seem that spouses who are judicially separated are generally unlikely to wish the other spouse to benefit from the will".
That is an utter misconception. There is no question of a will at all. We are dealing with intestacy and not testacy. The letter continues:
It therefore appears to be inappropriate to remove Clause 17, when to do so could result in an estranged spouse benefiting from the estate against a testator's wishes".
That merely reiterates the error. There is no question of a testator at all. This is a matter of intestacy. It is just a matter of saying that the normal law of intestacy shall prevail and that there shall not be discrimination against somebody who has chosen to have a separation order rather than a divorce order. I beg to move.
§ 5.30 p.m.
§ Lord Meston
My Lords, the noble and learned Lord, Lord Simon, raised this important matter at Committee stage. He suggested that this provision, which in fact originated in the legislation of 1965, was somehow the product of the "Swinging Sixties", although it is perhaps not the most obvious manifestation of that particular decade of which most of us would have thought.
I suspect that the rationale for the provision that is now to be re-enacted in Clause 17, unless your Lordships agree to the amendment, was that it is supposed that by the time the death has occurred, the estranged spouse has taken advantage of the financial powers of the court in the existing legislation and under the Bill to have claimed and received whatever his or her entitlement might be to a suitable financial settlement. In those circumstances, presumably it is taken into consideration that, in awarding him or her the entitlement, he or she will no longer benefit on the intestacy of the estranged spouse.
The other factor which the court can take into consideration is that a spouse in that situation—one is now talking about a wife—by virtue of electing separation rather than divorce, will probably have 52 preserved her entitlement to a widow's pension. Furthermore, if that creates some hardship, despite the provision already awarded by the court under its existing powers, as the noble and learned Lord said, following the death, the spouse concerned has the benefit of the inheritance provision for family and dependants legislation.
I question whether it is appropriate to equate a long estranged legally separated spouse, who may well have received her entitlement under the matrimonial, property and financial legislation, with a wife who is party to a truly subsisting marriage. Having thought about it, I can see the rationale for Clause 17. I suspect that it was the rationale for the original legislation in 1965.
§ Baroness Gardner of Parkes
My Lords, the case for this amendment was presented in a most interesting way. In replying, I ask my noble and learned friend to clarify a point for me. As I understand the law, if one has made a will and then marries, the will is no longer valid after the marriage. If one has a will and divorce takes place, does that affect an existing will which might have been made a long time ago? If I knew the answer to that I would be better able to consider this amendment.
§ The Lord Chancellor
My Lords, perhaps I may address myself in the first instance to this amendment. It is just worth pointing out at the start that the basic provision does not originate in the 1960s, but in the 1850s, as Section 25 of the Divorce and Matrimonial Causes Act 1857. There must be a fairly obvious point to made about that.
The original provision was intended to protect the property of separated women from their husbands. Section 25, which was consolidated into Section 194 of the Supreme Court of Judicature (Consolidation) Act 1925, and therefore into Section 20(3) of the Matrimonial Causes Act 1965, provided, on the one hand, for a married woman, after judicial separation, to be treated as not a married woman in respect of all after-acquired property; and for her after-acquired property, and any property which at the date of the decree of separation she had an interest in reversion or remainder, to pass on her intestacy as if her husband had predeceased her.
On the other hand, separated women, noble Lords will be glad to know, retained the right of inheritance on the husband's intestacy. So that was a somewhat one-sided provision designed to protect the property of separated women, while not giving the same protection to separated men. By 1969 the main justification for the provision had gone and the provision was criticised by the Law Commission in its Working Paper No. 9 and its report No. 29, as being half-hearted, arbitrary in its operation and a source of difficulty in administering estates.
The commission recommended that the provision should be extended so that it covered all property of the intestate, and so that it applied to property of both spouses. That was implemented by Clause 30 of the draft Bill annexed to Law Commission report No. 29, which became Section 40(1) of the Matrimonial 53 Proceedings and Property Act 1970. So the point is that this matter was very thoroughly considered when it was reformed in the Matrimonial Proceedings and Property Act 1970.
The situation, so far as I am concerned, is that this particular provision is one which has been in the law. It is in this Bill only because, for reasons of convenience, we have repealed a number of provisions to which this measure corresponds. It was thought better, in the interests of clarity, to re-enact this measure. But if the Bill is sending out the message that there is a problem, it would not be very difficult to reinstate the existing law and alter the appeal schedule. It would be a little less convenient, but it would not make very much difference.
