ADOPTION BILL

HL Deb 05 July 1968 vol 294 cc547-57

11.7 a.m.

LORD BLYTON

My Lords, I beg to move that this Bill be now read a second time. This Bill has gone through all its stages in the House of Commons where it was sponsored by the honourable Member of the Scotland Division of Liverpool, and I believe it has the support of the Government. The main purpose of the Bill is to give effect to The Hague Convention on the Adoption of Children. The Bill provides for certain overseas adoptions orders, whether under The Hague Convention or otherwise, to be recognised in our law in the same way as adoption orders made in Northern Ireland and the Isle of Man, as provided for in the 1964 Adoption Act. It would be gratifying if the United Kingdom, which is regarded as having an enlightened attitude towards adoption laws and adoption, were to be the first country to ratify the Convention.

During the last ten years there has been a great need to achieve international agreement over the control of what are often called inter-country adoptions. This springs from two distinct sources. One consists of social workers who are disturbed by the dangers of adoptions which are not properly recognised and regulated; the other consists of the legal profession who are concerned with the conflicts of jurisdictions and laws in adoptions where the adopters and the child are subject to different personal laws. The social workers are concerned with the problems which arise where a child from one country is adopted by a couple from another country.

Inter-country adoptions present the adoption agencies and workers with great problems. A child has to be taken from its native land and sent, say, to the United States. The adoption may fall through because on closer acquaintance the adopters may not like the child or because the adopters are considered unsuitable by the courts and adoption workers, or because the necessary consents are not forthcoming. In those cases the child is stranded. Better communication, therefore, between the social agencies in the two countries would lessen this risk. If a child is adopted by foreign adopters, the risk of the adopters being unsuitable is very real unless the most careful inquiries are made in the adopter's own country; and if the adoption is not recognised as valid in the adopter's country, again a child may be left stranded and without legal protection.

Although American adoptions may highlight the problems of inter-country adoptions, we must face the fact that the movement of labour from one European country to another, the world problem of refugees, the problem of consents and the lack of recognition are the difficulties that have been faced by the social workers.

The legal profession are concerned with the conflict of laws. Where two countries claim exclusive jurisdiction to grant an adoption or where both insist on the application of their law to adoption proceedings, the one which does not exercise jurisdiction or whose law does not apply may refuse to recognise the adoption. This is called in legal jargon a "limping" adoption—one which is valid in some countries but is not recognised as valid in others. The situation arises from the fact that some countries base their jurisdiction on domicile and others on nationality. The Anglo-Saxon and Scandinavian countries will grant adoption to persons habitually residing in their countries whatever the nationality of the adopters. But the "Code Napoleon" countries (as they are known) will grant adoptions to their nationals wherever they happen to live. Jurisdiction and applicable law are aspects of the same problem. Entwined with this is the fact that domiciled countries tend to base their adoption law on the principle that adoption is for the welfare of the child —and I believe that this is right—and that impediment; to that end should be removed.

The nationality countries start from the conception of adoption in Roman Law, that it is for the benefit of the childless adult who wishes to perpetuate his name and transmit his estate to a successor. So persons who have, or are likely to have, children of their own are forbidden by law to adopt. In recent years the differences between the modern and the traditional on adoption have lessened, and the European Convention on Adoption augurs well for the harmonisation of adoption laws. In Strasbourg, on April 24, 1967, the European Convention on the Adoption of Children was signed and ratified by Great Britain.

However, differences remain, reflecting in part the claim of the testators to dispose of their property as they choose in Anglo-Saxon countries, compared with the division by law of an estate between legitimate children in the Code Napoleon countries. Prohibitions on adoption in nationality countries by a person with children of his own, or before he has reached a high minimum age of 50, may make it impossible for a person to adopt in a nationality country, although the adoption would be allowed in countries like ours, where the law is based on domicile. The account I have given of the problems gave rise to The Hague Convention in 1960 at which 23 countries were represented.

