Matrimonial Disputes (Conciliation)

– in the House of Commons at 1:27 pm on 29th July 1983.

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Photo of Mr Keith Best Mr Keith Best , Ynys Môn 1:27 pm, 29th July 1983

One of the great tragedies of modern life is the high number of divorces, though after a sharp increase up until 1977 it seems that the number of petitions has now levelled off. I invite my hon. and learned Friend the Solicitor-General, whom I welcome to the debate, to consider how best we can ease the trauma of the difficulties that result frorn divorce. That is way I have initiated this debate.

We have recently seen published the report of the interdepartmental committee on conciliation. The Law Commission has given approval to the concept of conciliation in matrimonial disputes, where parties can come together and resolve their difficulties with some degree of amity, and so achieve a settlement that is likely to last longer than one resulting from an order of the court.

Indeed, the Lord Chancellor's legal aid advisory committee said in its thirty-second annual report: Parties to matrimonial disputes, unlike those to most other forms of litigation, are likely to be involved in some form of relationship with each other, even after the legal issues have been dealt with. We believe that relationships founded on agreement between the parties are more likely to be workable than those imposed by a court. The interests of children, in particular, are more likely to be served by a relatively harmonious agreement between former spouses than by a protracted legal battle. There are now more than 50 conciliation services of all types in existence, but the longest established has been running for only just over four years, and that is the Bristol courts family conciliation service.

The definition of conciliation should be placed on record, and the inter-departmental committee and those who study these matters in detail have yet to come forward with a better definition than that set out in the final report on one-parent families, which said that by (conciliation) we mean assisting the parties to deal with the consequences of the established breakdown of their marriage, whether resulting in a divorce or a separation, by reaching agreements or giving consents or reducing the area of conflict upon custody, support, access to and education of the children, financial provision, the disposition of the matrimonial home, lawyers' fees, and every other matter arising from the breakdown which calls for a decision on future arrangements. The inter-departmental committee added: In more general terms, and borrowing the language of litigation, conciliation means some kind of structured scheme or facility for promoting a settlement between parties. We live in a time of change in matrimonial law, far more so than in any other period in the history of the law's intervention in matrimonial matters. We have the committee of Mrs. Justice Booth considering matrimonial procedure, which will report fairly shortly. We also have the Lord Chancellor and his Department looking at a reorganisation of the family jurisdiction of the High Court and the county court system with a view to what I hope to see emerge—something along the lines of the concept of a family court. However, I suspect that that will not be as anticipated or hoped for by the Finer committee.

Why do we need conciliation in matrimonial cases? It is perhaps best set out in the inter-departmental committee's report, which says: We take it to be axiomatic that it is generally better for parties to civil litigation, or indeed any dispute, to settle their differences rather than fight them out to the bitter end. In practice this is what happens, without there being any machinery for the purpose, in the overwhelming majority of civil actions started in England and Wales. It goes on to discuss the way in which, in industrial relations and employment law, there is the Advisory, Conciliation and Arbitration Service. Why, when there are so many facilities for conciliation in other aspects of life, should there not be in matrimonial matters?

Although many civil cases are settled before getting to the stage of litigation in forum, nevertheless, if conciliation helps to achieve a settlement, it should be welcomed and espoused. I restrict my remarks to matrimonial matters, where conciliation is particularly necessary.

How was the report greeted by the media? I fear not particularly well. The Guardian called it A report that puts the family last. It went on to say: Over 100,000 divorces this year will involve children under the age of 16. Over 1,500,000 children will suffer from the divorce of their parents in the next decade … Having concluded that the State should be concerned, the committee went on to reject the best way of providing help: a national conciliation service for separating couples. I have received communications from Gwyn Davis, research fellow at Bristol university, Mr. Wells, the assistant chief probation officer of Avon probation service, the Swindon family conciliation service and others. They all expressed concern about the way in which the interdepartmental committee's report seemingly dismisses out-of-court conciliation services. They all believe that we should have a national conciliation service out of court, and they welcome the in-court services.

I do not wish to digress by giving a definition of in-court or out-of-court or pre-court conciliation systems. Essentially, the difference is that the in-court system is staffed by experienced court welfare officers, all of whom are probation officers. The learned judge or registrar who is involved in the arbitrament of a dispute between the parties can refer the matter to that system. By the very nature of their great experience, those officers act with great understanding, not least because they are responsible for the preparation of court welfare reports. Then there is a myriad of out-of-court or pre-court conciliation services, which are staffed largely by social workers, many of whom are extremely experienced in dealing with matrimonial disputes. Of course, there are many more of those services.