My noble and learned friend Lord Simon of Glaisdale referred to my letter to him and quoted from it. I do not know anything about "bad apples", but I take responsibility for all that is done. The letter is signed by me and therefore I am not speaking for anybody but myself. The point I was trying to make, rather inelegantly, was that, on the whole, experience seems to be that when parties become separated the husband, for example, does not intend or wish for his separated wife, if the separation has lasted until death, to benefit from his estate.
One can achieve that, I suppose, in a number of ways. One can make the intestacy provision go one way and then there will be a whole lot of wills going the other; or one can make the intestacy provision go the other way, in which case one does not require so many wills. I can see that it is in the interests of some that there should be a lot of wills. The point I was trying to make in the letter was that, as far as experience goes, it does not look as though there are many wills trying to alter the effect of the current law on this matter. I have not expressed it anything like as well in the letter. If I had to write the letter again I am sure that I would be able to improve on it. Your Lordships will appreciate that I have written one or two letters during the Committee stage of this Bill.
However, the most important thing I said in the letter was that I had had an opportunity of consulting, since Committee stage, with my Ancillary Relief Advisory Group, which is headed by Lord Justice Thorpe. It consists of representatives of the judiciary, the Family Law Bar Association, the Law Society, the Solicitors Family Law Association and two academic lawyers. Their view was that we should stick with the existing law. It is for that reason that I decided that the existing law should be left in. But if, as I said, there is a problem about the message of the Bill because it happens to be re-enacting existing law, I believe that I can deal with that by an amendment which takes this measure out all together and keeps the existing law in its present form.
I believe that what we have is probably more convenient for practitioners, but that of course is not certain. It has nothing at all to do with the legal effect of divorce on wills, which is a separate matter altogether, and where the only problem is separation. The law has been like this to some extent from as long ago as the 1850s although, as I have explained, it was modified considerably in 1970.
§ 5.45 p.m.
§ Lord Simon of Glaisdale
My Lords, I need not deal at any length with the letter which has been referred to. My noble and learned friend has not disputed that it shows complete confusion between testacy and intestacy, which invalidates the whole objection to this amendment.
My noble and learned friend was inclined to quarrel with my statement that this provision goes back to 1965 although that was supported by the noble Lord, Lord Meston. He said that it goes back to the middle of the last century. That is at best only half-valid.
There was a provision to which he referred and which arose out of the union of two very raffish figures; I am sorry to say that one of them was a predecessor of my noble and learned friend on the Woolsack, Lord Lyndhurst. I am very surprised that my noble and learned friend should take him in any way as a model. The other was Mrs. Caroline Norton, whose husband brought an action for adultery (criminal conversation) naming Lord Melbourne, the Home Secretary—or he may have been Prime Minister by that time—as her lover. That is the origin of what happened in the middle of the last century. It was partly a precursor of the Married Women's Property Act, which was designed to protect the property of married women who were living separately from their husbands under a separation order, as it is now called. That is only half of what is now proposed, which was fully expounded in 1965.
One comes back to this: although lipservice is paid to the right of anybody on conscientious objection to prefer a separation order to a divorce order, although that is conceded, the normal law of intestacy which would benefit only such a person making such a choice is altered to that person's disadvantage.
I said at the beginning that this is mainly a question of impression rather than of substance because the separated spouse can always make a will and the person who might benefit from intestacy has some rights under family provision legislation. As a question of appearance, this once again shows how divorce-minded the Bill is and how at every turn it is in favour of divorce as against separation (where there is still some hope for the marriage because there is no right to remarry). However, in view of the fact that this is largely a matter of presentation and not of substance, I ask your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 18 [Funding for marriage support services]:
The Lord Bishop of Oxford moved Amendment No. 93:
Page 9, line 40, leave out ("may") and Insert ("shall").
§ The right reverend Prelate said: My Lords, in moving Amendment No. 93, I am seeking to insert the word "shall" instead of "may" in the first line of Clause 18. The amendment seeks, as far as any legislation can, to make grants mandatory rather than discretionary. I shall not speak of the value of marriage support services because the noble and learned Lord the Lord Chancellor is firmly committed to them, as are a good number of other noble Lords. I hesitate also to put forward a case 55 of financial hardship because so many charitable bodies today are doing that, but it is important to place certain financial facts and figures on the record in view of the key role which marriage support services will be asked to play.
