Amendment 2

Divorce, Dissolution and Separation Bill [HL] - Committee – in the House of Lords at 4:45 pm on 3rd March 2020.

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Baroness Howe of Idlicote:

Moved by Baroness Howe of Idlicote

2: Clause 1, page 1, line 12, at end insert “first consider whether a divorce order is in the interests of any child of the family and, if the court is satisfied that it is, then”Member’s explanatory statementThis amendment would require the courts to take the wellbeing of any children in the family into account before granting a divorce order to end a marriage.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I shall also speak to my Amendment 14 to Clause 3.

At Second Reading, I expressed concerns about how the proposals in this Bill would bring a profound shift in power from the respondent to the petitioner, because they propose that the petitioner should be able to initiate the divorce with no notice and that the respondent should have no right to contest.

Rather than exhibiting a balanced concern for both parties to the marriage, this Bill is, to a greater a degree than is wise, a petitioner’s charter. In its fervour to create a good outcome for the petitioner and the busy court system, however, this Bill demonstrates not only a lack of regard for the respondent but a complete lack of credible regard for any children involved.

We must not forget that this momentous life event we are debating in this Bill is not merely a life event for children but is officially classified as an ACE—an adverse childhood experience. Adverse childhood experiences greatly increase the likelihood of children facing damaging impacts on health and other social outcomes, such as alcoholism, misuse of prescription drugs, depression, heart disease and intimate partner violence.

My concern in tabling my amendment is that we must have the best interests of the children at the forefront of our thinking, not the objective of delivering the petitioner his divorce as quickly as possible. I am, of course, very aware that some have sought to argue that the proposals in this Bill—in removing fault—are motivated by a desire to minimise acrimony and to make the divorce process as amicable as possible, precisely because this will help any children involved. As I will demonstrate, however, this assertion, which at first glance seems to make sense, is in fact deeply problematic.

First, we need to understand that the vast majority of marriages that end at the moment are already low in conflict. Data from the survey Understanding Society shows that high-conflict warring couples are a rarity among married couples who split in the UK, comprising only 9% of those who split up. In contrast, 60% of married couples who split up were low-conflict and had reported a degree of happiness. Notwithstanding this fact, however, Judith Wallerstein, who conducted a 25-year study on the impact of divorce on children concluded:

“Findings from this study challenge the central assumption of our court policy: namely, that if parents refrain from conflict, issues around custody, contact, and economic support will be settled expeditiously, both parents will resume their parenting roles, and the child will resume her normal developmental progress. But it is manifestly misguided to expect that muting conflict between divorced parents by itself will reinstate the course of parenting observed in intact families.”

When considering the well-being of children and what is in their best interest, we must remember the reality that the post-divorce family, no matter the level of conflict, is an entirely new form of family that radically changes what it means to experience childhood. Elizabeth Marquardt’s research in this regard is particularly powerful. She found in her work that children of divorce are more than twice as likely to agree that “I felt like a different person with each of my parents”; that just over a tenth of young people from intact families can identify with the experience “I was alone a lot as a child”, whereas close to half of those from divorced families can; and that over 18% of children from divorced families agreed that “Sometimes I felt like I didn’t have a home”, compared to only 4% of children from intact families. It may well be nicer for lawyers and parents to sort things out amicably, but it is what the divorce means to a child in the long term that really matters. We must have their well-being at the centre of all our discussions on this matter.

Secondly, we need to understand that it is not high-conflict divorces that damage children but low-conflict ones. Research from Amato, Loomis and Booth using a 12-year longitudinal study found that in low-conflict families, children have higher levels of well-being if their parents stayed together than if they divorced. This makes sense when we step back and think for a moment. Divorce is viewed through the lens of what went before. A low-conflict relationship that ends in divorce simply does not make sense to the child; it comes out of the blue. They start asking why their parents split up when their marriage was good. Was it their fault or did they—the children—cause a rift between their parents? In this context the overriding objective for the Government, if they approach this subject from the perspective of children, should not primarily be removing grounds for acrimony in divorce but taking steps to limit, rather than expand, the actual numbers of divorces.