The inter-departmental committee's report welcomes the concept of an in-court service. I am glad of that, because it seems to endorse what many of us have been saying about the need to foster in-court services of conciliation, as it eases the burdens of people who are suffering the trauma of matrimonial breakdown. The report speaks of the need for an amended divorce system in which a place is expressly provided for the conciliation process so that it can be used when it is needed and by-passed when it is not". That points to an in-court service. It is interesting that the report also says: We emphasise, however, that we do not suggest that out-of-court schemes should be discouraged". However, the conclusion seems to be that that there should be no national conciliation out-of-court, pre-court service; that there should be only the in-court service.

I welcome the suggestion about procedural change, although I shall have to look more carefully at the details before deciding whether I fully endorse them. However, I welcome the idea of introducing in-court conciliation as a recognised part of matrimonial procedure. I also welcome the conciliation project unit which is suggested in the inter-departmental committee's report.

We must look again at an out-of-court service. We should not allow this to be the final word on the matter. I hope that my hon. and learned Friend will have much to say on this matter when he replies to this debate. Although the inter-departmental committee did a fine job in amassing evidence, it suffered, as it acknowledged, from a lack of evidence on out-of-court schemes. It could concentrate only on the Bristol scheme, because few schemes have operated for more than a year. Indeed, many of them have started since the inter-departmental committee first sat. Only the Bristol scheme has been properly funded by the Nuffield Foundation and then, fortunately, by the Lord Chancellor's Department and the Home Office jointly.

The report talks about the lack of referrals to an out-of-court service. It should be said that in the Bristol service, out of some 3,000 petitions in a year, 350 referrals were made to the conciliation service. That is more than 10 per cent. We are talking about a national scheme which would cost no more than £80 million, and which might well save much in financial terms, because of the absence of the need for court welfare officers' reports when conciliation is being effected, and the great saving in emotional stress, particularly when children are involved.

I hope my hon. and learned Friend will say that there will be further research into out-of-court schemes and that that will not be allowed to fall flat altogether as a result of the report. After all, the report did not give any accurate definition of a pre-court conciliation scheme and perhaps we should look more carefully at that. When the Booth committee reports later this year, as I hope it will, it may well recommend in its first pronouncement the advisability of conciliation. I hope that no definitive judgment will be made on out-of-court conciliation services until we see that report.

There are savings to be made in pre-court conciliation, even if it is no more than identifying the issues at stake so that the court's job is rendered that much easier. If a judge or registrar is able to identify the issues because the parties have been through a conciliation process, that has its own inherent cost saving because the litigation is likely to be less protracted than it might otherwise be.

I have already mentioned an important aspect, but one which is unquantifiable in financial terms — the reduction of tension and stress for the parties if they are capable of coming together and conciliating their differences by coming to an agreement over the points of conflict between them. One should not minimise the ability of conciliation to lead to reconciliation—in other words, the dropping of divorce proceedings altogether. Indeed, the experience of the Bristol courts family conciliation service is that one in six referrals resulted in reconciliation and therefore divorce did not follow. One cannot treat conciliation and reconciliation as separate concepts. The two go hand in glove and I should like to think that the inter-departmental committee acknowledged that in paragraph 5.10 of its report.

The best people to know whether costs will be saved are the lawyers who are involved. I am somewhat surprised that the inter-departmental committee did not see fit to consult the Bristol law society. After all, the lawyers might have been able to give a fair assessment of what savings were made as a result of referrals to the Bristol courts family conciliation service. That was a common criticism made to me by Mr. John Westcott, a solicitor who practices there.

There is a saving in that court welfare officer's reports no longer need to be provided if conciliation is being effected. In paragraph 4.8 the report says: The pattern of bills"— legal bills— is such that there is little prospect of savings unless a small number of cases which are likely to be very expensive are identified at an early stage … and successfully conciliated. That must be an endorsement of the concept of early conciliation — perhaps a pre-court conciliation service rather than just an in-court conciliation service.

The report goes on to say: Accordingly, it would seem that the best hope of achieving substantial legal aid savings lies in developing court procedures that promote as many settlements as possible without recourse to Conciliation and facilitate the timely identification of potentially expensive cases that are amenable to Conciliation, and relatively cheap arrangements for Conciliation which are capable of achieving a high success rate in potentially expensive cases. I do not quarrel with that conclusion. All I say is that one needs to look carefully at whether the greatest savings can be made at an early rather than a late stage.