§ Over the past 10 years, the contribution of central government funding to each hour of counselling undertaken by Relate, for example, has dropped from 24 per cent. to ,under 10 per cent. of the unit cost. That means that currently Relate has to find £10 for every hour of counselling delivered to supplement the funding obtained from clients and government. The sum which Relate has to raise amounted to £4 million last year and is becoming increasingly difficult to find. Exactly the same story could be told in relation to the Jewish Marriage Council, the Tavistock Institute of Marital Studies, One Plus One, and Marriage Care, the Catholic agency.
§ We are all conscious of the huge cost of divorce to the country as a whole. At present the Government spend something like £3 billion on picking up the pieces of broken marriages, but less than 0.1 per cent. of that sum is invested in marriage support services. A simple way of putting that is to say that for every £3,000 spent on divorce, less than £3 is spent on supporting marriage. However, as I have said, the marriage support services will be asked to play an increasingly important role in that area in terms of marriage preparation, marriage research and marital counselling, all of which we believe in. It is important that they are funded adequately. I beg to move.
§ Baroness Young
My Lords, before my noble and learned friend the Lord Chancellor replies to the points made by the right reverend Prelate the Bishop of Oxford, perhaps I may ask about the general funds which are given to such organisations. What proportion of the money that is given actually ends up helping married couples, either in terms of counselling or subsequently?
It is often said—some of the material that I have read from such organisations indicates this—that those organisations counsel quite a number of other people, such as unmarried couples, homosexual couples and lesbian couples. As I have said before, if public money is going into something, it should go to those parts of an organisation which the Bill is designed to support and which I think that all Members of your Lordships' House wish to support. I hope that I shall be given an answer to that question because I have received letters which indicate that there would not be such a long wait for marriage guidance counselling if such organisations concentrated their efforts exclusively on marriage guidance counselling and not on other activities.
§ The Lord Bishop of Worcester
My Lords, I should like to speak on behalf of those who have in principle supported the Bill from the start as being a Bill which has support for marriage and the family at its centre. That is why so many of us have supported the Bill through thick and thin.
56 It is important that the services which support and bolster marriage should be funded because, if we fail on that, I believe that the last state will be worse than the first. We shall be left with a Bill which seeks to support marriage and the family but which is not able to do so. It sometimes happens that splendid legislation passes both your Lordships' House and the other place, but in the end there are not the funds to implement that which has been proposed.
If I may attempt to respond to the noble Baroness, Lady Young, it is possible for there to be pro-rata funding. That happens in a minor way in my own diocese. When I have to ask for the help of, say, marriage guidance counsellors, I can pay for that which they do without necessarily having to subscribe vaguely to their whole enterprise. So, we could deal with that problem.
The cost of divorce to this country is massive, but by comparison what we spend on services to assist marriage is minimal. I hope that we can be as good as our word and have the courage of our convictions. It is good that this Bill has been brought forward by the Government because it shows that they are concerned about the state of the nation. I hope that they will back it with the necessary funds.
§ Lord Elton
My Lords, I think that there is a consensus that there shall be marriage support services and that they shall be financed with the assistance of public funds. I suggest that there is also a consensus in favour of the proposition advanced by my noble friend Lady Young that that money should be directed to the purposes of the Bill specifically and not elsewhere.
I rise only to ask my noble and learned friend—I regret that I have not given him notice of this—whether he has thought further about the point that I raised in Committee when I drew attention to the need for some form of preparation during education for the responsibilities of marriage now that it comes so early in life. Indeed, parenthood often comes before the end of a school career.
I suggested that Clause 18(1)(c) should embrace research into the effects of education on marital breakdown. My noble friend did not say that that activity would fall within the definition of this subsection, nor did he go so far as to say that the money would be spent in that way. I hope that he will be able to reassure me on the definition, either now or later in writing. Amendment No. 94 appears to be grouped with Amendment No. 93. One wonders whether the noble Lord, Lord Habgood, will speak to that or whether it will be debated separately.
§ 6 p.m.
