Lords Amendment: In page 2, line 21, leave out from beginning to "on" in line 28, and insert:
Subject to the following provisions of this section, any consent required by this section for the making of an adoption order may be given either before or after an application has been made for the order; but the consent of the mother of the infant shall be of no effect for the purposes of this section if given earlier than six weeks after the birth of the infant.
(3) Any consent given for the purposes of an application for an adoption order may be given (subject to such conditions, if any, as may be specified therein with respect to the religious persuasion in which the infant is to be brought up) in respect of any order which may be made in pursuance of the application, and shall be valid notwithstanding that the identity of the applicant is not specified in the consent or known to the consenting party; and where a consent so given by any person is subsequently withdrawn
§ Mr. Basil Nield (City of Chester)
I beg to move, "That this House doth disagree with the Lords in the said Amendment."
I think it would be convenient to the House, Mr. Deputy-Speaker, to take this together with the next two Amendments to line 30 and 31, to which we propose to disagree.
§ The Under-Secretary of State for the Home Department (Mr. Younger)
Is this the appropriate moment for me to move the Amendment on the Order Paper in substitution for the proposed Lords Amendments, Mr. Deputy-Speaker?
§ Mr. Deputy-Speaker (Mr. Bowles)
We must agree or disagree with the Amendments which another place has sent to us. After that the hon. Gentleman will have his opportunity.
§ Mr. Deputy-Speaker
May I explain what I think is the position? The hon. Gentleman can adduce his argument, then the House will come to a conclusion on the Lords Amendment; then when all the Lords Amendments have been disposed of, the hon. Gentleman can formally move his own.
§ Mr. Younger
If I understand your Ruling correctly, Mr. Deputy-Speaker, I can now speak in argument to my Amendment in lieu of the Lords Amendment, and I shall move it subsequently if the House agrees to disagree with the Lords in their Amendment.
This is a rather important matter. Clause 3 deals with consent to adoption. Consent has been the most difficult and contentious aspect of this Bill and I believe it is now the only point on which we shall find it necessary to have a long discussion. This Amendment which I 1595 shall move is the result of much consultation and prolonged effort in order to reconcile opposed views on this matter. Since there has been a good deal of misunderstanding of the law in relation to consent to adoption, I hope the House will bear with me while I go into the position under the existing law.
Under the 1926 Act it is provided that an adoption order shall not be made without the consent of certain persons. It is important to understand that the consent referred to there is a state of mind. It is the state of mind of the persons who are listed in the Act and who are concerned with the order. That has to be distinguished from the evidence of consent, which may take the form of a signed document that may have been signed at some previous time. One wants to keep clearly in mind the difference between evidence of consent, which may take many forms, and consent itself, which is what the courts have to be satisfied about before they make an order.
Moreover, it must be consent at the time when the order is to be made. That is the finding of the Court of Appeal under the 1926 Act, but in Clause 3 of the present Bill we have adopted the same words as were in the 1926 Act, namely—An adoption order shall not be made except with the consent of every person….Those are the same words upon which the Court pronounced, and therefore it will still be the case if this Bill becomes law, that it will be necessary for the consent to be a consent at the time of the order.
Thirdly, under the 1926 Act—I think Section 3—it is necessary that the court must be satisfied that consent has been given to the order for which an application is made; that is to say, it cannot be simply a general consent to adoption but must be a consent to a specific adoption order.
Those things are all the case under the present law and two types of difficulty have arisen which it has been sought in the course of this Bill to meet. First, every one with experience of adoption is agreed that it is often desirable to conceal from a natural parent the identity of the people who are proposing to adopt the child. It is better that, when the order has been made, contact with the former family should be completely broken and 1596 that the child should become in every respect the child of the new family. Throughout these Debates it has been said frequently by persons of varying opinions on other matters that it is in some cases desirable that it should be possible for the identity of the prospective adopters not to be known to the parents. On the other hand, one must admit that a mother who is contemplating allowing her child to be adopted—indeed any parent—is entitled to some knowledge of the type of home to which he or she is handing over the child. One would not suggest that she should accept, almost in vacuo, adoption by some person unnamed and undescribed.
