Divorce, Dissolution and Separation Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 3rd March 2020 Lords Chamber

Again, Answers to Written Questions suggest that no grants have been allocated for research into the causes of marriage breakdown or research into ways of preventing it. Given the huge cost of family breakdown and the fact that the Government have seen fit to introduce effectively the biggest change to divorce law in 50 years, it is regrettable that they did not inform their approach to divorce law reform with a better understanding of the causes of marital breakdown and ways of preventing it. I end by suggesting that support for marriage should somehow be provided through a programme to help parents, regardless of whether they are married.

[Baroness Tyler of Enfield (LD)]

My Lords, I support Amendment 21, which aims to put relationship support funding on a firmer basis. At the outset I should declare an interest as a former chief executive and current vice-president of the relationship counselling charity Relate, and I am also a former chair of Cafcass.

Many of the reforms contained in the Bill are certainly to be welcomed, but—this is a real gap—the Bill is silent on the provision of relationship support, which in my view needs to be available much earlier in the process of relationship breakdown, as well as at the later stages, which we are very much focusing on today. As the noble and learned Lord, Lord Mackay, has already said, funding for relationship support services was identified as a necessary part of divorce reform during the passage of the Family Law Bill, and I agree with him that it remains just as necessary today. In fact, I should like, very briefly, to take us back to the Denning report of 1947. As Lord Denning said, there should be a marriage welfare service “sponsored by the State but not a State institution”. It should be a function of the state to support marriage guidance as a form of social service. I underline the words “as a form of social service” because they are germane to my argument.

Over the years, successive Governments have taken their responsibilities in this area seriously—to a greater or lesser extent, I contend—to ensure the availability of relationship support services for those who want and need them. It has been my personal experience that some Ministers and, indeed, some Prime Ministers have shown a much greater interest in this area than others: some have really wanted to champion the need for proper relationship support services, while others have taken much less interest. I think that it is genuinely a real problem that proper funding for relationship support—which I see as a core responsibility of government in providing necessary social services—has sometimes felt over the years as if it has come down to the whim of a particular Minister or Prime Minister.

Over the years, responsibility for funding relationship support services has moved between a large number of departments—frankly, having been quite involved in some of those moves, I feel that I could write a book on it. It currently rests with the DWP. Funding over that time has steadily been eroded and now focuses—very narrowly, I think—on interventions to do with workless households and helping to give support where there are high levels of parental conflict. I am not saying that there is anything wrong with focusing on high levels of parental conflict or workless households, but there is a much broader need to support relationships across the rest of the general population. This particularly helps families and children to thrive, which we discussed very eloquently in last Thursday’s debate.

I also feel that having properly functioning families with good relationships within them and trying to minimise relationship and family breakdown whenever we can is so fundamental to so many of the Government’s broader social policy objectives, be they in education, health or employment. It really deserves to be taken a lot more seriously than it sometimes feels that it is. It is clear that early intervention to support relationships—again, the subject of our debate last week—increases the chances for relationship difficulties at the early stages to be repaired. We therefore need to make sure that those chances to seek support are provided when a relationship begins to deteriorate, as well as in the period after an application for divorce is made, when the focus is likely to be on helping the couples to reduce conflict and on ways in which they can continue to successfully co-parent but live apart. Those things can have long-lasting benefits for children, particularly for their emotional well-being.

As has already been said by the noble Lord, Lord Farmer, relationship support must be accessible, affordable and available when it is needed to help families seeking to repair or manage relationship difficulties. This is a really key point for me: relationship counselling must not just be seen as a middle-class preserve. It has to be available and affordable for all, irrespective of income or ability to pay. As far as I am concerned, I have always seen the availability of relationship support services as a social justice issue.

Government funding for relationship support services must be recognised as an essential component of the Government’s new approach to divorce and separation if the aims of this Bill are to be fully recognised. The Government really must take core responsibility for ensuring that there is good relationship support available and not just see it as a fluffy little discretionary add-on.