§ The Earl of Perth
My Lords, I should like to support the amendment of the right reverend Prelate the Bishop of Oxford. We are grateful for the noble and learned Lord who introduced the clause. It was introduced specifically to help with the problem of marriage counselling. But I feel that the word "may" does not truly represent the feeling of the House and that what is required is "shall". Although it will still be qualified by the words "with the approval of the 57 Treasury", it shows that the House is extremely anxious that that should happen. I very much hope that the amendment will be accepted and that the clause introduced by the noble and learned Lord the Lord Chancellor will to that extent be strengthened.
§ Baroness Gardner of Parkes
My Lords, I should like to speak to Amendment No. 93. However, I would have liked to speak also to Amendment No. 94. I see that Amendment No. 94 in the name of the noble Lord, Lord Habgood, is grouped with Amendment No. 93, but he has not moved it.
§ Lord Habgood
My Lords, I thought that it might be appropriate to take Amendment No. 94 separately. However, I have been persuaded that it should be grouped with Amendment No. 93, because essentially it is a probing amendment. It does not cover the same ground as Clause 18. I do not believe that mediation is included under support services, nor does the particular issue that I wish to raise come under Part II of the measure which deals with the financing of the mediation services.
The point of the amendment is the immediate concern about interim finance if the mediation services are to expand and provide effective central control of standards. When the Act has been running for some time and money comes in through legal aid there may be some other arrangements, as opposed to direct funding, to enable the mediation services to be financed through legal aid. But the particular problem is immediate. We are well aware that mediation is crucial to this Bill, but the fact is that without more resources the present mediation services may not be able to cope with the demands which will be made upon them. They are very small. The central organisation is very small. There is a danger that all kinds of enthusiastic would-be mediators will rush forward to fill the vacuum, unless the central administration of the various mediation bodies can be strengthened.
It is all the more important because the noble and learned Lord has made clear that he does not himself wish to monitor and supervise the standards of the mediation services. Therefore, it is essential to have strong central bodies to ensure that this is done and are sufficiently widespread in the nation as a whole so that they will be the obvious people to turn to, not just those who set up a badge as a mediator, which it is perfectly possible for anybody to do at the moment.
The expansion, consolidation and piloting of the experiments, which the noble and learned Lord has said he wishes to undertake over a period of about two years following the passage of the Bill, will take place at a time when presumably money will not be coming in via the legal aid channel. One looks for a guarantee of interim payments to allow the mediation services to do what must be done if the Bill is to be effective.
It may assist your Lordships if I say a word about how National Family Mediation is financed. I declare an interest because I am one of the patrons of that body. There are 60 local services to which approximately 650 trained mediators are attached. All of these local services are separate charities, and most are 58 self-sustaining. They are funded from a variety of sources. They get some money from legal aid; some comes from the probation services; some charge client fees; some receive support from local authorities; and they also seek charitable funds. These are held together in National Family Mediation by the central services which consist of three paid employees to cover the whole nation. Those central services are concerned with such matters as: general policy, professional standards, the education of mediators, public relations, monitoring local services, appropriate literature and keeping in touch with mediation bodies on an international basis. All of that is done by three full-time members on a budget of less than a quarter of a million pounds. There is no core funding from the Government for that service. Unless there is core funding this tiny organisation will simply collapse.
There are pressures to bring together the three main mediation services in the country to form a so-called college of mediators which will provide training and assure standards. That cannot be done as long as the mediation services are dependent upon finance from trusts, charities and, as to a small amount, affiliation fees. For a variety of reasons (which I need not go into) trust money is drying up, not least in anticipation that if the Government put through this legislation they will pay something for it.
I fully recognise the problems faced by the noble and learned Lord the Lord Chancellor in trying to secure finance from the Treasury. I deeply sympathise with him. But there is a question of credibility here. The sums required are extremely modest but are crucial to the successful implementation of the procedures. Therefore, although I do not press the amendment, I very much hope that he can give an assurance that, first, he understands the problems and, secondly, that help will be forthcoming.
§ Lord Coleraine
My Lords, as a patron of National Family Mediation—which we know is the larger of the two organisations that look after mediation at the moment—is the noble Lord telling us that unless substantially more funding is available it will not be possible to get mediation off the ground and properly piloted during the two-year period presently anticipated by my noble and learned friend?