I understand, of course, that the Government have acknowledged that if the Bill becomes law there will be a short-term spike in divorces, because a number of divorces that are already in play under the current system will be able to conclude very rapidly, together with whatever new divorces are initiated. That would certainly happen. My concern, however, is rather that the Bill will also result in a long-term increase in divorce rates because of the significant reduction in time for reconciliation that it will create.

Between 2003 and 2016, an average of 12,702 more divorces were commenced each year than were ever concluded. Those figures tell the stories of many divorces that did not happen in the context of a divorce timetable that was two or five years, during which there was an incentive to try to save the relationship. Under this Bill, however, people will be able to end their lifelong commitment in just six months. In that very different timeframe, it is inconceivable that the 12,702 figure will not go down, possibly quite radically, resulting in significantly more divorce. While it will help the petitioner get what he wants, it will have quite the opposite effect for many children.

I make three suggestions on the way forward. First, Amendments 2 and 14 are important, because whatever system is in play is only right that someone should be charged with the responsibility of asking whether the divorce is in the best interests of the children. The rights of children must be placed on the face of this legislation, as well as the rights of the petitioner and respondent. I argue that where children are involved, as the most vulnerable party their best interests should trump any considerations of the petitioner or respondent until such time as they have left home.

Secondly, we need to step back and ask whether this Bill, particularly the general timeframe for divorce it proposes, is in the best interests of children, given that it will radically reduce the time for reconciliation the current system provides. Under the current system, over a 13-year period, an average of 12,702 more divorces are started annually than are ever concluded.

Finally, I have a copy of the Government’s guidance for the application of the family test. I do not believe that the Government have yet published their family impact test report, and I suggest to the Minister that we do not proceed to Report stage until it has been published. Furthermore, I suggest that the report must engage directly with the research showing that, first, the main cost to children is not the divorce process, but the consequences of the divorce once concluded; secondly, that conflictless divorce is more damaging for children; thirdly, the impact on the scope for reconciliation of the radical reduction in the minimum time for divorce to just six months; and the likely increase in the divorce rate that will result from this in the long term. I beg to move.

Photo of Lord Framlingham Lord Framlingham Conservative 5:00 pm, 3rd March 2020

I entirely support the amendment of the noble Baroness. Does she agree that while we talk about the reasons for the mental health of young people, austerity, local councils and educational support, we rarely talk about family? We never talk about parents and we never talk about absent fathers. Does she agree that as a country we are in grave danger of completely ignoring the huge distress and permanent damage done to children every year?

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I entirely and completely agree with the noble Lord.

Photo of Baroness Shackleton of Belgravia Baroness Shackleton of Belgravia Conservative

Some of the damage could be avoided by proper education before people have children, to avoid the distress of having children with the wrong person. There is very little education in school to support that.

Photo of Baroness Meyer Baroness Meyer Conservative

My Lords, I will speak to Amendments 2 and 14, in my name and that of the noble Baroness, Lady Howe of Idlicote. Before I do so, I welcome the new concept of divorce by mutual decision through a joint application. Anything that reduces the stress, cost and emotional aggravation of a broken-down relationship must be for the good. In previous debates, many noble Lords have attested to the psychological and emotional damage done to children from broken homes. It is one of the Bill’s strengths that a joint application keeps the door open to reconciliation. I very much support the amendment to Clause 1 tabled by the noble and right reverend Lord, Lord Harries of Pentregarth, for the court to send information about mediation and relationship support services, as this could result in reconciliation, particularly in this type of divorce.

However, there is another dimension to the Bill which has made me really anxious: the treatment of divorce instigated by one party alone. In contrast to the provisions of divorce by mutual decision, the possibility for one party unilaterally to apply for divorce is a step backwards, at odds with our manifesto commitment to strengthen families. As I see it, the Bill’s fundamental weakness, as repeated by noble Lords many times in previous debates, is to discriminate in favour of the applicant against the recipient. I call them the recipient because this person has no right to respond. In practice, it would allow divorce by unilateral denunciation. It removes all rights and protections from the recipient and ignores two of the most contentious issues when a marriage breaks down: the financial settlement and arrangements for the children.

It could result in a situation where the recipient is left without financial provision and even access to his or her children, tantamount in extreme cases to parental abduction. This is unacceptable. It would contravene the UN Convention on the Rights of the Child to see and have access to both parents. It is also especially cruel to those of modest means who cannot afford to hire a lawyer to try to remedy the situation. It is hard to see how such a narrow focus on divorce, excluding money and children, can be justified when they are inextricably linked.