[The Lord Bishop of Salisbury]

My Lords, I rise in support of Amendments 3 and 21 and to provide a brace of bishops. I want to observe the seriousness and the quality of this debate as we as a House navigate the support of marriage as an institution and of couples in keeping their vows while recognising that marriages break down and trying to provide adequately for those circumstances. If the noble Baroness, Lady Tyler, is right that support for the relationship support services sometimes depends on the whim of a Minister or Prime Minister, one might hope that the present occupant of 10 Downing Street would take a particular interest in these matters.

On average, the Church of England conducts about 1,000 weddings a week. We have experience of conducting, preparing people for and supporting them in marriages. Quite often, couples that I have prepared say that they want to get married in church because they know that they are standing and making their vows in a solemn and serious place that has significance in the community and before God. They want the support of the community gathered around them. In the modern marriage service, we say, “Will you support them in what they are doing?” The congregation comes back with, “We will”. The role of gathering around a couple to support them in keeping what we know to be quite difficult things to keep is a very significant part of the service. Marriage is a gift of God in creation. A marriage in civil ceremony is, therefore, as big a deal. That means that we need to gather around these couples too and support them in upholding their vows.

However, marriages break down. That is costly in the way that the noble Lord, Lord Browne, itemised; there is a financial cost to society. It is also emotionally costly to the individuals in the couples. This is not done lightly: there is a real cost to this, as well as a financial cost to the family concerned. It needs good support to wrap around it. Tolstoy observed that all happy families are alike; each unhappy family is unhappy in is own way. That is a good reason for saying that the support of marriages is complex and that we need to put in relationship counselling provision early on to support that.

Both amendments seem valuable to me for the support that they give individuals but also because they make a point in a Bill that, as my right reverend friend the Bishop of Portsmouth observed at Second Reading, might better be focused on kinder divorce rather than easier divorce. Through these amendments, we would be making a statement about the seriousness and importance of marriage, and the support that needs to be wrapped around it, both at an earlier stage and, by noting the availability of resources, at this last stage before the matter is finalised.

Queen’s Speech

Baroness Tyler of Enfield Excerpts

Wednesday 8th January 2020 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, it is a pleasure to speak today with so many other noble Lords who are distinguished constitutional experts and, indeed, to hear two such excellent maiden speeches. I generally speak on health, social mobility and wider social issues, but today I wish to make some remarks on constitutional matters with a particular focus on Civil Service reform, which has been hitting the headlines in somewhat lurid terms in recent days, drawing on my near 20 years’ experience as a civil servant and my six years’ experience as chair of a public body.

Some may consider constitutional matters rather dry and technical—dare I say, geeky. I have never seen them in that light. I consider our constitutional settlement, unwritten as it is, as the very cornerstone of our parliamentary democracy. The checks and balances that it contains are essential to ensuring that the Government of the day, whatever their colour, are held to account by a sovereign Parliament. It is what a liberal democracy—something we should all cherish—is all about.

Frankly, I have been troubled by some of the press accounts concerning the proposals for constitutional change coming out of the Conservative Party manifesto that I have been reading. Do not get me wrong: in principle I welcome the constitution, democracy and human rights commission announced in the gracious Speech to look at the broader aspects of the constitution, particularly the relationship between government, Parliament and the judiciary; the very foundation stone of those checks and balances. We move away from that delicate balance at our peril.

Like my noble friend Lord Wallace, I am very apprehensive about any agenda designed to increase the powers of the Executive and to reduce the powers of Parliament to hold them to account and of the courts to conduct judicial reviews. It may be a pesky irritant to a Government with a large majority—in terms of seats, that is, rather than of vote share, given our absurdly unfair voting system, a point made very eloquently by many noble Lords today—but history tells us that shackling the powers of Parliament to create an overmighty Executive is a very dangerous path. I would like to see the powers of Select Committees reviewed and enhanced, not least so that it would be unconstitutional for a Minister, or indeed the Prime Minister, to refuse to appear before a relevant Select Committee when requested to do so. We should also remember that Permanent Secretaries are directly accountable to Parliament as accounting officers, which is one reason why any proposals to get rid of them would be so undesirable.