In 1962 the Permanent Bureau of The Hague Convention circulated a suggested Convention which attempted to deal with both the legal and social problems that I have mentioned. This would have involved a considerable Amendment of the law in each country. They rejected that part of the Convention which would have modified the internal laws on adoption and instead they drew up a drat Convention designed to deal with the problems raised by the conflict of jurisdiction and law. Therefore in 1964 a revised Convention was agreed to, and it is this Convention which the Bill before your Lordships seeks to implement. So far no country has ratified the Convention and only a handful of countries, including the United Kingdom, have signed it. Although a country may sign The Hague Convention without subsequently ratifying it, at least a signature is the first step towards ratification. The countries who have signed the Convention are Austria, the United Kingdom and Switzerland. It is not known how many will ratify it.

My Lords, the main object of The Hague Convention is to determine the jurisdiction to grant, annul or revoke an adoption and to determine the law applicable in exercising this jurisdiction. Article 6 of The Hague Convention requires adoption to be in the interests of the child and a proper inquiry concerning the adopters and the child as to be carried out. Therefore it will he observed from the history of The Hague Convention that the attempt made at the beginning to lay down general principles on which inter-country adoption should be based was rejected and the only remnant of this approach is in Article 6. Although The Hague Conference rejected the suggestion that the Convention should contain principles harmonising the laws on adoption in the countries concerned, it was the Council of Europe who followed this up, and effect is given to it in the European Conventon on Adoption of Children (Cmnd. 3350). It was signed at Strasbourg on April 24, 1967, and has been ratified by the United Kingdom.

The Strasbourg Convention lays down the principles to which adoption laws should conform. Although some States may have reservations about particular principles, the Convention has been drafted with the general approval of 17 countries. Already some countries have changed or are in the process of changing their laws to conform to the Convention. Malta and the Irish Republic, as well as ourselves have ratified it and it comes into operation soon. Apart from the interesting fact that the countries concerned were prepared to hammer out a code of acceptable principles which should regulate adoption, the Convention has two useful consequences. A common code of principles means that the object of adoption is the same, the basic safeguards for the children are secured and the exchange of information concerning the child, his family and the adopters is facilitated.

The fact that there is a common code should make it easier to secure recognition of adoptions granted by foreign countries. Our country is widely respected in Europe for our law on adoption, and the Strasbourg Convention is in line with our law. Moreover, the number of adoptions here compared with any European country gives us a wealth of experience which cannot be matched by others. However, when it comes to the recognition of adoptions granted by other countries, we are less progressive and more insular. The Adoption Act 1958 recognises only adoptions in Northern Ireland, apart from adoptions in Great Britain, and the Adoption Act 1964 extends recognition to adoptions in the Channel Islands and in the Isle of Man. In general, our legislation takes account only of adoptions made within the United Kingdom and islands and by implication excludes children adopted elsewhere. Our courts have been no more liberal. The most that can be said of the attitude of our courts, based on decided cases, is that there is some authority in favour of recognition but to a limited extent—of adoptions granted in accordance with the law of domicile of all the parties concerned. Since many countries have jurisdiction based on nationality this is very unsatisfactory.

One of the difficulties which has prevented a more liberal attitude by our courts towards foreign adoptions has been the contrast between the modern concept of adoption in our law and the traditional concept; namely, the original Code Napoleon adoption. But European countries are now more prepared to recognise internal adoptions granted by other countries. Even they, however, sometimes refuse to recognise a foreign adoption. Some while ago a Dutch court, in proceedings for damages arising from a traffic accident refused to treat a child of the deceased adopted abroad as a child of the family for the purposes of Dutch law.

At the Tenth Session the United Kingdom advocated that the Hague Conference should consider the future drafting of another Convention on the recognition of internal adoptions which would supplement the Convention on Adoption which they concluded at the Tenth Session. Some of the Commonwealth countries and the U.S.A. have already given a lead in this direction. Therefore, Clause 4 of the Bill before your Lordships provides for the recognition of foreign adoptions and enables us to practise what we preach.

