Divorce, Dissolution and Separation Bill [HL]

Lord Browne of Belmont Excerpts

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

[Baroness Burt of Solihull]

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.

[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.”

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[Lord Mackay of Clashfern]

My Lords, I support both amendments. I want to look at Amendment 21 first; it contains a reference to Section 22 of the Family Law Act 1996 and one of the provisions supported by Professor Walker in the passage that my noble friend quoted. I regard it as absolutely essential that the Government should support families in difficulties. There are plenty of reasons for difficulty in family relationships, perhaps more than there were. But in any case, whether that is so or not, there are still difficulties, and help in overcoming these is essential as early as possible. Amendment 21 deals with Section 22 and the need for counselling in relation to the later stage.

I also support the provisions in Amendment 3, which are a last resort. It is so important that people really consider what is happening and get what help they can before it happens. The idea that it is always too late is not quite right. Sometimes reconciliation can come quite late—and better late than never—which is what Amendment 3 supports. The noble and right reverend Lord, Lord Harries of Pentregarth, was Bishop of Oxford when the 1996 Act was considered and ultimately passed. I think it was he who put this amendment in form first. The Government fully supported it, as I do now. I also support its continuation, which is in the amendment.

There are some quite interesting amendments. Section 22 of the Act says:

“The Lord Chancellor may, with the approval of the Treasury”.


I am not sure why I had to put that text in the Bill, but it must have been part of the price I paid for getting that section into it, which remains law. The amount provided for it now has fallen. I would like to press on Her Majesty’s Government that one of the most important things for the present is that our family life is preserved and strengthened. I am sure that, as was said on earlier amendments, a good deal of difficulty has arisen from the failure to support family life in the way that the Government should. Therefore, I am very much in favour of Amendments 3 and 21.

[Lord Browne of Belmont]

My Lords, I am pleased to support Amendment 21 in the name of the noble Lord, Lord Farmer, which focuses on marriage support services. It requires the Secretary of State to make grants for marriage support services

“before and during a marriage.”

The public policy benefits of marriage are such that this is a very appropriate use of public funds. Indeed, in terms of the public finances, investment in relationships is good value for money. The estimated cost of family breakdown to the public purse is £51 billion a year. In January 2018, the Government said in another place that between April 2015 and March 2017 they had invested £17.5 million in relationship support services. That is a very small sum, given the scale of the costs of family breakdown. It is estimated that Relate’s couple counselling work delivers £11.40 of benefits for every £1 spent. Surely this should make the Chancellor consider upping the Government’s investment in supporting married couples and those in civil partnerships.

Divorce, Dissolution and Separation Bill [HL]

Lord Browne of Belmont Excerpts

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

[The Lord Bishop of Carlisle]

My Lords, much of what I might wish to say about Amendments 5 and 13 has already been mentioned, so I will not repeat it. However, from these Benches I would like to express my warm support for the main thrust of both amendments and briefly reiterate three points.

First, in both amendments, those applying for a divorce are not compelled to do anything, but they are presented with information that might make a difference not only to what they do but to the way in which they do it.

Secondly, with regard to Amendment 5, almost everyone is agreed that the divorce of a child’s parents is one of the so-called ACEs, or adverse childhood experiences—we have just heard about one of those—that can significantly affect the subsequent flourishing of the child. It seems to make every sense to bring that to the attention of the parents, as well as the fact that children apparently often tend to do better even with fractious parents than they do after a divorce, although I fully acknowledge that cases of domestic abuse are a different matter.

Thirdly, as for being given access to information about mediation and marriage counselling, as we have been reminded, it might seem a little late in the day for that, and I noted the earlier comments of other noble Lords. However, as I understand them, the statistics suggest that as many as 2,500 relationships are currently rescued each year as a direct result of this sort of intervention. That is obviously important not only for the couples but for any children involved. Several noble Lords have already emphasised that point.

Both these amendments seem to be simply a matter of common sense and care for everyone who is caught up in the trauma of a divorce. They would enhance, rather than destroy, the Bill, and I very much hope that the Minister will regard them with the favour that they clearly deserve.

[Lord Browne of Belmont (DUP)]

My Lords, the social science evidence is very clear that divorce has a negative—sometimes profoundly negative—impact on child development. Of course, there are occasions when divorce is absolutely in the best interests of children: when they need to be liberated from an abusive environment. In developing public policy, however, we must be careful that situations where divorce is the best outcome do not cause us to lose sight of the fact that, in most cases, it is best for children to remain living in an intact family home.