The Bill claims to remove family conflict as much as possible when reconciliation is impossible, but you do not need to go through a contentious divorce, as I have—some noble and learned Lords in this House know about my case—to know that the greatest source of conflict between couples is not about whether or not you want to divorce but about financial settlements and with whom and where the children will live. This is the moment when children really become embroiled in litigation between their parents and find themselves put in an impossible position. This is particularly so today, as children are more and more involved in court proceedings. Judges tend to interview them to find out how they feel and with which parent they want to live —in other words, asking children to choose between their parents. This can often lead to one parent manipulating the child against the other parent, so that when the child speaks in court, they will say bad things about the other parent. Sometimes children are even convinced that they have been sexually abused by one parent.

I speak from experience. I am not a judge; I have not been looking at other people’s cases from the outside. I have been on the inside: I founded a charity called Action Against Abduction. I have spoken to many parents and, indeed, adult children who have grown up after horrible experiences when they were young. We made a documentary about it, and I can tell noble Lords—and this is why I feel quite strongly about the Bill—that the effect on children is devastating. The point about the Bill is that it is fine if people agree, but that does not apply to everybody. The law should protect the most vulnerable, and the most vulnerable are the children. The most complicated cases are those in which parents do not agree. Giving one parent the right to divorce without the courts having even looked at the financial situation or the welfare of the children is very difficult. I hope most noble Lords will help me support this amendment.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 5:15 pm, 3rd March 2020

My Lords, I absolutely disagree that this is a petitioner’s charter. It is a way of bringing a failed marriage to an end. If noble Lords think about it, if one member of a couple says, “This marriage is at an end; in my view it has irretrievably broken down,” what on earth can you do about it? I am not sure whether noble Lords who have been speaking are expecting a couple who cannot get on to go on living together. If one side says that it is at an end, there is no longer a consensual marriage. Having been happily married for many, many years—

Photo of Lord Framlingham Lord Framlingham Conservative

Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

Of course there are wonderful situations where reasonable couples talk it through and decide not to do it, whether for themselves or for their children. In some cases, that works and in some cases it does not. But there is no doubt that there are many, many people who seek to bring a marriage to an end because, from the point of view of that person, their marriage is no longer one that that they can endure. A lot of people leave. In the famous Owens divorce case that went to the Supreme Court, the couple are still married because five years is not up and there was no consent by the husband. The wife did not stay: she is not living with the husband who would not allow a divorce; she has moved out. There they are living separately, but not divorcing. Is that a happy situation?

The Bill is not a petitioner’s charter; it is an opportunity taken by the Government—and I congratulate them—to deal with the very important research that shows that unhappy marriages are not good for children. I do not understand how, if a couple do not get on, or if it is a case of domestic abuse—and we know how serious domestic abuse is—and the victim of the abuse wants to bring it to an end, they should not be allowed to do so. I cannot believe what is happening to the children while she—it is usually a she, but not always—remains in the house with the children and the domestic abuser. There is a great deal of evidence about that.

Fortunately, most parents, when they bring their marriage to an end, are civilised about it and about the children. The important thing about this Bill is that it is dealing with the issue of divorce and leaving the two extremely important issues—the most important issues of all—of what happens to the children and the financial outcome to be dealt with, I hope, in further legislation. The issue of children does not have to be dealt with in further legislation; the various Children Acts have dealt with that, whether they are the children of those who are married or of those who are not. Finance desperately needs changing—I suspect that the noble Baroness, Lady Shackleton, will say more about that today. It absolutely needs to be looked at, and I hope that the Government will go for a consultation paper on how we can improve legislation that dates back to as long ago as 1973, and which certainly needs an update. However, that is not a reason not to have the Bill.

Photo of Baroness Shackleton of Belgravia Baroness Shackleton of Belgravia Conservative

This is not about the finances. When the noble and learned Lord, Lord Mackay, brought in the Children Act, it took away the stigma of custody. That Act as been a godsend to all of us, as we do not have to identify which party has care and control—custody. It has been the most enormous success, for which everybody who practises in this field is eternally grateful. I suspect that it was considered very novel at the time.

