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Putting Children First - the New English Precedent

IF Britain's Lord Chancellor has his way, children here may soon find themselves with a powerful new ally: revised divorce laws that put children's interests ahead of those of their parents. A report due this summer from the Law Commission is expected to recommend that couples contemplating divorce notify the courts of their intention, then spend at least nine months resolving crucial details of the divorce. Their first obligation would be to decide the future of their children before settling questions of property and maintenance. Only then could couples return to court for a divorce.

By encouraging parents to look at the consequences of a family breakup rather than at the alleged cause or excuse for it, the commission hopes couples will improve their prospects of saving the marriage.

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During a week when Britons were talking of little else but the controversial poll tax, the Lord Chancellor, Lord Mackay, managed to get the attention of reporters and editorial writers when he addressed a conference of the National Society for the Prevention of Cruelty to Children in London. He told the group, ``This part of family law needs to turn the adults' attention away from asking whether the marriage is giving them what they want and towards a full recognition that they created the family, that they are responsible for it, and that, if there are children, their interests must prevail.''

In a country where four out of every 10 marriages end in the courts - the highest rate in the European Community - and where one out of five children experiences the divorce of his or her parents by the age of 16, an emphasis on reconciliation could have far-reaching effects. Already, two organizations in Britain are working to save marriages - or at least take the sting out of divorce.

The Solicitors' Family Law Association, an eight-year-old group with 2,000 lawyer-members, tries to promote a conciliatory and constructive approach rather than an angry or aggressive one. And the Family Mediators' Association, established two years ago, seeks to help separating or divorcing couples reach an agreement in nonadversarial ways. It also tries to involve children in discussions so they can express their thoughts and wishes.

This approach, emphasizing the best interests of the child, represents a shift in attitudes that could benefit American families as well. A few days after the Lord Chancellor spoke in London, the House Select Committee on Children, Youth, and Families in Washington issued equally sobering news on the state of marriage in America: Among industrialized nations, the United States has the largest number of children under 18 whose parents are divorced. It also has the largest proportion of families headed by a single parent.

``In the best interests of the child'' has long been a guiding principle of family law on both sides of the Atlantic, in theory if not always in practice. But too often the adversarial nature of divorce proceedings - pitting husband against wife, and his lawyer against her lawyer as each tries for the ``best'' settlement - shifts the focus away from children despite lip service to their welfare.

Reflecting the new conscious effort to live up to the ideal, the British magazine She is launching a broad-based campaign this spring for a more ``child-friendly society.'' Explaining the reason for their effort, editors note that ``As individuals we love our children. As a society we don't.''

The Law Commission's recommendations represent an all-important first step in affirming society's love for its children. In time, perhaps the recommendations can also serve as a model for changes in American divorce courts. It is a truism that you cannot legislate morality, but in this case the law seems to be inspired to lead the way.

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By coincidence, the same week that Lord Mackay made his plea to lessen the pain of divorce, Oxford University Press published ``The Oxford Book of Marriage.'' It seems timely that this anthology, celebrating all phases of the dance of marriage, should reserve a section for ``Children'' - one more small signal that children are being seen, and children are being heard.

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