Civil Service reform is often seen as a niche issue, but enter Mr Dominic Cummings, the great disrupter, whose radical ideas for transforming the way government and the Civil Service operate have caught the headlines, not least his wish to see “weirdos and misfits” whom he clearly prefers to what he terms “confident public school bluffers” and “Oxbridge humanities graduates”. His preferred HR practices are pretty unconventional too, particularly his suggestion that those “wild cards” who feel that they meet his rather unusual person specification bypass formal recruitment processes and get in touch with him direct via email. Other plans are reported to include an overhaul and merger of government departments alongside radical reform of how civil servants are recruited, assessed and rewarded, including them taking regular exams to prove they are up to the job.

In fairness, he does acknowledge that

“there are many brilliant people in the Civil Service,”

but Mr Cummings clearly has a very dim view of the system as a whole. Intriguingly, back in 2014 he argued:

“The idea of a Cabinet of over 30 people is a farce; it should be a maximum of probably six or seven people.”


Well, I am looking forward to that one.

In response to this, some former Permanent Secretaries and others have rightly pointed out that it is far better to take people with you when advocating major change than destabilising simply for the sake of it. It is also worth reminding ourselves that the historic values established by Northcote and Trevelyan in 1854—political impartiality, recruitment on merit, integrity and objectivity —remain as relevant today as ever.

Others have also been putting forward interesting ideas, including Policy Exchange, a right-wing think tank, which has just published a document called Whitehall Reimagined - A Strengthened Civil Service for a post-Brexit World. I agree with some of its recommendations, but certainly not all of them. Its report also rightly points out that recruitment freezes, below-inflation pay rises and major cuts to budgets have put the system under severe strain in the past 10 years, but I strongly take issue with the partisan proposals for public appointments which fail to recognise the need for appointments which can serve successive Governments.

Civil Service reform is important. From my experience, I have three key conclusions, with which I shall finish. First, civil servants move around far too often, leading to a real loss of expertise and corporate memory. Secondly, ministerial churn is arguably a substantially greater problem. During my six years as chair of Cafcass, I interacted with some 15 Ministers in the sponsor departments, many of whom did not stay in post for longer than a year, or for even less, including at Secretary of State level. No wonder there has been such little progress on family justice reform with that neverending merry-go-round.

Finally, machinery of government changes are a phenomenal waste of time and money and a total distraction from policy delivery. When she responds, will the Minister outline the intended timescale and process for the Civil Service reforms we have been reading about so recently, including the consultative arrangements, as I have a number of specific ideas I would like to feed in?

European Union (Withdrawal) Bill

Baroness Tyler of Enfield Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

Would the Minister be prepared to see me along with a number of others, particularly the Family Law Bar Association, the international family law association and Resolution, the organisation for solicitors in family law, so that we could go through with him how we ought to take the Bill forward? Currently, the way civil law is being looked at just for replicating it is utterly inadequate. It would be profoundly unjust to British people to let it stay like that.

[Baroness Tyler of Enfield (LD)]

My Lords, I support Amendment 29 and will speak briefly to Amendment 336, to which my name is attached. I remind the House of my declared interest as chair of the Children and Family Court Advisory and Support Service. I wish to dwell on that experience in my remarks today, by thinking in this debate about the impact on the child and whether or not they feel that their voice is heard.

It is for this reason that I feel it is vital that the Government take all possible steps to achieve an outcome which retains full reciprocal arrangements between the UK and member states in the field of family law. It is so vital that families needing to go to court must know that whatever court they end up in, and in whatever country, its decision will be respected by other courts. We have heard a lot from distinguished lawyers about the current reciprocal arrangements, which have been built up and evolved over decades. They have provided real benefits to families across the UK. These harmonised rules across the EU for establishing jurisdictions to hear cases, to recognise and enforce each other’s orders, and to co-operate across borders have made a real difference to families caught up in these difficult situations.