People forget that most responsible solicitors, when somebody who wants a divorce comes to see them, go through with their clients the possibility of not getting a divorce. I believe passionately in marriage—I am a patron of the Marriage Foundation, which supports the Bill—but by the time somebody wants out, they want out. I cannot tell your Lordships how many people are shocked when I say to them, “Are you sure you really want this? It’s not necessarily greener on the other side.” They say, “Do you really think I saved up the courage to come and see you to be told to go back and try a bit harder?” Once the game is up and the marriage is over—once it is dead—clinging on to it is not in the children’s interest at all. People need to move on. You cannot make somebody who is unhappy happy. It takes one person to make the marriage unhappy and two people to make it happy. The Bill goes some way towards addressing that problem.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I will just finish with the two further points I wanted to make.

On the amendment moved by the noble Baroness, Lady Howe, with which, as noble Lords may have gathered, I do not agree, I cannot see how a court can adequately assess whether the children will be better off if the parents, one of whom wants a divorce, are still together or separated. There will be a difficult balancing act for the judge, and it will take a long time, because the family courts are seriously overburdened. How on earth will you find time to do this, and between a couple who will not be represented? As the noble Baroness, Lady Chakrabarti, said, there is no legal aid for couples who divorce, so the judge will have two people at odds with each other, with one or perhaps both determined to be divorced, and the children in the middle. The children ought to be informed of what is going on, but very often they are not. They need help at that time from parents who do not realise that they need help, and they particularly need information. But how on earth is the judge—or the magistrates, but in particular the judge—to say to the couple, “What is going to happen if you’re together or if you’re parted? How on earth am I to find out which way the children would want it to be?”? Particularly in cases where there is domestic abuse, the sooner that couple is parted, the better. So I am very concerned about this proposal.

Of course, we should be very careful about what we do regarding the welfare of children. However, research from the University of Exeter and the Nuffield Foundation found that where the parents cannot agree, very often the children would be better off by having them separate, and what their future ought to be can then be dealt with under the Children Acts.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat

My Lords, I can see the sentiment behind considering the interests of the children in this matter. We will all have been moved by the testimony of the noble Baroness, Lady Meyer, about the terrible experience that she and her children underwent, but this amendment would hand the court the impossible task of deciding what is in the children’s interests without the mechanisms to do so, as the noble and learned Baroness, Lady Butler-Sloss, just said.

How would you implement a judgment forcing parents to stay together in the children’s interests? You cannot force a couple to stay together any more than you can order warring parents to create a loving environment. I hope that we are past the stage where parents stay together for the sake of the children—unless it is a mutual voluntary agreement—because, on the whole, that has been shown to do more harm than good. Children may fare better from having two loving parents who live in different places, often with different families of all kinds. Love and the secure knowledge that they are loved are what matters, no matter who makes up their family. Research has shown that parents are usually the best judge of what is in their children’s interests. Where this is not feasible, the family courts are there to help.

I am afraid that we will not support the amendment from these Benches.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP

My Lords, I am pleased to support Amendments 2 and 14 in the name of the noble Baroness, Lady Howe.

I note with interest that these amendments were tabled in the last Session in another place by the right honourable Frank Field, who served with great distinction from 1979 until last November as the Member of Parliament for Birkenhead. He made a significant contribution to children’s issues and chaired the Field review on early years intervention. I am sure he will be pleased that the noble Baroness has taken up these amendments, which could not be debated in the other place.

Divorce affects a community: the adults involved, their friends and families and, of course, the children. The likelihood is that the effects on most children will be long-lasting. Children have to watch their parents go through a divorce, then continue their lives afterward. The research base demonstrating the damage to children from divorce is so widespread—the fact that it is now recognised as an adverse children experience, or ACE, has already been alluded to—that I will not detain the House by looking at it in any detail other than to note that family breakdown is now recognised as the biggest factor behind the UK’s child mental health crisis. More than a third of children whose parents had split up reported poor mental health, compared with a fifth of children with parents who were still together. Moreover, Hetherington and Kelly’s research interviewing the children of divorce later in life revealed that 20% to 25% of children of divorce continue to suffer lasting social and psychological problems in adulthood, compared with just 10% of children from intact families.