§ Lord Habgood
My Lords, what I am saying is that the operation of the Bill is put at risk unless there is substantial funding, because at the moment mediation services deal with about 15 per cent. —I am quoting off the top of my head—of divorce cases. If that is going to expand to what we hope for under the Bill, it must entail an expansion of central services. One is talking about a whole different scale of operation which will need the funding if it is not to collapse under its own weight.
§ Baroness Seear
My Lords, I should like briefly to return to Amendment No. 93 which presses that there "shall" he funds available for conciliation. That is a matter which has been of great concern to all of us interested in the Bill throughout these discussions. I should of course declare an interest in that I have a longstanding connection with the Tavistock Institute for Marital Studies.
59 Without conciliation, the purposes behind the Bill cannot be achieved. Conciliation is not cheap for the individuals concerned. It is carried out usually on a one-to-one basis. It is time-consuming, and it has to be done by properly trained, skilled people who cannot come cheaply. Unless there is a requirement in the Bill that money should be available for conciliation, the purposes of the Bill will be undermined.
Mediation in the sense that the term is used in the Bill is extremely important. It is part of the Bill. We understand that there will be money for mediation in this sense, but mediation without the availability of conciliation, which will not cost money to the people who need conciliation, will not achieve the Bill's purposes. I press the noble and learned Lord the Lord Chancellor to recognise that this is at the very heart of what he is trying to do if he is trying to save marriages. On a purely financial basis, we have all heard this evening—we knew before—how much divorce costs. Conciliation, properly done, saves us money. That, if for no other reason, should commend the amendment to the Government.
§ Baroness Faithfull
My Lords, I support the noble Lord, Lord Habgood. One of the problems is that the mediation service—I say this as a fellow patron—has grown and is being used far more than previously. The staff have not only to deal with all the extra cases; they have to raise the money. People who would be good mediators are at the moment having to raise money in the local offices. One of the difficulties is that the mediation service is becoming well known and well used, and therefore needs the money to run the service.
§ Baroness Gardner of Parkes
My Lords, I am worried by both amendments. I oppose Amendment No. 93 because I believe that it is better to retain the word "may" rather than to use "shall". Although in principle I am very much in favour of marriage counselling, I should like to know how anyone judges its success to determine whether the money is being well spent. We have no idea whether many of these counselling services benefit people and in what sort of numbers.
We do not know what standards are expected of marriage counselling. In the health service we are all obliged to fit in with the Patient's Charter and achieve certain results. Will people be expected to achieve certain results with mediation and marriage counselling? I shall be interested to know.
When I listened to the noble Lord, Lord Habgood, I was worried, as I was when I attended the Law Society meeting when mediation was talked about. He confirmed what I said earlier this afternoon, that it is a huge growth industry. Anyone can set himself up—he confirmed this—as a mediator. After I left the Law Society meeting I spoke to several people who had no jobs whom I thought might well qualify as mediators. I said, "There you are, there's an opening for you. Look into that. Find out how you get into this College of Mediators, because it will be something for the future. It might be a job for you".
60 There must be some standards. The Law Society told us that it has no fixed standards and that anyone can set up as a mediator. The noble Lord, Lord Habgood, has just said that. If these proposals are to be effective, there will have to be proper standards. He said—this has been confirmed by my noble and learned friend—that he will not supervise. It sounded as if no one will supervise. That worries me. We will be building up a huge counselling and mediation industry. We must be sure that it will be run in the right way and to the advantage of people and in support of marriage.
My noble friend Lady Young raised a good point. She said that many of the resources are not being spent on marriage. That is another relevant point. All voluntary organisations are having trouble surviving in terms of funding. At one point we heard from the noble Lord, Lord Habgood, that the mediators were self-sustaining—that was the phrase he used—whereas a few minutes later we heard that they needed all this extra money. There was even a suggestion that legal aid would pay for the mediators. My experience of most things that receive legal aid is that they grow faster than anything that does not receive legal aid. Again, I have reservations.
My greatest concern is to ensure that these people are suitably qualified. I should like to know what standards of qualification are being set up. I should also like an assurance that money given to them will be money well spent.
§ 6.15 p.m.
§ The Duke of Norfolk
My Lords, when the noble and learned Lord replies, I hope that he will clarify a position which I thought was definite. In earlier definitions in the Bill, "mediation" has meant looking after the break-up of the marriage, counselling the two parties who are to divorce and making arrangements for the sad distribution of assets and for the future of the children.
