Divorce, Dissolution and Separation Bill [HL]

Debate between Baroness Howe of Idlicote and Lord Mann

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Tuesday 17th March 2020 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, in Committee we had a useful debate on the impact of the Bill on children. The amendment I moved on that occasion required that the best interests of children should be considered in the divorce process. In his response, the Minister said, among other things:

“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.”—[Official Report, 3/3/20; col. 549.]


Taken as a whole, the Minister’s response made two main points. First, he claimed that while the decision to marry involved two people, the decision to divorce need involve only one person and is as such an “autonomous decision” that engages neither the spouse nor the children. This was not to say that the best interests of children were irrelevant but, rather, that they are engaged outside the legal process of divorce and protected through provisions such as those in the Children Acts. Secondly, he expressed the concern that the requirement to take into consideration the best interests of children could be used to prevent the divorce taking place if the divorce were deemed to be not in their best interests.

While it is not my intention to table any amendment that would prevent a couple who want to divorce from divorcing, I am deeply concerned about doing anything that authenticates an ethic of autonomous decision-making in family life. When two people marry and bring children into the world, they change the world through those children, who are very properly dependent on them throughout childhood. They use their autonomous choice to create a family unit of dependents and interdependence, in which anyone who is committed to the notion of responsibility must acknowledge that they say goodbye to autonomous decision-making, in the sense of decision-making based entirely on self, and engaging with the consequences for others only after the fact.

The thrust of government policy in seeking to fix “broken Britain” has been all along about helping fathers and mothers recognise that they must live up to their responsibilities, not escape them by falling into the ethic of autonomous decision-making. The hyper-individualism of the ethic of autonomous decision-making is the root cause of the broken Britain phenomenon, which the Conservative Party in opposition pledged itself to repair. In consequence, it makes no sense that, once in power, the Conservatives should instead give a shot in the arm to the hyper-individualism that they previously committed to curtail. In this context, rather than encouraging ethical autonomous decision-making, it is vital that divorce legislation in 2020, while not blocking the break-up of the family unit, should encourage adults with dependants to make decisions that are fully cognisant of the implications of those decisions on others, including their children.

This is absolutely relevant to the divorce process because it is one of decision-making. That is reflected in the three stages of the process as set out in the Government’s consultation paper, Reducing Family Conflict: the petition, the decree nisi and the decree absolute. The sense of the decision-making process negotiated through the first two stages is helpfully elucidated on page 32 of Reducing Family Conflict:

“Although it is the making of the petition that puts the marriage on notice, so to speak, it is only at the stage of the decree nisi that the marriage has, at least provisionally, been found by the court to have broken down irretrievably.”


The dictionary definition of putting in notice is,

“a formal announcement, notification, or warning, especially an announcement of one’s intention to withdraw from an agreement.”

The first part of the divorce process is therefore not set out in terms that suggest that the divorce is necessarily going to happen. We are looking at an indication of intention.

The provisional nature of that initial putting on notice period is further underlined by the designation of the 20-week period between initiating the petition and the application of the conditional order as the reflection period. It is during this reflection period that the Government have said on numerous occasions that they hope it might be possible to save a marriage. For example, in their response to the consultation process, the Government state on page 17:

“The law can, and should, have a role in providing couples with an opportunity to reflect on their momentous decision and pull back from the brink if they decide that reconciliation is achievable.”


In other words, at this stage we are not dealing with a process where decision-making is over.

In the context of the decision-making process facilitated within the legal process of divorce, it is very important that couples with children think about the impact that the divorce is likely, given the current social science research, to have on their children. In order to help them think this through, it is vital that they are empowered to make informed decisions through the provision by the Lord Chancellor of a

“concise, accessible statement of the main findings from the relevant social science discipline about the impact of divorce on different aspects of a child’s well-being.”

This is a modest but important amendment. It does not block divorce but simply seeks to empower a couple to make decisions about divorce that are informed by an awareness of the likely impact on their children.

I suggest that we cannot expend energy on seeking to block such a provision unless we want to risk being seen to prioritise the convenience of adults over the best interests of children in a way that I—and, I feel sure, many others—would find disturbing. I very much hope that the Government will accept this amendment. I beg to move.

[Lord Mann (Non-Afl)]

My Lords, I apologise for not having participated in this debate previously, but I trust it is in order to make a few remarks in relation to this amendment.

In 2002, when I was recently elected to the Commons, for whatever reason the Whips did not put me on a Select Committee—that is another story—so I created my own select committee in my constituency. I spent the best part of a year looking at heroin abuse in micro detail. The relevance and significance to this debate is in one of the extraordinary findings I made. There were around 600 heroin addicts living in the constituency. It was a fairly stable population and it was easy for me to gain access to them. I personally met, interviewed or researched—you could use all those terms accurately—around 300 of them, half the cohort, looking at what should be done to deal with their addiction but also at how they came to be addicted.

I came across the most extraordinary correlation. Of those 300, I found none—not a single one—who had not had major childhood trauma sometime in their teenage years. For some, it was reasonably well documented; it would be sexual or violent abuse in or outside the family that led them to heroin as their drug of choice. For others, though, it was a parental death or a messy separation. That correlation was absolutely uniform across the entire cohort; it varied between individuals, of course.

The conclusion I drew was that inability to cope with that major trauma led people into more dysfunctional behaviour and particularly into the choice of heroin as a comforting drug—the so-called cotton wool drug—which was the area I was building a particular expertise in. That has concentrated my mind and work for the nearly 20 years since, dealing with many such cases and the impact of separation on children.

I do not draw the same conclusions as the noble Baroness on how the law should be framed, because what I found in dealing with individuals in this situation was that the institution of marriage itself was not the problem or the issue; it was the circumstances in which they lived. Any kind of disputed, messy separation—whether a divorce or a less conventional way of living; I call it a quasi-separation—within an established family, or perhaps an established legal marriage that was itself dysfunctional and traumatic, could create the problem. In how we frame the law, the conclusion I drew at the time and put to your Lordships is therefore that a flexibility of approach that puts the children first is critical.

However, a structured approach in the law that overstructured the solution for the child would be counterproductive. The intent behind the noble Baroness’s amendment and the causation that she is putting forward are entirely endorsed, but I fear that the remedy is too constrictive in terms of the outcome for children and for how children will know that they are put first.