Replicating provisions in our own domestic law without full reciprocity would leave our citizens in a position of real vulnerability and confusion. It would lead to very unfair outcomes for British citizens, a point which has already been made. As the noble Baroness, Lady Sherlock, said so persuasively, the EU instruments which affect UK family law deal primarily with procedural, not substantive, family law. Sovereignty is not the issue here and I really hope that in this debate, as we look at what happens to family law in the context of Brexit, we will not get caught up on the high altar of sovereignty. This is about what happens to very vulnerable and distressed children and families.

I turn briefly to Amendment 336, to which my name is attached. The reason I wanted to attach my name is that the first regulation cited in this amendment—I will not go into the technical detail—is one that we at CAFCASS use a lot in both private and public law, since the fundamental principle is to ensure the reciprocal recognition of court orders between the EU states. It saves re-litigating and protects children who move between states, whether they are living there temporarily or permanently. It also requires states to co-operate with each other in providing information in public and private law, and to assist in placing children in public law cases in other member states; this is practical but really critical. The absolutely key point is that these arrangements help to alleviate the inevitable distress and disruption for the children and families involved.

Our key role at CAFCASS is to ensure that the voice of the child is heard in family courts, whether in public law, which is usually where local authorities are making an application for a child to be removed from a parent and taken into care, or in private law, which is usually where parents are separating with such high levels of conflict that the court is involved in deciding child arrangements such as residence and contact. At the moment, my strong sense is that the critical voice of the child is absent from discussions about what happens to family law post Brexit. This will be much to the detriment of children and young people involved in family proceedings, who are often extremely vulnerable and going through a very difficult period in their lives. This can lead in turn to real emotional distress and trauma, and have an adverse effect on mental health and well-being.

Many of these children will have had what is called in the research “adverse childhood experiences” first-hand, including abuse, domestic violence and bereavement. That is why what we do to our family law as we look at the Bill is so important. We need to make sure that it is as child-friendly as possible, rather than something that is done to children and over which they feel they have no control.

[Baroness Massey of Darwen (Lab)]

My Lords, I rise to support my noble friend Lady Sherlock in this group of amendments. I appreciate the wisdom of noble Lords who have spoken.

I will add a few comments, mainly on children’s rights and child protection, which have been spoken about by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Tyler. I should declare an interest as the chair of the sub-committee on children in the Council of Europe. The EU does not have legal power to change domestic family law, but in procedural rules it ensures that family-related decisions made in the UK can be recognised and enforced in other countries in the EU. Most children live in families, and therefore family law will often have an impact on children. The current rules ensure a level of certainty for families, and therefore children, who move about the countries of the EU. The rules prevent parents avoiding their obligations by moving around. This is because EU law has uniform rules across member states for family law proceedings, including those involving children. EU law ensures that public law decisions to protect children can be enforced in countries of which the child is a non-national. Such law emphasises the best interests of children, as enshrined in the UN Convention on the Rights of the Child—which I am sure will come up over and over again in the discussion on children—where the welfare of the child is deemed paramount and a child who has the capacity must be given the opportunity to be heard, including in family disputes. The EU maintenance regulation provides for child maintenance to be automatically applicable in any other member state to which either of the parents and/or the child move.

My noble friend and others mentioned the Hague conventions. Other options to ensure family welfare, such as creating bilateral agreements, would take more time to implement and children and families would suffer. The six-week deadline for the resolution of child abduction cases should be retained. Membership of the EU judicial network to facilitate information sharing between courts dealing with family issues should continue. One example of the protection of children is related to the EU directive of the European Council establishing minimum standards for legislative and practical measures to support victims of crime. This includes the specific needs of children and the need to pay attention to services and support in, for example, gender-based or domestic violence. The directive includes special reference to the need to ensure that children’s best interests are the primary consideration and to ensure a child-friendly approach.