It is sometimes suggested by Continental jurists that our system of law rules out the possibility of our ever ratifying a Hague Convention. As a result, some Continental jurists have tended to pay slight attention to our views in discussions on draft conventions. But today proof that we are prepared to ratify The Hague Conventions should result in increased attention being given to our views which should be fruitful to both sides. Because we will become involved with others whose laws are different from ours, the Bill is technical and complex, hence my reason for giving a long background to the Bill, which I have tried to explain in as simple a language as I can. Although I could say much more, I do not want to take up too much time. This is Human Rights Year, and I believe that your Lordships could do nothing better today than to ratify the Convention embodied in this Bill. I beg to move.

Moved, That the Bill be now read 2ª. —(Lord Blyton.)

11.25 a.m.

BARONESS BROOKE OF YSTRAD-FELLTE

My Lords, I am delighted to support the Second Reading of the Adoption Bill which has been moved by the noble Lord, Lord Blyton. Adoption is not everything. A child's birthright should be a happy home, where he or she can be loved and cared for by his or her own parents; but with so many thousands of illegitimate children being born every year, their only hope of happiness—poor little scraps—lies in adoption. The more that can be done to rationalise adoption the better, for it would mean that greater numbers or potential parents and unwanted children may be brought together. I think that the House has every reason to be extremely grateful for the care with which the noble Lord, Lord Blyton, moved the Second Reading of this Bill. His explanation was so clear that it is quite unnecessary for me to add anything more. I beg leave to support the Second Reading of this Bill.

BARONESS GAITSKELL

My Lords, I should very much like to support my noble friend's Bill. I should like to give the House a small personal experience in this matter. Some years ago a girl who helped me in my house had an illegitimate baby. The father was an Iraqi and she was a Swiss girl. I wished to help her to get the child adopted, because she could not afford to keep it. She put it in a home for some weeks, at a cost of £2 10s. a week, but she could not afford this figure for any length of time. I had the greatest difficulty in helping her. We simply could not get the child adopted by any of the religious adoption societies. They would not allow any couple to take this little girl because she was the daughter of an Iraqi and a Swiss. In the end, after a great deal of trouble and getting in touch with many welfare organisations, we got the child adopted by a Jewish family, who had already adopted a little boy and wanted a girl. All this took about six months. Therefore it seems to me that this Bill is extremely necessary, and I give it my wholehearted support.

LORD LEATHERLAND

My Lords, I want in three sentences to add my support to this progressive, humanitarian measure. As one who served for many years on a county council, I have seen the excellent work that children's departments do.

My object in rising is to draw attention to Clause 2 of the Bill. Subsection (1) says: Subject to the provisions of this section, the Adoption Act 1958 shall have effect as if any reference in that Act to an adoption order within the meaning of that Act, other than a reference in the provisions mentioned in subsection (2) of this section, included a reference to an adoption order within the meaning of this Act. It goes on: (2) The aforesaid provisions of the Act of 1958 are sections 1(1) to (4), 9(1) and (5), 10(1), 11(1) and… And a great many other references follow. I recognise that it is probably necessary for the Bill to be drawn in this somewhat complicated form, but I think that when this measure is put on the Statute Book it might be a good thing if the various Acts relating to adoption were consolidated so that they co be readily understood by people who might like to make use of adoption legislation, the staffs of various children's departments and voluntary societies through-out the country. If that were done, I suggest that at the same time a simple kind of "child's guide" to the whole adoption law might be prepared for the use of those who are interested. I support the Bill wholeheartedly.

LORD SOPER

My Lords, in two sentences I should like to support the Bill, and to congratulate my noble friend. First, I am sure that the religious associations, of which I know a little, will be helped over some of the constitutional legal difficulties which hitherto have occluded or, at any rate, discouraged them from taking the kind of line that they would have wished to take. Secondly, I am sure that, whatever the conditions that have prevailed in the past with regard to these religious organisations, it will be within the cognisance of your Lordships that today a more liberal attitude is apparent which will, I think, accrue to the general benefit of the children who need to be adopted. This Bill will facilitate the kind of humanitarian as well as religious principle upon which the adoption of children ought to be founded.

