Lord Mackay's well-intentioned fiasco

The proposals for divorce reform threaten to create a mess on a par with the Child Support Agency; Mediation is an excellent option, but is suitable for fewer than half the cases
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The Independent Online
Last week the bold Lord Mackay addressed Marriage Care, the Catholic Marriage Advisory Council. There was standing room only for his speech expounding the virtues of his proposed divorce reform bill, due in Parliament next month.

If for this Wee Free Lord Chancellor this amounted to supping with the popish anti-Christ, at least he sold his soul for something of tangible value. An astonishing press release soon afterwards was his reward. It reads: "The Catholic Media Office has written to all the Catholic members of Parliament pointing out that the Lord Chancellor's White Paper on divorce law reform was broadly welcomed by the Catholic Bishops Conference. Mgr Kieran Conroy said: 'It would be quite wrong if Catholic MPs were to be swayed in their view of the Lord Chancellor's proposals by incorrect information about the Catholic bishops' view.' "

What a coup, just as the Catholic MPs are being lobbied vigorously byJohn Patten to demand a free vote on the new no-fault, knock-for-knock divorce law.

If Lord Mackay were not such an honourable man, it might be suspected that he had pulled the wool over the eyes of the gullible anti-divorce Catholic bishops. Were he not so utterly ingenuous by nature, his speech might read as one of the most disingenuous for a long while. But he probably believed every word he spoke. That is what worries a lot of professionals in the field. Does he have any idea what he is doing and why?

The entire content of the speech was a paean of praise for marriage, portraying his liberalising divorce reforms as no more than marriage guidance that would get couples back together again. He sounded like the Pope. He spoke of marriage as "special

Pages more of this brought himstealthily round to the question of divorce, and even then it was as sugar-coated as a golden wedding tribute. "I do not believe that a marriage is necessarily irretrievable, just because one of the parties has asked for a divorce.... This is one of the main reasons underlying my wish to change the current divorce system ... I want couples to talk to each other. I want them to be able to think through the consequences of divorce before it happens, not after. I want them to think about what their marriage has to offer both them and their children before they decide whether or not to throw it away.... I believe mediation offers a better way of saving those marriages which are not irretrievable."

Is it surprising he had the Catholics eating out of his hand? This is the unlikely man who is introducing the most radical divorce reform since 1969 when the Labour MP Leo Abse openly advocated "libidinal liberation". Under it couples will divorce without fault after one year, instead of the present two (or five years if one partner resists). The case for reform is that the law is mocked, since most couples divorce within months on often trumped-up and damaging accusations of unreasonable behaviour. Removing fault stops that loophole, but it is a fundamental moral change.

There will be a compulsory information session for couples as soon as they file for divorce, and a very strong push towards mediation, instead of resorting to their separate lawyers. However, every piece of advice, research and evidence that the Lord Chancellor has been given has told him loud and clear that mediation does not get couples back together again. When it works, it helps them separate with less strife.

The problem with Mackay's misunderstanding and wishful thinking about mediation is that it is in danger of leading to a system that will not work, and may do much harm, especially to vulnerable poorer women. Couples will be coerced into mediation, though it will only have real force with those on legal aid. If legally aided couples refuse mediation, they will have to appear before an intake officer who will decide if they have a good enough reason for refusing.

The problem is that Mackay's sentimental view of the process has clouded the fact that these people are in bitter opposition, fighting for extremely important rights to children and property. The Solicitors' Family Law Association was not simply acting as a trade union this week when it expressed deep alarm that people would not have access to advice from lawyers. Research shows that mediation works best backed up by legal advice as the process goes along.

Diana Parker, a leading family solicitor, is also a strong believer in mediation, as a founder of the Family Mediators' Association. She says drily of Mackay's views: "The only couples who typically get back together are the violent cases, where there is still enough passion smouldering away for reconciliation after reconciliation until they finally burn out and split. The ones for whom mediation works well are those who have already disengaged, and embark upon it coolly with clear-cut objectives. In mediation they are no longer a couple, but two people with very different interests."

Mediation is an excellent option, but is suitable for fewer than half the cases. If the host of new mediators (who will not be lawyers) are on block government contracts, the pressure to get results will be intense. Mackay may have had a personal vision of happy reconciliations, but he sold it to the Treasury on the grounds that it will limit the legal aid bill for divorce, because the hourly rates for mediators will be cheaper than for solicitors.

The great majority of wives go on to social security when they separate from their husbands. They divorce on legal aid, and have no other money for lawyers. Discovering the true earnings and assets of husbands can prove very difficult, especially for self-employed men with complicated finances. Mediators on performance-related contracts may be urged to engineer quick-fix deals against the interests of the most vulnerable. They may not have the professional expertise to scrutinise difficult accounts. There is here another Child Support Agency fiasco in the making.

The most curious aspect to this whole divorce reform initiative is that there is no great pressure for it from anywhere. It is Lord Mackay's own baby, pushed through a deeply dubious Cabinet that would never have swallowed it from any less Christian source.

Virtually all the organisations concerned with marriage and divorce agree that children of divorce will be helped if conflict between couples is lessened. But the danger is that a new two-tier system is being brought in, with one law for poor divorcees, and another for the rich who can afford lawyers and accountants. All will depend on the small print of the Bill when it is published next month. If it denies poor people free reasonable access to lawyers throughout the process, then it may end up doing more harm than good.