Safeguarding Children's Welfare in Non‐Contentious Divorce: Towards a New Conception of the Legal Process?
| Date | 01 March 2000 |
| Author | Mervyn Murch,Gillian Douglas,Alison Perry,Lesley Scanlan |
| Published date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00258 |
Safeguarding Children’s Welfare in Non-Contentious
Divorce: Towards a New Conception of the Legal
Process?
Gillian Douglas,* Mervyn Murch,* Lesley Scanlan* and
Alison Perry**
This article considers the working of the current procedure intended to ensure the
welfare of children when their parents divorce but are not seeking any orders
relating to them. It shows that the process is ineffective in safeguarding children’s
welfare and is not geared to ensuring that their wishes and feelings are taken into
account. It argues that the focus of policy should shift away from assuming that
the legal system can handle the problems of divorce, towards using the legal
process as a point of contact through which families can be offered the full range
of services they may need during relationship breakdown.
Can the law governing divorce, which is fundamentally adult-centred and based on
adversarial notions of the legal process, be made more sensitive and open to the
importance of the welfare, wishes and feelings of children? An attempt was made,
whether the central parts of that Act will be implemented, due to the
‘disappointing’ results of the pilot schemes set up to try out aspects of the new
regime.2
However, even if the whole package contained in the legislation is not brought
into force, it would be unfortunate if the opportunity were completely lost to
undertake any reform of the system. This is particularly so in relation to the
importance that was attached by Parliament, when enacting the new law, to
ensuring that sufficient attention is paid to the interests of children when their
parents divorce. This concern was allied to an increased awareness of the growing
ßThe Modern Law Review Limited 2000 (MLR 63:2, March). Published by Blackwell Publishers,
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* Cardiff Law School, Cardiff University.
** School of Law, University College Swansea.
This article is based on research directed by Mervyn Murch and Gillian Douglas, and conducted by Lesley
Scanlan and Alison Perry, with Cathy Lisles, Kay Bader and Margaret Borkowski. The study was carried
out between May 1997 and September 1998 for the Lord Chancellor’s Department. We are grateful to the
Department, and to all those who advised and assisted in the study, for their help and insights. In particular,
we acknowledge the contributions of those whom we interviewed and the mediators who kindly completed
questionnaires for us.
1 Part II of the Act set out a scheme for obtaining a divorce which would require intending divorcees
first to attend an information meeting which would provide explanations about the process and its
consequences, and avenues of advice, support and assistance (s 8). They would then have to wait at
least three months before filing a statement of marital breakdown with the court (ss 5,6), which would
start a period of reflection and consideration. The length of this period would either be nine months
or, in certain circumstances, including where the parties to the marriage had dependent children of the
family, 15 months (s 7). Once the period had elapsed, either spouse (or both) could apply for a divorce
order to terminate the marriage, without having to prove fault on the part of the other spouse or a
period of separation of households. Usually, all the arrangements regarding the family’s life after the
divorce would need to have been finalised before the order could be granted (s 3).
2 This Part will certainly not be brought into force before the end of 2000, and possibly not thereafter.
See HL Weekly Hansard, vol 602, WA 39, 17 June 1999. For details of the interim results of pilot
schemes testing out the ‘information meetings’, see J. Walker, Information Meetings and Associated
Provisions within the Family Law Act 1996: Summary of Research In Progress (London: Lord
Chancellor’s Department, 1999).
lobby for children’s rights and especially of the right of a child capable of forming
his or her own views, to express them ‘freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and maturity
of the child’.3
At present, except where the divorcing parents apply for orders under the
Children Act in relation to their children (a small minority of cases each year), the
only opportunity given to the court to consider the interests of the children is
provided by section 41 of the Matrimonial Causes Act 1973. This requires the
court to consider the proposed arrangements for the upbringing and welfare of the
children of divorcing couples (the details of which are provided to the court in a
‘Statement of Arrangements’ form or ‘form M4’) before the decree absolute is
granted.4There is no requirement or procedure to ensure that the wishes and
feelings of the child have been taken into account in arriving at these proposals.
Section 41 was intended to be replaced by section 11 of the 1996 Act, under which
a similar process to that currently in operation was expected to be carried out.
However, in addition, the court would be required to have particular regard to a
‘checklist’ of factors, which amongst other things, includes the wishes and feelings
of the child.
In this article, we explore the background to the attempts to safeguard children’s
welfare through the divorce process, consider recent research into the current
working of this part of the divorce system,5and make suggestions as to how the
current law might be improved. In so doing, we argue that the state has a legitimate
concern in seeking to protect children’s interests when their parents’ relationship
breaks down, which should be manifested in a variety of spheres of activity,
including the legal system. We also consider the problems involved in giving effect
to the voice of the child in a system predicated upon parental management of the
divorce process and minimal judicial intervention. We propose that, in addressing
these issues, it is time for a new (perhaps a third?) way of viewing the functions of
the legal process on divorce, with scope, in the longer term, for providing support
mechanisms to all families facing relationship breakdown, including those outside
marriage.
Background
The growing recognition of the needs of children in divorce
The interests of children whose parents’ marriage has broken down have assumed
considerable importance in recent years as the number of such children has
increased. Fifty-five percent of the 155,500 divorces granted in 1995 were to
couples with children aged under 16 at the time of the petition and around 1 in 65
children was affected by divorce in 1995 – twice as many as in 1971.6The
attention of policy-makers and lawyers has accordingly moved away from the adult
marriage relationship to parenthood, and understanding has grown of the
psychological and social problems which can affect these children.
Alongside revision of the law relating to children, which culminated in the
Children Act 1989, the Law Commission also investigated the divorce process and
3 Enshrined in Art 12 of the United Nations Convention on the Rights of the Child.
4 The full requirements are discussed below at 183.
5 M. Murch et al, Safeguarding Children’s Welfare in Uncontentious Divorce: A Study of s 41 of the
Matrimonial Causes Act 1973 Research Series 7/99 (London: Lord Chancellor’s Department, 1999).
6Divorce Series FM2 No 23 (London: ONS, 1998); Social Trends: 1998 (London: ONS, 1998) 41.
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