The fact is that, after a divorce, children find themselves in a difficult situation. As has been referred to, Cockett and Tripp’s work in The Exeter Family Study demonstrates how divorce changes family life. Their research showed that in parental conflict during marriage, the child may be able to remain on the sidelines, whereas after divorce, they may be obliged to take a central role; for example, carrying messages between resident and non-resident parents who find that they are unable to communicate face to face. Children in re-ordered families reported that their parents frequently told tales about each other or each other’s new partners. Children also sometimes felt that they had to suppress telling one parent about enjoyable times they had had with the other, or had actually been asked by one parent to keep something secret from their former partner.

Inevitably, the child’s relationship with their parents changes; for example, one may move away and the other may become more prominent in their life while finding their own way after the divorce, potentially with less financial resources. The child might find that they have to move to be with a parent and change school. A recent article on parental divorce or separation and children’s mental health said:

“Marital instability presents not a single risk factor, but a cascade of sequelae for children.”

Much of the debate today has focused on helping lawyers and parents to sort things out amicably. I do not think we can disagree with that, but it is what the divorce means to a child in the long term that really matters. We must have their well-being at the centre of all our discussions, which is why these amendments are so important. We need to understand that, when viewed from the perspective of the best interests of the child, our number one priority should be not low-conflict divorce but promoting reconciliation and—where possible —avoiding divorce. The evidence suggests that low-conflict divorce can be more traumatic for children than divorce with conflict. Research by Amato, Loomis and Booth, who use a 12-year longitudinal study, found that the break-up of a low-conflict family is more harmful to a child than that of a high-conflict family. As Harry Benson explained:

“It’s not the ‘high conflict’ divorce that damages children but the low conflict ones. A low conflict relationship that ends in divorce makes no sense to a child. They don’t see it coming. It comes out of the blue.”

Social scientist Elizabeth Marquardt, the author of Between Two Worlds: The Inner Lives of Children of Divorces, states that

“two-thirds of divorces end low-conflict marriages, in which the parents divorce because they are unhappy or unfulfilled, or have other problems that are not seriously threatening. The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”

I ask the Government to support these amendments, and call on them to publish their full and detailed family test impact assessment on all aspects of the Bill, and particularly its impact on children. I commend these amendments—without which there would have been no focused debate on children—to this House.

Photo of Baroness Meyer Baroness Meyer Conservative 5:30 pm, 3rd March 2020

My Lords, I will make one correction. This amendment is not about forcing parents to stay together. It asks for the courts to be satisfied that the well-being of the children has been considered before the final divorce is granted.

Photo of Baroness Benjamin Baroness Benjamin Liberal Democrat

My Lords, I support Amendments 2 and 4. First, I would like to say how much I agree with the noble Baroness, Lady Shackleton, when she talks about education, because I too have been an advocate and supporter of education on marriage, parenting and relationships for many years. I believe that it would make such a difference to the outcome of the pain and suffering that too many people go through, and which directly affects children.

However, in all our debates on the Bill we must not forget children. They are innocent parties in family break-ups, and everything we decide in this House, or in the other place, must not neglect their interests. So much of our family policy is built on the principle of what is in the best interests of the child. But when it comes to divorce, which can be devastating for children, the focus is too often solely on the interests of adults. This is why I am supporting these amendments.

The stated aim of the Bill is to reduce acrimony in divorce proceedings. The former Minister of Justice stated in the Government’s response to the consultation in April 2019 that this will

“support better outcomes for children.”—[Official Report, Commons, 9/4/19; col. 8WS.]

Supporters of the Bill claim that children of married parents who argue will be better off if their parents can divorce more easily, without having to allege fault. The logic is that parents continuing their marriage is more damaging to children than simply ending the relationship. The truth is that children need not be involved in any consideration of fault, but they are necessarily involved in the fact of divorce. It is the fact of divorce, not the process, that is harmful to children.

The Exeter Family Study found that divorce does not usually reduce conflict for the children. In fact, the opposite is true. The study says that

“the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted.”

Once parents have officially split, the door is open to children being the subject of disagreements in a way they never were before. These findings are corroborated by a US study that shows that children suffer negative consequences even if their parents divorce amicably. The authors express concern that

“some parents are lulled into believing” that a good divorce will mean

“that their children are adequately protected from all of the potential risks of union disruption.”