The second difficulty under the existing law is that there certainly have been a number of cases—it would be difficult to say how many—where parents, having first signified their willingness that a child should be adopted, and having allowed the prospective adopters actually to take the custody of the child, and having left the child there perhaps for some time, have changed their minds and have taken the child back. There is no denying that cases of that kind cause considerable hardship to those who have already taken the child into their care and, in many cases, have begun to count on it as a member of the family. It may also have ill results for the child, which has already been transferred from one home to another since, if it transferred back that is another change which may be made just when it was settling down.
On the other hand, again there is a reverse side to the problem, that one must safeguard carefully the right of natural parents—especially the mother of an illegitimate child which is so often the case one has to consider—to have full time for thought and, if necessary, an opportunity to reconsider her decision before she is finally deprived of all her rights in respect of the child.
Clause 3 of this Bill, as it left this House and went to another place, sought to deal with the first point, that is the point of concealing the identity, by introducing a form of general consent—consent generally for adoption and not consent given in respect of a specific application—and that was something new which had not been known to the previous law. By going on to provide that if such a consent was subsequently withdrawn only 1597 on the ground that the person whose consent was asked did not know the identity of the proposed adopter, the court would be empowered to deem that consent to be unreasonably withheld and, therefore, under the terms of Clause 3 (c) of the Bill, would be able to dispense with it and to make the adoption order despite the lack of consent. That was how the Clause sought to deal with that problem as the Bill left the Commons.
The second point—the difficulty of the parent who changes his or her mind—was not dealt with in any substantial way at all except in so far as the provision to which I have just referred—where a consent could be deemed to be unreasonably withheld if it was withheld only on the ground that the identity was not known—might be said to give a very limited protection to prospective adopters in some classes of case.
A number of hon. Members, and particularly my hon. Friend the Member for Eton and Slough (Mr. Levy), protested at various stages, including Third Reading, that there should be some greater protection for persons who intend to adopt and who already have the child in their care. Broadly speaking, the sort of thing which my hon. Friend had in mind was that at some stage before the final order came to be made, it would be advantageous, that the evidence of consent given by a natural parent should become final or that it should be impossible to go back on such consent once it had been given.
When this matter went to another place, the proposition for a general consent to adoption by an unnamed person and not in respect of any particular application was rejected by the Lords principally on the ground that it was not right to encourage natural parents of a child so to neglect their responsibility as simply to hand over a child to anybody who might care to adopt it. Their Lordships agreed, however, that the actual identity need not be disclosed in all cases, and they produced, in the Amendment which is now before the House, a formula which was intended to go some way towards meeting this difficulty.
Secondly, their Lordships rejected entirely—this point was put specifically to them in the course of their Debates—any 1598 proposal that a consent to adoption by a natural parent should become irrevocable at some time before the hearing for the final order. After all, until that time arrives all other matters are still in flux. It is still possible, for the prospective adopters to say that they no longer want the child and to give it back. It is still open to the court to say that the prospective adopters are unsuitable. Therefore, it was argued in another place that it was not acceptable that the only person who should have, so to speak, the door closed against her, while it was still open to all others, should be the natural mother or natural parent.
Their Lordships did, however, attempt to introduce a safeguard against the frivolous taking of a consent from a mother by providing that her consent should not be taken until six weeks had elapsed after the birth of the child. I am not using the strict legal language, which hon. Members may check from the paper, but am relating the effect of the Amendment. Their Lordships also made certain provision for the taking of evidence of consent from a mother in a particular written form.