I am impressed by and grateful for the report by the EU Committee chaired by my noble friend Lady Kennedy of The Shaws, Brexit: Justice for Families, Individuals and Businesses. It addresses the 1996 Hague convention in respect of parental responsibility and measures for the protection of children. The maintenance regulation is designed to ensure that rules on jurisdiction and the enforcement of decisions relating to maintenance obligations are continued and provides that obligations should be determined in accordance with the Hague protocol. The report comments on the Brussels IIa regulation in relation to divorce, legal separation and the annulment of marriage. It carries specific rules on child abduction and access rights. I will not go into this in detail but will just say that witnesses to the inquiry on which the report is based commented favourably on Brussels IIa. Sir Mathew Thorpe stated that it is a,

“laudable ambition to achieve better justice for European citizens where issues cross the border of member states”,

and viewed the regulation as “broadly successful”. David Williams QC stated that Brussels IIa had spread into every area of our domestic law.

European Union (Withdrawal) Bill

Baroness Tyler of Enfield Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I rise to speak to speak to Amendments 68, 97 and 158, all of which would ensure that following our departure from the EU, children’s rights will continue to be given due regard. The Government have claimed that the Bill will ensure continuity—in fact, a number of noble Lords think that is correct—and that there will be no legislative cliff-edge if or when we leave the EU.

However, whether by accident or by design, there is a gaping children’s rights hole in the Bill. These amendments would not introduce any new policy or extend provision; rather, they require only that where EU legislation has been developed in line with the principles of the UNCRC, new UK law or amendments to retained EU law will also pay due regard to the UNCRC. The Government have argued in previous debates that children’s rights are fully protected in UK law. I will clarify that this is not actually so and I want to pay tribute to the Children’s Society and a number of academics who have enabled me to do this. The Government argue that, for example, the Human Rights Act 1998 incorporates the ECHR into UK law and does the job of protecting children’s rights. However, that ignores the fact that the ECHR is confined principally to civil and political rights, while remaining relatively silent on a range of social and economic rights that form the substance of EU law. There are further problems in relation to the process of bringing a claim for an alleged breach of ECHR rights.

The Children Act 1989 provides important protections for children in both public and private proceedings, but it does not regulate the full range of children’s rights that are covered by EU law such as consumer protection, health and safety, and non-discrimination; other speakers have mentioned one or two of these. It also does not cover the cross- border recognition and enforcement of family orders which are currently regulated by Brussels I and II. Furthermore, the Children Act 1989 is often interpreted narrowly, to the detriment of the fuller range of rights set out in the UNCRC. A crucial example, as the noble Baroness, Lady Massey, said, is the right of a child to be heard following abduction before a return order is made. The crucial question is, does the child wish to be returned? It is pretty desperate if they do not, and they will not be able to make their wishes known, as I understand it, even if they are of an age and maturity to make that appropriate. The Children Act 2004 places obligations on local authorities but does not extend those to immigration authorities or commercial or private entities to whom public authorities have contracted out aspects of their children’s services. These days, of course, much of that work is contracted out.

The Equality Act 2010 provides a number of protections for children and young people. However, it does not cover many of the issues that are a real worry for children, post Brexit. For example, it does not promote the need for public agencies to act in the best interests of the child as a top priority in the way the UNCRC does, which the EU implements. The Immigration Act 2016 proposes to withdraw leaving care support from unaccompanied young people at age 18, as has been mentioned, if they do not have leave to remain or are not asylum seekers. A lot of these kids probably do not have the knowledge and information they need to be in a position to claim those rights. There is therefore a human rights issue here, for which there is no provision in UK law. The Modern Slavery Act 2015 provides good protection for young people. However, the removal of Section 32 of the EU charter following Brexit will weaken protection against child labour. It will leave weak obligations on business in this area. Also, the EU trafficking directive includes requirements to have regard to the children’s best interests and to consider the long-term outcomes for children. These are absent from the Modern Slavery Act, wonderful though that Act is.