11.32 a.m.

THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)

My Lords, I think it is appropriate that a Bill of this kind should have been moved by my noble friend Lord Blyton, and that it should have been supported from the Opposition Benches by the noble Baroness, Lady Brooke, whose work in this field is so well known and appreciated, and from the Government Benches by my noble friend Lady Gaitskell. I too join with them in thanking my noble friend for introducing this Bill, and in commending it to the House. It is not a Government Bill, but the Government welcome it and have given assistance with the drafting. Anyone who has had experience in this field, and certainly anyone who has been a Member of another place for any period, will have many instances in his or her recollection of the acute problems that arise, and the great unhappiness that can be caused, as a result of the general indifference, one might say, of man's inhumanity to man, and by the stubborn and illogical prejudices which linger on.

Adopted children have the same need of loving care and of belonging, the same legal rights and the right to national status, as have the parents' own children. But these rights have been denied by out-of-date and indefensible legal restrictions, which must be swept away. My noble friend Lord Leather-land referred to the apparently complicated Clause 2 of the Bill, and said how difficult it might be for people to understand; and he suggested that a comparatively simple and easily understood leaflet might be published. This is a suggestion that I will mention to my right honourable friend the Home Secretary.

Although the Bill may appear complicated, it has the simple object of removing the difficulties experienced by children whose nationality or domicile is different from that of their adopters. Your Lordships can readily imagine the sort of complications that can and do arise when an adoption is recognised in the country of the adopters, or in that of the child, but not in both; and in our modern society the number of these inter-country adoptions is increasing.

When the Bill becomes an Act, it will enable the United Kingdom to ratify The Hague Convention on the Adoption of Children, which seeks to reconcile the conflict of laws between member countries. So far, three countries, including the United Kingdom, have signed the Convention, and, as my noble friend Lord Blyton said, it would be fitting if the United Kingdom, with its modern approach to adoption, were to be the first to ratify it.

We have had a clear and valuable statement from my noble friend on the work of The Hague Convention and of the differences which were then discovered, and of how the Council of Europe decided to prepare a further Convention which would advance the modern concept. I am glad to feel that the United Kingdom delegates played a leading part in this work, and that the Second Council of Europe Convention which resulted is in accord with our own United Kingdom adoption law and practice. We were able to ratify this Convention without amending legislation, and we did so last December. Malta and the Irish Republic also ratified, and the Convention came into force on April 26 last. I am glad to say that other Council of Europe countries are planning to amend their adoption laws and practice with a view to ratification.

My noble friend's Bill will enable us to ratify The Hague Convention by applying our own internal law modified as necessary to comply with the provisions of the Convention. The Bill is non-exclusive; this means that anyone who cannot obtain an order under The Hague Convention because of some prohibition or legal requirement of the other country involved will still be able to apply for an internal adoption order if he is eligible to do so under our internal law. Because of the international aspects of adoptions under The Hague Convention, the power to make such orders will be vested in The High Court, and, in Scotland, in the Court of Session.

The Bill also empowers the Home Secretary to specify by order the other countries whose adoption orders shall be recognised. It is likely that the first will be countries who ratify The Hague Convention on the Adoption of Children or the Council of Europe Convention on the Adoption of Children, and those of a number of Commonwealth countries whose laws are similar to our own. The Government also welcome the provision which will make it possible for a child born in this country and adopted overseas under an adoption order recognised in this country to obtain a short birth certificate in his new name. This may sound a small matter, but I know only too well that the inability to obtain such a certificate can cause not only inconvenience but sometimes the most acute distress to the person concerned and to his family. It is good that we should be able to sweep this away.

I am sure your Lordships will welcome this opportunity to assist the children and the adoptive parents who are concerned in inter-country adoptions. I support my noble friend's Bill, and warmly commend it to the House.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.