Since those things were done in the summer very many representations have been made about the proper way to deal with this extremely difficult problem. Although the views which have been strongly expressed are not, perhaps, irreconcilable, they have nevertheless proved exceedingly hard to reconcile. The main object of the present proposals which I am anxious to suggest to the House, is to find a reasonable solution which, on the one hand, will give some safeguard against what one might call an irresponsible snatch-back of the child who is already placed with prospective adopters, while, on the other hand, keeping intact the essential rights of a natural parent. In addition, we have taken the opportunity to clear up certain ambiguities of drafting, particularly the point I have mentioned regarding consent—the difference between the consent itself and evidence of consent. We have also altered the provision about concealing the identity of the prospective adopter.
We appreciate that detailed procedure for protecting the identity of a prospective adopter will have to be laid down beyond what is proposed in the Amendment. It will have to be laid down in 1599 rules, and it may in some cases be quite a difficult matter for a court which is dealing with the application, which has to take into account the interests of all parties, to ensure that the parties do not meet and that they do not get to know each other's identity. That, however, is a matter for which, we think, we can provide satisfactorily in rules in addition to the words used in subsection (2) of the Amendment.
The main point of the Amendment—the new subsection (4)—deals with the question, to which I have already referred, of the parent who wishes to change his or her mind. The practical point to be dealt with is not any question of the mother's consent, because that only arises when the hearing of the application for the adoption order takes place; consent in the technical sense, as used in the law of adoption, is only relevant when the court has to decide on the hearing of an application whether or not the necessary persons do consent to the making of the order. What we have to provide against is what I have called the "irresponsible snatch-back" in the period before the application for the order is heard—that is to say, when the child is already in the custody of the prospective adopters but when the time for the order has not arrived because, most likely, the probationary period of three months, which is laid down in another part of the Bill, has not come to an end. In the new subsection (4) we have sought to meet that case while still preserving the essential rights of a natural parent.
I should like to quote the new subsection (4):While an application for an adoption order in respect of an infant is pending in any court"—that means, once an application for an adoption order has been lodged in any court. Under the Bill, if it is passed, the lodging of an application will be possible quite early—indeed, at the very beginning of the probationary period; whereas, at any rate in the case of adoption societies, it has not hitherto been possible under existing law even to apply until the probationary period had expired. Therefore, the expressionWhile an application … is pending in any court.means the period after the prospective
1600 adopters have made their application, and not necessarily after the end of the probationary period. The subsection continues:any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application "—that, of course, rules out the type of general consent to which their Lordships objected—shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant; and in considering whether to grant or refuse such leave the court shall have regard to the welfare of the infant.As regards that final phrase, perhaps I might point out that already, under the 1926 Act, a court cannot make an adoption order unless it is satisfied that it will be in the interests of the welfare of the infant to do so. This explains the origin of the phrase.
Let me briefly examine the proposition which I have read out from the two points of view which have been plainly expressed in the course of our Debates. First, from the point of view of the natural parent, and in particular the natural mother, what is the effect of this Bill as it is proposed to amend it going to be? There are safeguards in the Bill which did not previously exist against her being influenced prematurely into giving a rapid or ill-considered consent. There is the period of six weeks and the provision for the manner in which her written consent has to be submitted to be considered as evidence. If she can be traced she must have notice of the filing of an application of adoption and, therefore, it cannot happen without her knowing. New rules will be added which will ensure that she will know exactly how it is she is to make application to the court under subsection (4), if this Amendment is passed.
If she goes to the court for leave to get the child back, it is almost inconceivable that she should not be allowed to have it back, if she satisfies the court that she has genuinely changed her mind and now intends to look after and care for the child. Even if the court refuses to let her have the child back, that still does not affect her right to make a protest, or, when the case comes for final hearing to refuse consent to the adoption order because, if this subsection is accepted, it 1601 will still be the case, as under the present law, that what the court have to be satisfied of is the consenting state of mind of the person at the time of the order. All that the refusal of the court would mean would be that she could not take the child back in the meantime and when the case came for final hearing she would still have her opportunity.
It may be necessary to make further provision in the rules—at any rate in the juvenile court rules—to ensure that if an application is not followed up expeditiously and there is undue delay, proceedings will be terminated. This is already partly covered in the county court, but not so well covered in the juvenile court rules. But, I would point out, the natural parent has only to apply to the court under subsection (4) to bring up the whole matter and there is no question of her having to wait an indefinite period.