There are of course exceptions, where divorce is the only and best alternative, especially when it comes to domestic violence and abuse. However, there is so much research that shows the benefits for children of living with their married parents, and the harm the divorce does to children. For example, having married parents increases the chances of getting a university degree. It is better for teenagers’ mental health and increases a person’s chances of getting married themselves. Young people whose parents separate are much more likely to become homeless and get into trouble with the law. Behavioural and emotional problems are also more likely to be found in children from broken homes.

There have been studies suggesting that children suffer more from divorce than from the death of a parent, and that this continues long term. Various reasons are offered for this. One is that divorce is seen as a choice. From a child’s perspective, their parent chooses to leave them, resulting in a sense of deliberate abandonment. There is also the ongoing yearning for reconciliation, while death is final. Children often cling for many years to the hope of their parents reconciling, causing reoccurring disappointment. I state all this to emphasise the importance of children’s interests in these debates. They should be front and centre in decisions about divorce, including in the court’s consideration of a divorce application.

I fear that this Bill will make divorce quicker and easier, leaving less time and motivation to compromise or attempt to reconcile—and children will suffer. I believe that these amendments help to focus on these innocent victims—because, remember, childhood lasts a lifetime.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.

I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.

I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.

I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.

I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.

Of course, not every parent who divorces needs an order about child arrangements, but the law is there for those who require it. Divorce, at least in terms of the legal process, is of limited duration, and a statutory requirement to consider a child’s welfare as part of that process can only ever provide a snapshot of their needs, which are bound to change over time. I notice that this amendment, in its objective, has some similarities to Section 41 of the Matrimonial Causes Act 1973, which, prior to its repeal in 2014, imposed a restriction on the court that it should not grant the final decree of divorce unless satisfied with the arrangements for any children. Practically, that meant that one or both parties had to file a written statement with the court. Evidence submitted to the Justice Select Committee during pre-legislative scrutiny of the Children and Families Bill, which became an Act in 2014 and ultimately repealed Section 41, showed that the courts had only limited opportunity in practice to scrutinise the statement of arrangements for children which had been submitted. The statement itself was non-binding as to what would happen after divorce, and disputes about contact or residence have therefore tended to be settled through separate legislation. Indeed, some 16 years after the Matrimonial Causes Act, we introduced the Children Act 1989, which has been a considerable success.

A number of noble Lords have said that we must have regard to the best interests of the children. That is precisely what the Children Act 1989 does. It is the cornerstone of legislation to protect children’s welfare. Orders under that Act are flexible and binding and can be applied for by either parent at any time, whether before, during or after divorce. Most importantly, the court can be asked to vary any such order in the future in response to changing circumstances. I notice that Part 2 of the Children Act 1989 provides the power for the court to make a range of orders to meet the welfare needs of a child, and Section 8 of the Act makes provision for child arrangements orders.

We have all the flexibility that we require. We have the means by which the court can have regard to the best interests of the children—whether arising before, during or after divorce—and there is no call to contaminate the divorce process with the interests of the children process, which is already addressed very fully and, as some noble Lords have observed, very effectively, by the legislation introduced by the noble and learned Lord, Lord Mackay of Clashfern, when he was Lord Chancellor. It is in these circumstances that I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 5:45 pm, 3rd March 2020

My Lords, I am most grateful to all noble Lords who have taken part in this debate, which has been extremely interesting and wide-ranging. Despite what has been said, the role of children and the effect on them of divorce proceedings would not have had anything like the prominence that it has had but for this amendment. I did not realise that the family test assessment is available; I was going to suggest having a meeting before Report with that as a central feature. Maybe noble Lords on all sides of the argument could come together. Clearly, we need to discuss all this on Report. All noble Lords who have taken part, with their very strong feelings and differing views, must be glad that children are a central part of all the proceedings. With that in mind, unless the Minister would like meetings for further discussion before Report, I will withdraw the amendment.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am perfectly happy to have meetings on this or any other issues that may arise before Report, and to have the relevant officials present. I hope I have expressed clearly our position regarding the distinction between the divorce process and the interests of children, but I am perfectly content to have a meeting.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.

Amendment 2 withdrawn.