Under the current law, if someone is unfaithful to their spouse, they know that they will be at risk of receiving divorce papers. There is a sense in which the law is there to protect the faithful spouse from being abused by an unfaithful spouse. The new framework, however, seems to turn things on its head. A feckless husband and father, rather than being challenged by the law in his selfishness, is actually empowered by it, and in a way that enables him to demonstrate a cruel lack of regard for his spouse and children. He can have an affair and use the law to help him fulfil his objective of liberating himself from the family unit that constrains him, in order to pursue others. The law allows him to issue a statement of irretrievable breakdown with the option of being out of the marriage in six months.

What does this Bill do for the faithful spouse, the respondent, and, more importantly, their children? It means that people who have committed no fault, but who are being divorced, will lose the warning that they currently benefit from through the requirement for prior separation in the absence of fault. They will instead receive, out of the blue, a statement of irretrievable breakdown, a breakdown that is in no sense their fault, and find that marriage will end in six months, or significantly less if the petitioner sabotages the 20-week reflection period by not telling her that a petition has been lodged until part way through or at the end of the period.

The lack of actual regard for the respondent and children in the proposed law is concerning. I know that in 2011, when David Cameron, as Prime Minister, called for feckless runaway fathers to be shamed, he was not necessarily saying that couples should not divorce. His point was that fathers should take their responsibilities seriously. As well as challenging fathers not thoughtlessly and selfishly to walk out of marriages, he was challenging fathers not to turn their backs on their responsibilities after divorce. Notwithstanding that, however, it is very difficult to square the way that this legislation empowers a feckless father to walk out of his marriage on the basis that his decision is an autonomous one, without regard for the best interests of the children until after the decision to divorce has been made. In this context, at the very least we must think more about asking parents to process the divorce decision in the context of an awareness of what the social science evidence says about the best interests of their children.

In this regard, I set before your Lordships’ House two considerations. In the first instance, a divorce decision is not an autonomous decision, because it impacts both the spouse and the children. We should be encouraging not an autonomous decision but a responsible decision, one that has regard for the impact on others, especially the children.

In the second instance, the decision to divorce is located, to some significant degree, in the legal process of divorce, and is not a foregone conclusion from the outset. As the Government’s consultation, Reducing Family Conflict, makes plain on page 31, initiating the petition amounts to something that

“puts the marriage on notice”.

The application for the conditional order for the divorce is not actually made until after the 20-week period. This is called a reflection period, for the very good reason that it is a time for reflection, to aid the decision-making process in the context of which The Family Impact Test says:

“The legal process for divorce should seek to reduce acrimony and conflict, thereby helping couples and parents to look to the future rather than providing a mechanism that facilitates and encourages the attribution of blame for past events. We want to create conditions for couples and parents to reconcile if they can – and to move on as constructively as possible in the event that this is not possible.”


In other words, the Government are saying that the decision-making process is still taking place in the legal process of divorce during the reflection period. In this context, it seems absolutely right that, rather than encouraging people to make autonomous decisions about divorce in the legal process of divorce, we should be encouraging them to make responsible decisions about divorce—decisions that do not think just about themselves but about their children.

I believe that this amendment is eminently sensible. It does not block couples seeking divorce; it entitles couples to receive information. Quite what couples decide to do with the information is up to them. Perhaps it will make them resolve to work harder at their marriage and step back from divorce. Perhaps it will not change their decision at all, but it will impact the way in which they approach it and make them more alive to the need to provide special support for their children going forward.

The state, having played a role in recognising the marriage commitment through the law and conscious of the significant public policy benefits of marriage, has a responsibility, particularly to the children of the marriage, to make sure that it cannot be exited without reflection on the implications of doing so in the best interests of the children. I am therefore pleased to support the Amendment 5.

[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.

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“drawing from multiple peer reviewed academic sources comparing the scope for reconciliation under a fault-based divorce system with a no-fault based divorce system”.

[Lord Browne of Belmont]

My Lords, I rise to speak to Amendment 15 in the name of the noble Baroness, Lady Howe. As I noted in my speech in Committee, in all our debates on the Bill we must not forget children. The Family Impact Test assessment affirms the Bill on the basis that it seeks to “reduce conflict”. However, while I fully understand the Government’s desire to reduce conflict in the divorce process, it is telling that the majority of couples who divorce are in low-conflict relationships.