I, too, attended the Law Society meeting in the Moses Room where it was categorically said that most of the mediators will be lawyers or solicitors who know what they are doing. It was almost a closed-shop debate. I see my noble friend Lady Gardner of Parkes nodding her head. It was said that only lawyers and solicitors could be mediators and that they would all be rewarded through legal aid.
The right reverend Prelate used the word "mediator" to cover that and in relation to marriage support agencies. As I understand it there are two things: one is mediators dealing with divorces, which is very sad, who are paid for out of legal aid; and then there is this new proposal of marriage support agencies, about which the right reverend Prelate the Bishop of Oxford has spoken, which we are introducing in the Bill. We hope that they will be rewarded by the Treasury through Votes to the Lord Chancellor who will control them with his watchful eye.
I urge that these services are supported strongly and funded properly. The kernel of the Bill is that these agencies will be able to prevent marriages ever reaching divorce. They will succour the needy who are worrying 61 about their marriages. The Lord Chancellor will see that those agencies give money to heal the marriages which are going wrong.
§ Lord Northbourne
My Lords, I think that the noble and learned Lord the Lord Chancellor will agree that the Bill will just not work unless there is adequate provision for mediation and for the reconciliation services. While I agree with the noble Baroness, Lady Gardner of Parkes, that there is a need to control the quality of the services available, I support the idea underlying the amendments but question whether they go far enough. I am not so worried about the word "may" as about the words "with the approval of the Treasury". Can the noble and learned Lord convince the House that the Treasury is likely to support mediation and conciliation services to the tune that is required if the Bill is to work? If not, should we not be introducing an amendment to "lay upon the Lord Chancellor the duty of ensuring the provision of adequate services for reconciliation and mediation"? Is it not the case that in Australia the obligation is laid upon government to provide adequate services for mediation?
§ The Lord Chancellor
My Lords, two distinct matters are raised in Amendments Nos. 93 and 94 and it is important to distinguish between them. First, the amendment moved by the right reverend Prelate the Bishop of Oxford changes "may" into "shall". I understand what is behind the proposal but it is obvious that it would not do very well to have "shall" in that position immediately preceding the phrase,with the approval of the Treasury, make grants in connection with",followed by a list of projects. Obviously, "shall" in that situation is worth while only if it is enforceable and no enforceability is easily associated with a clause such as that.
However, we must not lose the perspective to the operation. It is the first time that there has appeared in any statute the authority to give grants for these particular services. I hope that your Lordships will feel that it is a step forward to get such a recognition into a Bill. Obviously, it is not done without a degree of persuasion of others because many people have ideas about how they would like to spend such money and they are in competition with us.
The second point that I wish to make bears exactly on the matter raised by my noble friend Lady Young. The grants referred to under Clause 18 are in connection with the provision of marriage support services, which I would take to mean services being in support of marriage and not in connection with other types of relationships such as those she mentioned.
Secondly, I believe that research into the causes of marital breakdown is extremely important. It includes the issue to which my noble friend Lord Elton referred. If one of the causes of marital breakdown is that people get married young without adequate preparation for marriage, which is a defect which could be replaced or repaired, that would he covered by the proposal. I am not saying which project we would wish to support. As I have explained, we have already studied fully the types 62 of service which are presently available. We have arranged for a seminar for people in that area to take place on 3rd April, when we will consider how the matter should be taken forward. Research into ways of preventing marital breakdown is closely related to the second project. Having found the causes the question is, what cures can be applied?
I explained during the course of the Bill that many people associate large costs with marriage breakdown. I have no doubt whatever that there are such large costs. Therefore, it is obvious that, if one can demonstrate that £1 spent in this area prevents large costs in other areas, the case for securing Treasury approval would be strong because the Treasury is no more anxious than any of your Lordships to pay out taxpayers' money consequential on marital breakdown if that can be prevented.
Therefore, one of the matters which must be attended to in any funding of projects under this clause is the arrangement made by those seeking the funding to demonstrate the effectiveness of their work. Some who have already been funded have given some demonstrations of the extent to which their work is effective. I believe that something of that kind is essential in this type of progress. Therefore, I strongly take the view that adequate support for these headings is required. The level of support which from year to year these services will receive will depend crucially on the extent to which they can demonstrate success in the objectives to which I have referred.