§ Mr. Benn Levy (Eton and Slough)
Will my hon. Friend amplify that a little more? It is an important point and I am not sure that I am seized of it. On whom rests the responsibility of expediting the matter?
§ Mr. Younger
The position under the existing rules differs slightly in the case of the county court. In the juvenile court, once an application has been made and guardian ad litem appointed, the court fixes the date. The prospective adopters would be concerned to expedite the hearing, but one may conceive cases in which they might wish to leave the application lying. As far as the rights of the natural parent are concerned, they would be safeguarded because the whole matter could be brought to the attention of the court under the new procedure proposed by subsection (4) and it is open to a natural parent to apply to the court to get the child back. The whole matter would automatically come before the court and, in those circumstances, we must rely on the discretion of the court to handle a matter in a reasonable manner.
Having said what I think are the advantages to the natural mother, or the natural parent, I turn to the point of view of the prospective adopter. I think it a great advantage, once consent to an application has been signified by a natural parent, that the adopters can file their application immediately at the beginning 1602 of the probationary period. That should greatly reduce the delays that were spoken of in earlier Debates, which sometimes occur after the application has been lodged. After the application is lodged and a guardian ad litem appointed, there seems little reason why, in the normal course, the court should not grant the order at its first sitting, or at an early sitting after the probationary period. The new subsection should also give protection against frivolous applications to take the child out of the care of the prospective adopters. The mere fact that the natural parent has to go to a court would be a deterrent to someone who was wanting the child back for purposes of blackmail with no intention of making a home for the child.
§ 6.45 p.m.
§ Mr. Leslie Hale (Oldham)
I think this is a very great improvement and I have only one comment to make on it. The type of applicant who could be relied upon not to behave very well is probably the original parent, and that is the person who would be asked to give a general consent under this Clause.
§ Mr. Youngerindicated dissent.
§ Mr. Younger
I do not know whether we are at cross purposes, but I do not think that general consent arises under the proposal which I am putting forward. It arises under Clause 3 as the Clause went to the Lords, but this has to be a consent to a particular application—an order made in pursuance of a particular application.
§ Mr. Hale
I am much obliged to my hon. Friend, but where consent is withdrawn,on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld.I apologise for the use of the words "general consent," which I got from the Lords Amendment; but a blank consent, where the person wants the child adopted without regard to the identity of the applicant, quite obviously is that of a person whose child has to be adopted for some reason or other and, usually, it is a person in difficulty, or distress, against whom we want to protect the child It seems that in those circumstances the 1603 right to withdraw appears to be given but is not protected under subsection (4). So far as I can see, this Clause says that the person whose child is to be adopted can negative the whole procedure up to the time of the adoption order and can say, "I did not know it was going to be Mr Jones, and therefore I withdraw my consent." Subsection (4) then gives no protection.
§ Mr. Younger
I do not quite follow my hon. Friend. As regards the consent, whether it is general or particular, it is intended that the only type of consent relevant at all to our discussion shall be a consent given to the making of an order in pursuance of an application, either by a person named, whose identity is fully known, or by a person sufficiently described to satisfy the natural parent that a proper home is to be provided, but not described in such a way as to enable a natural parent to follow the child to that home. That is the whole point of the change made between the discussions in another place and the proposals we are now considering. I do not think it is necessarily the case that a person who would consent to the adoption of the child by a person who is described but not actually named would be an undesirable person at all.
§ Mr. Younger
I should think it would be quite proper to accept a person who is sufficiently described to give the impression of a person who would make a good home, but not to identify that person. That is the purpose of the proposal. I am not quite clear what exactly was the danger my hon. Friend apprehended. I gather that he was afraid that a not very stable or responsible type would be able to use subsection (4) and, if the court in its discretion, having regard to the welfare of the infant, decided that person should have the child, then it is perfectly true that the adoption proceedings would come to an end.