The figure mentioned by the noble Baroness, Lady Howe, is that 60% of couples that split are in low-conflict relationships. This research comes from Professor Spencer James of Brigham Young University. He states that these low-conflict couples are

“largely indistinguishable before they split from couples that remain together”.

These findings challenge the assumption that the majority of couples that split up are in constant conflict with one another, yet that assumption seems to underpin this legislation. James’s research comes from the UK’s largest household panel survey, Understanding Society. He found that only 9% of married couples in the United Kingdom who split could be described as high-conflict couples. He states:

“Both unhappiness and conflict are far less prevalent among couples who are about to split than one might reasonably expect.”


All of this is important when we return to research on the impact on children of family breakdown. Parents are more likely fall into poverty following separation. Therefore, they need much greater levels of state support. Some 60% of lone parents receive housing benefit, compared to just 10% of couple parents. Even when income and education are taken into account, studies find negative effects on children from divorce. One study, from Lee and McLanahan, looking at 2,952 mothers and children, revealed that instability especially affects children’s socioemotional development.

Yet the impact of divorce on children seems to depend on what came before. Children tend to do better if their parents exit a high-conflict relationship and worse if they exit a low-conflict one. As James notes in the research I mentioned earlier:

“This potentially counterintuitive finding in fact makes great sense. The break-up of a low conflict relationship comes largely out of the blue for the children. They are then left to conclude either that relationships are profoundly unpredictable or that they are somehow responsible. It’s easy to see how either of these conclusions can then undermine and sabotage their own future prospects of a loving committed relationship”.


This amendment would require the Government simply to look further into the impact of no or low-conflict divorce on children. It is a significant failing that the Family Impact Test assessment has not engaged with this. I think there will be a good deal of benefit in gaining greater understanding of why these couples divorce and therefore in investing more effort in helping them. If these married couples are saying they are relatively happy one year before divorce, what pushes them to make that decision? Understanding that would enable targeted support and help.

The research I have talked about should give us hope. If 60% of couples of are low-conflict and many of them are happy one year before they divorce, perhaps those marriages could be saved. Divorce is generally not in the best interests of the children of those families, so keeping them together would be a great benefit to them. I support Amendment 15.

[Lord Morrow]

My Lords, I wish to speak in support of Amendment 17, which was tabled by the noble Lord, Lord McColl. I am aware that he does not intend to test the opinion of the House on it, but nevertheless I think there are some things that merit being said.

The noble Lord noted in Committee that there are no less than 27 references to reconciliation in the Government’s comments setting out their response to their consultation on divorce law reform. They include the statement that,

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

If we look beyond that document there are plenty of other examples, including in the Family Impact Test assessment of this Bill, which states:

“The current law works against reconciliation by incentivising … a spouse to make allegations about the other spouse’s conduct which can create conflict. The alternative option which requires the couple to live apart for a substantial period of time can disincentivise efforts at reconciliation because the separation period can be affected if the couple try living together again. The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”


In promoting a no-fault system, the Family Impact Test states:

“We want to create conditions for couples and parents to reconcile if they can”.


In this context, it seems to me that commissioning research on how reconciliation is best facilitated under the new regime proposed by the Bill compared to the fault-based system that we have now is vital. The Minister might be preparing to tell me that reconciliation rarely happens during the divorce process, as he did in Committee when he said that there was little evidence that divorces that do not proceed do so because the couple have reconciled. If the Government really think that, it seems completely contradictory to all their statements about reconciliation.

I hope the Minister will not try to square this circle by simply saying that the Government’s position is that while it is not worth prioritising reconciliation, of course they support reconciliation when it is possible. Multiple statements of commitment to the promotion of reconciliation in the Government’s response to the consultation, press releases and family test are such that it does not make sense for the Government then to say that, by the time the divorce process starts, it is too late for reconciliation.

I note that when the Minister suggested this argument in Committee, he cited in defence the Newcastle University study of the Family Law Act 1996 pilots. He told the House about the information meetings that were part of the Family Law Act 1996 and said:

“The purpose of that meeting included providing the parties with information about marriage counselling. Academic research into various models of information meetings found that they came too late to save marriages and tended to incline parties who were unsure towards divorce.”—[Official Report, 3/3/20; col. 564.]


He also implied elsewhere in Committee that the information meetings were not effective.