Separate Representation of Children and Their Interests

Part of New clause 10 – in the House of Commons at 7:30 pm on 17th June 1996.

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Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers) 7:30 pm, 17th June 1996

I should like to express my gratitude to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) for his tireless efforts on behalf of children's organisations. Throughout the Bill's stages, he has spoken thoughtfully and argued persuasively on this vital area, which I know concerns hon. Members on both sides of the House. He has contributed to some significant changes in the Bill—all of which strengthen it—in order to assist the innocent victims of divorce: children.

I should also like to pay tribute to the children's organisations, which have conducted a worthy campaign for the interests of children to be taken into account in the Bill. While we may not always have been able to agree the details of changes, there has been nothing between us on the principles behind them.

The Government believe that the voice of the child should be heard in proceedings regarding his or her welfare. There are already a number of ways in which that is provided for. The voice of the child can be heard through the report of a welfare officer under the Children Act 1989 and through the offices of the official solicitor in private law proceedings in the High and county court, and, under section 10(8) of the Children Act 1989, a child may bring his or her own application, be represented and apply for legal aid for such representation.

Expanding the guardian ad litem service in the way proposed by the hon. Gentleman's new clause, however, would duplicate the work of the family court welfare service, which provides welfare reports to the court in private law proceedings and which may be asked to ascertain and represent to the court the views of the child. Expanding the guardian ad litem service in that way would also require additional resources, as well as duplicating existing ones.

New clause 14, tabled by the official Opposition, which proposes a rule-making power to allow for change, is preferable to new clause 10, because the latter applies only to the court's consideration of the arrangements for the children, and would thus not extend to matters such as domestic violence, separation or divorce proceedings. Nor does it allow for any control of the procedure. For example, it does not express a specific intention on the type of cases in which such an appointment would be appropriate, and would allow for the appointment of both a guardian ad litem and a court welfare officer, who may be performing a similar function.

New clause 10 enables a court to appoint a guardian ad litem if it decides in the course of exercising its power under section 41 of the Matrimonial Causes Act 1973 that it may need to exercise its powers under the Children Act or if there are already proceedings under the Children Act pending in relation to any child of the family. However, it provides for the guardian to be appointed by the court only in exercise of its powers under that new clause—which puts section 41 of the Matrimonial Causes Act in the Bill—and not in exercise of its powers under the Children Act. The court already has the ability to request a welfare report. New clause 10 does not specify whether that or the appointment of a guardian is to be preferred, and there might be duplication if a court welfare officer has already been appointed to report in the pending proceedings.

The Government would also wish to consult the children's organisations and those who currently represent the interests of children in court proceedings, in devising an effective system. That approach would be consistent with new clause 14.

Amendment No. 106 ties in with a number of amendments made to clause 24, which will be considered later. It proposes that the code of practice required for a contract with the Legal Aid Board, which is introduced by later amendments, should stipulate that mediators have in place arrangements designed to ensure that the parties are encouraged to consider whether their children should have an opportunity to speak up during mediation to express their own wishes and feelings. The Government are happy to support the amendment.