I have noticed that one of the objections sometimes made to the Bill is that it will produce a great army of people hitherto out of work who will suddenly find employment in this area. Your Lordships may take it that I have no intention whatever of moving down that road. I believe that such work is skilled work and that it is capable of being tested in a way that is not easy as regards much other work. My noble friend Lady Gardner referred to the health service. Your Lordships know that it is not always easy to be absolutely clear about the effectiveness of a particular treatment. Indeed, to some degree medical negligence litigation is concerned with that very problem.
I believe that this particular type of work in aggregate is capable of being tested quite profoundly. Therefore, I say to the right reverend Prelate that, first, an amendment of this kind would not be textually suitable and, secondly, that it is important that any arrangements made in this area involve a test of their success. I strongly support that type of service and I believe that it has much to offer. As the right reverend Prelate said, the importance of this Bill is that it emphasises how central to our nation are the institution of marriage and support for that institution.
Your Lordships may take it that on the basis that I have explained I shall certainly give my commitment to do everything possible to produce as good a service as one can. However, that must depend on the service demonstrating its success in avoiding the development of marriage breakdown. Standards and so forth will be reflected in the degree to which the services are successful. I hope that the right reverend Prelate will feel that that is appropriate in this connection.
63 As regards Amendment No. 94, I have already made a grant towards developing standards for the mediation profession. However, as regards legal aid, I am expecting that mediation will prove to be a useful and more appropriate alternative to legal aid in many of the disputes that will be covered in the subject matter of this Bill. That too requires skill and my noble friend Lady Gardner of Parkes may rest assured that there is no question of my authorising the payment out of legal aid money to anyone who is not appropriately qualified to act as a mediator. I believe that during the course of the remarks I heard it said that the Law Society was saying that there would be a good number of lawyer mediators. I believe that it is a good profession for lawyers to follow. It has a most distinguished ancestry.
There are also people other than lawyers who may have these skills. Again, it is right that they should be developed. This process is capable of being tested because mediated agreements will be the result in these situations, and the question will be how effective they are and how well they last. So all of this is capable of being tested in a very realistic way.
The noble Lord, Lord Habgood, said that the mediation services would like more money if they can get it. I have not come across many services that are not in that position. On the other hand, these matters are being developed. They have been supported and—subject to the sort of help I have already given in respect of developing the standards to be expected in mediation when this Bill comes into effect—it is right that we should leave matters on that basis. The ultimate funding of mediation, under this Bill, will arise through the legal aid fund, by arrangements properly made under the terms of the legal aid statute as amended by the later provisions of this Bill.
I hope I have answered your Lordships' questions, particularly the point raised by my noble friend Lady Young. It is quite clear that the power in this Bill to make grants is expressly defined as relating to the support of marriage and marital breakdown and the causes and cures of that.
§ 6.30 p.m.
§ The Lord Bishop of Oxford
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his reply. I know that we are all grateful that Clause 18 is there at all. We recognise that it is a considerable achievement.
As to the questions of the noble Baroness, Lady Young, I am quite clear that the main focus of all the agencies whose names I quoted earlier—education or research or marriage counsellors—is marriage in one form or another. Of course, those agencies will probably have slightly different philosophies because, as I mentioned before, they include the Jewish Marriage Council, the Tavistock Institute for Marital Studies, One Plus One and the Catholic agency, Marriage Care. As the noble and learned Lord the Lord Chancellor said, the focus of the Bill is clearly on marriage.
The noble Baroness, Lady Gardner of Parkes, quite properly raised questions about standards and results. I have been pressing for only properly approved 64 organisations to be mentioned in the Bill, and if there is a roster of properly approved organisations that will be one way of monitoring standards and results. I am sure these organisations, being reputable organisations, would not fear in any way a proper critique of their achievements or lack of them. They are professional bodies and open to scrutiny.
I do not have a full set of figures but there are two points which relate to the questions raised. A recent Relate study shows that 25 per cent. of couples who were living apart at the start of counselling were living together six months after the completion of counselling. Secondly, 10 per cent. of couples who thought that their marriages had ended said that as a result of attending counselling with Marriage Care they had discovered the energy to start again. Those figures are by no means definitive, but I am sure their work would be open to any scrutiny. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 94 not moved.]
Lord Simon of Glaisdale moved Amendment No. 95:
After Clause 18, insert the following new clause—