I mentioned court welfare officers' reports. A senior probation officer at Leicester's family court unit made the following comment in a letter to the inter-departmental committee. He said: We have been able to contain the voluntary sector of our work without any increases in resources in our Unit. Needless to say this may well become necessary in time, but our reasoning is that one man's voluntary conciliation would be another man's court report (eventually). That clearly establishes that there are savings there.

I wish to conclude by drawing a few threads together. The inter-departmental committee's report suffers from a lack of clear evidence. I make no criticism of it for that, because it was dealing with new pre-court schemes. It is only since 1 January' this year that we have been gathering national statistics on the domestic jurisdiction of magistrates' courts, something that should have been done long ago. It is perhaps in line with the present fluidity of this branch of the law and the way in which it is evolving that we are suddenly discovering that all sorts of statistics that we need to come to a proper conclusion on these matters are not readily available or not available for a significant period in the past.

We need more statistics on conciliation schemes. That is why I hope that there will be funding not only for the project unit of an in-court scheme, which I welcome and with which I have no quarrel—it is superior to other court schemes and we need a project unit for that—but for research into pre-court and out-of-court schemes to ascertain their true validity.

The responsibility for providing help for couples being divorced falls between the Lord Chancellor and the Home Office. That cannot be satisfactory. I hope that when departmental responsibility is considered something will be done to ameliorate that in the near future. There is a difficulty in distinguishing between in-court and pre-court schemes, because some are combined. Therefore, there is a penumbra—a grey area in which one links with the other.

When we talk about conciliation we should be talking about a change in attitude to matrimonial breakdown by the parties and by the law. That change of attitude needs to be just as fundamental as the change from the concept of matrimonial offence to the concept of the no fault irretrievable breakdown of marriage enshrined in the 1969 Act. That was the most fundamental change in divorce law that we have ever seen. Conciliation is another fundamental change. It has to be accepted as such, not just as a by-the-way matter or a procedural innovation that may be of slight assistance, but as a brand new attitude towards the way in which we treat divorcing couples.

That fundamental change must be to effect conciliation wherever possible and I hope that ultimately it will become the way in which divorce law deals with matrimonial matters. We can all agree on one thing, which is that if parties can come together and settle their disputes amicably, particularly in the minefield of matrimonial law, there will be many more lasting settlements and we shall have made a major contribution to the development of the law and to the health and happiness of our people.

Photo of Sir Patrick Mayhew Sir Patrick Mayhew , Tunbridge Wells 1:43 pm, 29th July 1983

There could be no more authoritative and persuasive advocate of the cause of conciliation in matrimonial disputes than my hon. Friend the Member for Ynys Mon (Mr. Best). He has long had a great interest in that subject. He submitted most valuable evidence to the interdepartmental committee of which he spoke. He made his views helpfully known to the Lord Chancellor. I know that my noble and learned Friend will wish to study my hon. Friend's speech carefully as a further contribution to the issue.

I entirely agreed with my hon. Friend when he said that we all had to seek the best means of easing the trauma of divorce. He referred in conclusion to the enormous contribution that conciliation could make in easing unhappiness and smoothing the entire process of matrimonial litigation. That subject is still in its infancy, so we must examine all the evidence and approach the subject with an open mind, as I believe that the interdepartmental committee did in producing its recent report.

The object must be to reduce areas of conflict, and I express my admiration for the increasingly large number of volunteers who do their best to achieve that in out-of-court schemes. The wider the variety of schemes about which we have experience, the better. Nobody has a monopoly of wisdom and knowledge. We must examine closely the full range of experience. The interdepartmental committee has done just that, but the door is not closed for further consideration of evidence as it becomes available.

The interdepartmental committee consists of officials from the Lord Chancellor's Department, the Home Office, the Treasury, the Department of Health and Social Security and the Central Policy Review Staff. Its terms of reference required it to review current arrangements for conciliation, to report on the nature, scope and effects of existing services and to consider whether, and if so how, these or further facilities might be promoted or developed within existing resource planning, taking into account any consequential changes in law and procedure. The report was published on 15 July.

In recent years there has been a considerable growth of interest in matrimonial conciliation as a means of reducing conflict between the parties to actual or potential matrimonial proceedings. I have already referred to the proliferation of conciliation schemes, of which the best known is in Bristol. They take various forms but they have the aim of assisting the parties to deal with the consequences of the breakdown of their marriage by reaching agreement or reducing the area of conflict in matters such as custody and access to the children.

