Divorce, Dissolution and Separation Bill [HL]

Baroness Meyer Excerpts

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

[Baroness Shackleton of Belgravia]

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.

[Baroness Meyer (Con)]

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.

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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.

[Baroness Meyer]

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.

[Baroness Benjamin (LD)]

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.

Divorce, Dissolution and Separation Bill [HL]

Baroness Meyer Excerpts

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

Moved by

[Baroness Meyer]

3: Clause 1, page 2, line 9, at end insert—
“(5A) For the purposes of subsection (5), “the start of proceedings” means—(a) in the case of an application that is to proceed as an application by both parties to the marriage, the date on which the application is lodged at the court under subsection (1), or(b) in the case of an application that is to proceed as an application by one party to the marriage only, the date when notice that the application for a divorce order has been lodged at the court has been served on the other party to the marriage.(5B) The court may abridge the 20 week period under subsection (5) if, on application, there is evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application under subsection (1).(5C) The extent of the abridgement is at the discretion of the court and the court must take into account the date when the proceedings would have started had there been no such evasion or other material attempts to delay service by the respondent.”

[Baroness Meyer (Con)]

My Lords, Amendment 3 is tabled in my name and that of the noble Lord, Lord Curry, who is following government advice by staying at home today.

The amendments in this group would tie the start of proceedings to service in the case of a sole petition divorce. Amendment 3 relates to marriages and Amendment 9A to civil partnerships. My noble friend Lord Farmer tabled a similar amendment in Committee. I am returning to the issue today because I believe the compromise offered by the Government does not go far enough. Proposed new Section 1(5) stipulates that 20 weeks must elapse between application and conditional order. This period gives couples a chance to reflect on the serious matter of divorce, plan for the future and consider whether their marriage can be saved.

As a nice aside, I must express my surprise at hearing several noble Lords imply in Committee that once the divorce process has started, there is no point attempting to save the marriage. I also gently remind the Minister that the government press release of 7 January said that the 20-week period is to

“provide a meaningful period of reflection and the chance to turn back”.

For the 20-week period to work, it is vital that both parties are aware that divorce proceedings have been initiated, but the wording of proposed new Section 1(5) leaves room for the respondent to be deliberately kept in the dark by the applicant. It ties the beginning of the 20-week notice period to “the start of proceedings”—that is, when notice is given to the court.

It is all too easy for a sole petitioner to avoid his or her obligation to give notice to the respondent by, for example, giving an out-of-date address or deliberately choosing a moment when the respondent is unreachable, maybe abroad. The question of whether the respondent is aware of the application becomes live only when the applicant asks the court to make the conditional order at the end of the 20 weeks. This means the respondent could be left unaware that the notice period has started, and the clock is running. They may not find out that the 20-week period has almost expired. That would surely defeat the entire purpose of the notice period: to encourage reflection. It could leave the respondent at a huge disadvantage.

It is more than possible that the applicant could start proceedings then leave the country with the children, in effect committing international parental child abduction. As noble Lords know, this subject is close to my heart. If the applicant flees to Germany, for example, it is possible to change the children’s place of residence in a matter of weeks, taking them out of the UK jurisdiction and into a foreign jurisdiction. Even if this does not happen, possession is nine-tenths of the law—as noble Lords are surely aware. Only 15% of abducted children are returned to their country of habitual residence under the terms of the Hague convention 1980. I raise this scenario because the Bill gives an unscrupulous applicant a great deal of power over the respondent. To summarise: on the eve of a conditional order, a respondent could find himself or herself confronted with a double fait accompli: divorce and the loss of the children.

The point was underlined last year by family law specialist David Hodson, in an article for a legal journal. He wrote:

“The intention of Parliament of divorce by notice over 26 weeks actually applies only to the applicant for the divorce. The recipient respondent will have less, perhaps much less and possibly even only a few weeks and yet have no opportunity to object. Any idea that there would be reflection and consideration—”

[Baroness Butler-Sloss]

I wonder whether the noble Baroness would allow me to make the point that in Amendment 3, proposed new subsection (5B) talks about

“evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application”.

Nothing in this amendment deals with the applicant misbehaving.

[Baroness Meyer]

Maybe it is a failing in the amendment. It could be detrimental to both sides, but I am coming on to the other side as well. Mr Hodson described the current wording of the Bill as

“discriminatory, arbitrary and unfair. A process in law which means some parties to proceedings will have a dramatically different notice period than other respondents.”

The simple solution to the problem is to make the start of proceedings in the case of single applicants for divorce the date on which the application is served on the other party, rather than the date it is made by the petitioner. This was recommended in the Law Society briefing paper, which states:

“It is proper that a respondent to a divorce is given the full 26-week period of notice … If the notice period runs from the start of proceedings rather than the date of service, the respondent may receive the notice long after the start of proceedings, whether due to court delays, interference from the petitioner in delaying receipt by the respondent, the simple length of time of delivery if abroad, or other administrative reasons …We would recommend the Bill is amended to ensure that the notice period in applications by one party to a marriage only, would start from when the notice was received by the other party to the marriage. We believe it is vital that both parties each have a minimum of 26 weeks for the divorce to proceed under.”


