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My right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) referred to freedom of choice, but is it right for the House to vote for something that we believe to be harmful to the institution of marriage, which is the very bedrock of our society?
For all the reasons I have outlined, I cannot recommend that the amendment be supported.
Amendment No. 119--
Mrs. Maddock:
Will the Minister state clearly how he sees his party voting on the issue? Will there be a free vote on amendment No. 119? There have been rumours that it will not be a free vote, but, if ever there was a matter of conscience, this is it.
Mr. Streeter:
Obviously, I am not coming across as I thought I was. I have already said that there is to be a free vote on the first amendment and now on this amendment. The hon. Lady should not listen to rumours.
I deal now with amendment No. 119, which concerns an amendment to the hardship bar. Under current legislation, and under the terms of clause 10 as drafted, the court, when considering an application for an order preventing divorce, can already take into account hardship other than purely financial hardship.
However, the amendment clarifies the fact that the definition of hardship in the Bill includes hardship attributable to the fact that a person has a deeply held religious belief that marriage is indissoluble. Bearing in mind the importance of this issue and the fact that it clearly raises issues of conscience, it is appropriate that the amendment is subject to a free vote. On this issue, the Government are neutral.
Personally, however, I should like to support the amendment, and shall do so. There are people with deeply held religious convictions who married in good faith, believing that
In my view, it is right that "hardship" should include hardship attributable to the fact that a person has a deeply held religious belief that marriage is indissoluble, and that such a person should be able to apply to the court under the hardship provision. It will then be for the court to decide. It will be a stiff test. Although this is a free vote, I shall be voting in the same Lobby as my hon. Friend the Member for Gainsborough and Horncastle.
Dame Jill Knight:
Bearing it in mind that we have a long way to go, and having listened to what has been said, particularly by my hon. Friend the Minister, who supported amendment No. 119, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Mr. Llwyd:
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Janet Fookes):
With this, it will be convenient to discuss the following: New clause 14--Provision for separate representation for children (No. 3)--
Amendment No. 106, in clause 24, page 16, line 8, leave out 'and' and insert--
Mr. Llwyd:
Madam Deputy Speaker--[Interruption.]
Madam Deputy Speaker:
Order. It is not fair to the hon. Member who has the Floor if there is a constant buzz of conversation.
Mr. Llwyd:
New clause 10 seeks to give the court the power to provide for the separate representation of children and their interests in circumstances when it would appear to the court, on the evidence before it, that the interests of a child may be in conflict with those of either or both parents--[Interruption.]
Madam Deputy Speaker:
Order. I am sorry to interrupt the hon. Member again, but it is clear that my earlier words were either not heard or not heeded. I should like silence, other than from the hon. Member who has the Floor.
Mr. Llwyd:
Thank you, Madam Deputy Speaker, I shall try again.
New clause 10 seeks to give the court the power to provide for the separate representation of children and their interests in circumstances when it would be appear to the court, on the evidence before it, that the interests of a child may be in conflict with those of either or both parents and that such a conflict presents a potential risk to the welfare of the child.
It is clear that in public law there are considerable benefits of separate representation. Under the Bill as drafted, clause 9 addresses the responsibility of the court to satisfy itself as to the arrangements for children under section 41 of the Matrimonial Causes Act 1973. The new clause would provide a bridge between the statement of arrangements for the children and the ability to appoint a guardian to represent their interests. It would cover many circumstances that are not at present covered by section 37 of the Children Act 1989, which allows for the appointment of a guardian only when the court is considering making a public law care or supervision order.
A considerable body of professional opinion--including judges, solicitors, family court welfare officers, guardians and child care social workers--fully supports the view that the lack of availability of a guardian ad litem in proceedings under section 8 of the Children Act 1989 represents a considerable void in the law relating to children who are involved in private law proceedings.
The Children Act advisory committee recommended the extension of the role of the guardian to cover proceedings under section 8 of the Children Act 1989. Indeed, judges have tried to appoint guardians when it is technically incorrect to do so, and many recent examples are available. There is also ample evidence that increasing numbers of children--particularly teenagers--need independent representation, although it is not appropriate to pursue the possibility of a care or supervision order for them. Many require help in protecting their financial, educational and emotional interests.
The new clause would facilitate agreements by diverting proceedings away from the court. It would give the court an independent view of the child's circumstances on which to base decisions about his or her welfare. It would extend the number of specified proceedings in which a guardian ad litem may be appointed, and it would provide a safety net for a relatively small but nevertheless important and vulnerable group of children.
The new clause would constitute a logical extension of the philosophy and principles laid down in the Children Act and would be entirely consistent with the requirements of article 12 of the United Nations convention on the rights of the child, to which the Government are a signatory. During the passage of the Children Act in January 1989, the Government gave a commitment that the review of the arrangements for separate representation of children would be part of the Lord Chancellor's rolling programme of reform of family jurisdiction. The Lord Chancellor gave an undertaking that the arrangements for panels of guardians ad litem and reporting officers would be reviewed in the light of experience, and the debate made it clear that it would be possible to review arrangements for the independent representation of children in all family proceedings.
Of course, my proposal would have a cost implication, but I am sure that it would be relatively modest and not too far reaching. It would introduce a vital provision for vulnerable children and young people who would not otherwise be properly represented, as it would give the court power to make such an order and it would provide for separate representation.
Although section 37 of the Children Act is a potential bridge between private and public law proceedings, it allows for the appointment of a guardian only if it appears to the court that it may be necessary for a care or supervision order to be made in respect of the child. Under the new clause, the court would have the power to do so without that proviso and it is entirely appropriate that it should be extended in that important way.
Experience since the implementation of the Children Act has shown that there are many circumstances in which courts have considered it necessary to appoint guardians in private law proceedings, but have found themselves hamstrung and unable to do so. Judges have gone as far as to try to appoint guardians when it was technically inappropriate.
"till death us do part"
meant precisely that. The amendment does not, however, create two tiers of marriage, which I believe risks undermining rather than strengthening marriage.
'.--(1) The court may, in the exercise of its powers under section (Welfare of Children), appoint a guardian ad litem for a child if--
(a) it appears to the court on the evidence before it, that it may be appropriate for an order to be made under section 8 of the Children Act 1989; or
(b) there are existing proceedings in any court in England and Wales under section 8 of the Children Act 1989 in relation to any child of the family in question.
(2) The guardian ad litem shall--
(a) be appointed in accordance with rules of court;
(b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules; and
(c) be appointed from a panel established under section 41(7) of the Children Act 1989.'.--[Mr. Llwyd.]
Brought up, and read the First time.
'.--(1) The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under--
(a) Part II;
(b) Part IV;
(c) the 1973 Act; or
(d) the Domestic Proceedings and Magistrates' Courts Act 1978.
(2) The regulations may provide for such representation only in specified circumstances.'.
'(6B) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider:
(a) the welfare, wishes and feelings of each child; and
(b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.
(6C) A contract entered into by the Board for the provision of mediation under this Part must also include.'.
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