§ Mr. Hale
I want to clear the matter up. It may be that I am under a misunderstanding. Subsection (2) says:… where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the 1604 purposes of this section to be unreasonably withheld.Those words presumably mean something and they say that if consent is withdrawn,on the ground only that he does not know the identity.Supposing it is withdrawn not only because he does not know the identity, but for something else. Then presumably if these words mean anything the court has not the power to withhold the consent. In other words, as I read it, subsection (4) does not give the sort of protection which it was thought it gave.
§ Mr. Younger
I do not know what protection my hon. Friend thought it gave. It gives protection against the thing which is stated—if consent has been given and is then withdrawn only on the ground that identity is withheld, it can be deemed to be unreasonably withheld. Apart from that the only protection which is given is contained in Clause 3 (1), which is not affected by this Amendment, and which sets out in paragraphs (a), (b) and (c) the circumstances in which the court may dispense with consent on the grounds inter alia that consent is unreasonably withheld. These safeguards are not complete, and there must be an element of discretion. The range of circumstances in which the court may take such consents to 'be unreasonably withheld, and consequently the protection given under Clause 3 (1), must in the nature of things be relatively limited.
I am sorry to have taken up so much of the time of the House, but this is a difficult problem on which a wide range of views has been expressed, and I wished to cover the ground. The proposals which I am putting before the House probably do not give any of the contestants, if I may so describe them, a 100 per cent. of what they want but I suggest that they are a reasonable compromise. They strike a practical balance between interests which inevitably conflict to some extent.
I would point out that we have reached a very late stage in the progress of this important Private Member's Bill. We are all anxious that the Bill should become law and it is clear that there can be no possibility of any further modifications passing backwards and forwards between the two Houses if this Bill is not to be lost. It is some time since these Amendments were put before us by the House 1605 of Lords. We have had three or four months of very full consultation in which the hon. Members who have been concerned with this Bill in this House and also those who have been concerned in another place have taken part. I am entitled to say to the House that I have some reason to think that the present proposals come as near to satisfying all those who have an interest in the matter as we are likely to get, and that they have a better chance than any other proposals I have seen of commanding general agreement. I ask all Members who are anxious to see the Bill on the Statute Book, and by that I mean all Members, to accept these Amendments.
§ Further Lords Amendments disagreed to:
§ In line 30, leave out "the last foregoing section" and insert "this section."
In line 31, at end, insert:
(4) Provision shall be made by rules under section eight of the principal Act for securing that any consent given by the mother of the infant for the purposes of this section otherwise than before the court which makes an adoption order shall be given in writing, in such form as may be prescribed by the rules, and signed, upon the date upon which it purports to be given, in the presence of a justice of the peace.
§ Mr. Nield
I beg to move, in lieu of the Lords Amendments disagreed to, in page 2, line 21, to leave out subsection (2), and to insert:(2) The consent of any person to the making of an adoption order in pursuance of an application may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld.(3) Where any person whose consent to the making of an adoption order is required by this section does not attend in the proceedings for the purpose of giving it, a document signifying his consent to the making of such an order shall, if the person in whose favour the order is to be made is named or otherwise described in the document, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings; and where any such document is attested by a justice of the peace (or, if executed outside the United Kingdom, by a person of any such class as 1606 may be prescribed by rules made under the principal Act), the document shall be admissible as aforesaid without further proof of the signature of the person by whom it is executed:Provided that a document signifying the consent of the mother of an infant shall not be admissible as aforesaid unless—
- (a) the infant is at least six weeks old on the date of the execution of the document; and
- (b) the document is attested on that date by a justice of the peace or, as the case may be, by a person of a class prescribed as aforesaid.(4) While an application for an adoption! order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant; and in considering whether to grant or refuse such leave the court shall have regard to the welfare of the infant.(5) For the purposes of subsection (3) of this section a document purporting to be attested as mentioned in that subsection shall be deemed to be so attested, and to be executed and attested on the date and at the place specified therein, unless the contrary is proved.I move this Amendment formally, but I might perhaps be allowed to say one or two things as I was originally responsible for the Measure. The House may recall that there was this one outstanding point which has caused a measure of difficulty, and after the Bill left this House there were discussions between interested people in order to achieve some sort of compromise. I am anxious to say that I am grateful to the Under-Secretary for the explanation which he has given, and for the great help of his Department in arriving at this proposal. I would ask the House to accept the Amendment and I lay particular emphasis on the concluding passage of the Under-Secretary's observations to the effect that we are now reaching a stage where any further Amendment is likely to lead to the loss of the Measure. I feel that in all the circumstances we have, in trying to bring together the conflicting views, reached the most reasonable state of things that can be achieved. I ask the House to support this Amendment.