In Committee, the noble and learned Lord, Lord Keen, said that this would hand

“too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.”—[Official Report, 3/3/20; col. 582.]

He suggested that new rules and definitions of service should be explored by the Family Procedure Rule Committee, but there are two concerns about this approach. First, the principle is so important, and the potential for injustice so profound, that we cannot risk the Bill coming into force without this problem being solved first. To delegate this to the Family Procedure Rule Committee is to neglect the responsibility of this House to scrutinise and improve legislation. Secondly, on the point of a respondent who wishes to avoid or frustrate the divorce process, we accept the concerns of noble Lords. That is why these amendments give the court power to abridge and shorten the 20-week period if it arises that a respondent is attempting to frustrate the process.

I hope that, despite my bad reading, this demonstrates that concern about unco-operative respondents can be addressed, but we must also address the issue of unco-operative applicants. I beg to move.

[Baroness Butler-Sloss]

My Lords, before I speak to Amendments 3 and 9A, I should tell your Lordships—in the unusual circumstances—that I certainly have a cough. I have had it since before Christmas; I have been to see my general practitioner, who says that I have a virus, but it is not “the virus”. I hope that noble Lords can be assured that I am not going to spread the coronavirus. I saw my GP and a consultant last week and have been checked out. I am sorry about my cough, but I cannot get rid of it.

What the noble Baroness, Lady Meyer, has spoken about happens already, either by petitioners who give a false address or by respondents who make it impossible for the petition to continue. This goes on; I have heard from judges that they know it is going on. Sometimes divorces are completed without the respondent knowing. In other cases, there are divorces that cannot conclude because the respondent will not support it and just refuses to answer any questions or do anything that is relevant to the outcome of a divorce. I hope this is something that the Government will discuss with the President of the Family Division and the Family Procedure Rule Committee, because it is a serious matter. However, I do not think that it will be managed by this amendment.

I interrupted the noble Baroness, because I wanted her to realise that she has to deal with what is actually in the amendment: 26 weeks is not referred to in the amendment, and it deals only with respondents and not applicants. For all those reasons, I suggest to noble Lords that this amendment is flawed and cannot be supported.

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[Lord Keen of Elie]

No, my Lords, it would not be appropriate to put this in primary legislation. To assuage such concerns as there may be, I can say that the President of the Family Law Division has already had this matter raised with him and has expressed a view. We have committed to make sure that the matter is brought before the Family Procedure Rule Committee, which is the appropriate body to address this point.

[Baroness Meyer]

My Lords, I am grateful to the Minister for responding to these amendments. Of course, I am very disappointed. As he made clear in Committee, the Family Procedure Rule Committee can be invited only to consider the matter. It might decide not to act, or the matter may get lost in the myriad other changes following this Bill. I recognise that there is little appetite for a vote, so I beg leave to withdraw my amendment but very much hope that our colleagues in the other place will take a view on this before the Bill completes its passage through Parliament.

Amendment 3 withdrawn.

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[Baroness Butler-Sloss]

My Lords, I start by reassuring the noble Baroness, Lady Meyer, that if the President of the Family Division has said he will do something, he will do it.

Turning to these two amendments, I have the greatest possible sympathy with the proposals in each of them, but I do not think it appropriate that either should be in primary legislation. I would like to see, side by side with the application online, a requirement for the applicant to read advice about dealing with the issues raised by the noble Baroness, Lady Howe, and the noble and right reverend Lord, Lord Harries; and equally, if not more important, to read something about what the children say about divorce’s impact on them. About 20 years ago, Michigan had the most wonderful video of children ranging from about six to 18. They talked about the impact of divorce on them, such as: guilt—wondering whether it was their fault; anger at one parent or sometimes both; frustration because they did not know what was going on; and so on. Children need to be informed about what is happening; they have a right to know. They are people, not just packages.

It is extremely important that this sort of information, together with the information the noble Baroness and the right reverend Prelate have set out today, be provided, along with asking whether the parents realise that the children generally love both of them—it is very rare that they do not—and that the impact will include their feeling that they are responsible for what has happened, for example. I would like an undertaking from the Minister that this information, which has to be easily available, will be provided. A link is not good enough, because people do not have to look at it. It should be side by side with the application and should be provided to any applicant with children; however, it is not an appropriate provision for primary legislation.

[Baroness Meyer]

My Lords, I fully support what the noble and learned Baroness says. Before I speak in support of the amendment moved by the noble Baroness, Lady Howe, I shall make one thing clear: I have never said that I would be in favour of forcing people to stay together if they have decided that the best way forward is to separate and divorce. On the contrary, as I said in my previous speech, I fully support the new clause which allows for divorce by mutual decision through a joint application. The problem lies elsewhere: in what are, for the moment, called “contested cases”.