At an EU level, the rights of the child are currently guaranteed by Article 24 of the charter and are one of the fundamental rights mentioned explicitly in the commission’s strategy. They are thus included in the regular fundamental rights check, which the commission applies to relevant draft EU legislation. These safeguards will not apply to new UK laws or amendments to retained EU law. If, or when, we leave the European Union, we will thus need to correct the statute book and legislate for the future in areas of previous EU competency, such as matters relating to justice, specific areas of social policy, consumer protection and research and development. Across the UK, the range of issues where children could be exposed also covers data protection, paediatric medicine clinical trials, food labelling, television advertising, the rights of migrant children to access education and healthcare and, importantly, cross-border family law, as others have mentioned.

In conclusion, I do not believe that these gaps in UK law are the Government’s intention, but an oversight that can and should be corrected between Committee and Report. Does the Minister agree that if this Bill is about providing “certainty and continuity” for people—as the noble Baroness, Lady Evans of Bowes Park, said at Second Reading—it is only right that the Government provide certainty and continuity for children also? I would be grateful for an assurance from the Minister that he will take these matters back to the department for consideration before Report. Also, it would be helpful if children’s rights could be included on an agenda for a briefing session on the Bill with Ministers in the next few weeks.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to lend my support to this group of amendments on children’s rights and to briefly say one or two words on Amendments 37 and 69, to which my name is attached. Like the noble Baroness, Lady Massey, I want to talk about this group because my fundamental feeling is that the voices of children and young people are simply not being heard in the Brexit process. Frankly, that is ironic when we consider that they are the population group who will be most affected by this—and for the longest time.

The Government’s plan not to retain the European Charter of Fundamental Rights through the EU withdrawal Bill is a real concern to me, particularly in relation to children. As we have heard, the charter enhances rights for children that already exist in the European Convention on Human Rights, such as the right to education. It also includes key rights enshrined in the UN Convention on the Rights of the Child, such as the rights to care and protection, to express views freely in accordance with their age and maturity—the principle of best interests being a primary consideration—and the right to know both parents. I know that others have said this, but I make the point that these are not small, trifling matters or marginal extras; they are fundamental things we should be very concerned about.

The charter contains certain provisions of great importance to children and young people that are not protected in domestic law at constitutional level. Children’s rights enshrined in the charter have been translated into practice through EU legislation, policy and case law. This includes legislation on child-friendly justice systems, and the charter has strongly influenced the development of EU regulations relating to cross-border family law. We heard an awful lot about this earlier in our debate on family law and I certainly do not intend to repeat that because we heard it in great detail. I simply make one point, which was my key point in that debate. It is crucial that children, including children born to families where one parent is from the UK and the other is from an EU member state, feel that their voice is heard in this process and that their wishes and feelings can be expressed, so that they feel that a fair decision is being made about what happens to them regarding these crucial decisions in their lives, particularly if they are to be returned to a parent in another country.

Finally, the noble Earl, Lord Listowel, is not in his place to talk in more detail about Amendment 69, to which I added my name because I felt it very important that a government body or right in statute exist somewhere to ensure that children’s physical and psychological needs are being met and considered, particularly when they are a victim of any form of neglect, exploitation or abuse. As many in the Chamber will know, no group of children has suffered more neglect, exploitation and abuse than children in care. That is why this amendment, which I know was tabled as a probing amendment, is so important.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I have one brief question that I would like the Minister to answer. Most of the debate has been about children, apart from the contribution of the noble Baroness, Lady Greengross. I will talk about the elderly. I need to declare an interest—although we would all need to declare that interest. I am chair of Age Scotland. Like the noble Earl, Lord Dundee, as he mentioned, my noble friend Lady Massey who moved the amendment, the noble Lord, Lord Russell, who will speak, and the noble Lord, Lord Balfe, who is in his place, I am a member of the Parliamentary Assembly of the Council of Europe. How will Council of Europe recommendations be incorporated into United Kingdom law if we leave the European Union? I ask this because an excellent report has been approved by the Parliamentary Assembly of the Council of Europe entitled Human Rights of Older Persons, and their Comprehensive Care.