Broadly speaking, the schemes fall into two types, one of which is usually known as the out-of-court scheme. That scheme is run independently and outside the court, often providing a service at an early stage in the breakdown of a marriage. How early it should come into play is a matter of judgment, and I note my hon. Friend's comments on that. Some of the schemes are completely voluntarily run and funded. Others are organised by divorce court welfare officers. The other type of scheme—the in-court scheme—generally forms an integral part of the divorce procedure for certain cases and involves the participation of divorce court welfare officers or registrars or both.

The committee invited written submissions and received 104 from a wide range of individuals and bodies. It also set up a full-time study group to make a representative sample survey of conciliation schemes. As my hon. Friend rightly pointed out, however, the newness of virtually all the schemes meant that the amount of reliable information that could be obtained was limited. One of the committee's recommendations was, therefore, that certain matters should be investigated further.

Those matters were the variations in settlement rates between different county courts and the connection between these differences and variations in operating efficiency, the reasons for the high level of first use of certain magistrates matrimonial courts and the effect of this high use on the workload of county courts, the other disadvantages and possible drawbacks of magistrates courts being the courts of first resort in cases of matrimonial conflict, and the reasons for variations between courts in the ordering of welfare reports. My hon. Friend will agree that we must find out as much as possible about the reasons for the variation because much of value can be learned.

The study group examined a sample of in-court and out-of-court schemes. On the out-of-court schemes, it gathered as much information as possible from the Bristol courts family conciliation service, which is the longest established scheme of its type. From its findings at Bristol, the study group established that the cost of providing a publicly funded out-of-court service would be between £125 and £135 per case and that if such a service were extended to England and Wales its annual cost would be between £6·6 million and £8·7 million. The study group also estimated that in-court conciliation services cost about £51 for a half-hour appointment and that in-court services extended throughout England and Wales would cost £2·4 million a year.

The committee considered the argument of many submissions that conciliation services could be funded by savings that were generated by their own activities. It examined the effectiveness of schemes to assess what savings might be made. It found that out-of-court schemes have an agreement rate of between 27 per cent. and 38 per cent. In-court conciliation was found to produce a similar agreement rate. Conciliation by welfare officers in the course of their welfare reporting duties was found to produce an agreement rate of 50 per cent. of referrals amenable to concilation.

Based on the appropriate foundation for such a calculation, the committee concluded that an out-of-court conciliation service in England and Wales could not be funded by savings generated by its own activities and that it was far from clear that in-court services could be so funded.

However, the committee's evidence showed that there might be scope, because of the benefits of shared overheads and the possibility of savings to the time of divorce court welfare officers, for in-court schemes to be developed within existing resource planning.

The committee recognised that the objectives of conciliation are constructive, largely derived from compassion and a desire to improve the human condition, and that more should be done to achieve them. It was impressed by the enthusiasm and commitment of those who work for conciliation, by the many who freely give their services for no material reward and by the speed at which new schemes and services are growing all over the country.

The committee was, however, obliged to consider how those objectives might be achieved within existing resource planning and to what extent improvements to the existing system, rather than a new service, were needed.

On the evidence available, the committee was persuaded that conciliation is valuable in some cases. It concluded that out-of-court schemes did not, overall, save money and that they appeared to be less cost effective than in-court schemes. The committee was not able to establish sufficient grounds to justify Government funding of out-of-court schemes. It also concluded that conciliation was best provided as an adjunct to the court system, but that the many different types of in-court schemes and their costs and effectiveness should be examined more rigorously.

The committee accordingly recommended that such examination should be carried out by monitoring the operation of some different types of in-court conciliation scheme and that, for this purpose, a small unit under the guidance of an advisory committee should be created.

The committee made further recommendations for consideration by the committee under the chairmanship of Mrs. Justice Booth which is reviewing procedure in matrimonial cases in the High Court and county courts. They were that changes in the courts' procedure should be considered with a view to making provision for conciliation and that procedural changes should be geared to exploring the possibility of early settlement.

The committee made two subsidiary recommendations about legal aid procedure which I shall not deal with in detail as they are adequately dealt with in the report. I welcome and am grateful for my hon. Friend's approval of the in-court services for conciliation. I entirely agree that it is desirable that such a scheme should be organised so that it can be used when it is needed and bypassed when it is not. My hon. Friend was right to draw attention to the fact that the committee's report did not suggest that out-of-court schemes be discouraged. However, not enough is known about them to warrant a decision at present — I do not hold out any hope of a change of heart in the foreseeable future—about Government funding of them.

The Government share the committee's view that the objective of conciliation is desirable and well worth achieving, if necessary, by innovative means. In that spirit, the Government are considering closely the conclusions and recommendations of the committee.