§ Mr. Parker (Dagenham)
I should like to give general support to this compromise. We have had many discussions 1607 on this point and I think that on the whole the Amendment represents a reasonable compromise between the opposing views. I should like to raise one point. During the discussion on this proposal evidence has come forward of a good many undesirable types of case—
§ Mr. Speaker
If the hon. Member is proposing to move his Amendment to the proposed Amendment, he cannot speak now because he would be speaking on the main Question.
§ Mr. Hale
I should like to make an observation as I intervened during the speech of the Under-Secretary, in which he gave a most lucid explanation of this new provision, in respect of 99 per cent. of which I expressed approval. What my hon. Friend said about Clause 3 removed a large part of the apprehension I had in mind. He was right and I was wrong. There is sufficient protection in the Bill outside this Clause to deal with the point I have in mind, protection which I had overlooked. I can accordingly give my complete blessing to, this new provision, which appears to me admirably to meet the point which we are discussing.
§ Mr. Speaker
What I said to the hon. Member for Dagenham (Mr. Parker) will apply to the hon. Member. He cannot speak now if he wishes to speak on a subsequent Amendment to the proposed Amendment.
§ Mr. Somerville Hastings (Barking)
I beg to move, as an Amendment to the proposed Amendment, in line 11, after "described," to insert "without disclosing his identity."
§ Mr. Speaker
I presume that the hon. Member will second the Amendment in the name of the hon. Member for Dagenham (Mr. Parker). He cannot speak twice because in doing so he would also be speaking on the main Question.
§ Mr. Speaker
We can surmount that difficulty. We have first to dispose of the Amendment in the name of the hon. Member for Barking (Mr. Hastings) which I have called. Then we shall return to the main Question, and if the hon. Member wishes to speak on the main Question he will have an opportunity to do so before I call the next Amendment.
§ 7.0 p.m.
§ Mr. Hastings
What I wish to do is to make assurance doubly sure that a document signed by the natural parent of the child can be considered as evidence of consent by a court if the person by whom the child is to be adopted is, "named or otherwise described" without disclosing his identity. I feel that it is of the greatest possible importance to adopters that, where they so desire, their names should not be disclosed to the natural parent of the child. I am speaking from knowledge, because people have expressed this view to me on more than one occasion. People who have adopted a child are in constant terror that the natural parent will turn up. I know perfectly well that when the legal process is complete the natural parent cannot possibly get the child back from them, except by permission of the Lord Chancellor, or some very complicated process.
But the natural parent can be a very great trouble to the adopter. The natural parent can, and in certain circumstances has, levied blackmail, or tried to get to know the adopted child, or has tried to undermine the affection of the adopted child towards his adopted parents, and a great deal of difficulty has been caused. That is more likely to occur in the case of children who are adopted at a relatively late age. In my ignorance I originally supposed that children were usually 1609 adopted at a very young age, but since I have had a good deal to do with adoption as chairman of that section of the Children's Committee of the London County Council dealing with adoption, I have discovered that many people adopt children at later ages, up to 12 years.
I have also discovered that when children are 'boarded out with foster parents the foster parents get very attached to the children. They fear that the children will be taken away from them, and they are quite ready to adopt these children, so that adoptions take place at all ages. These people feel there is a danger of the affection of the child being diverted from them. The only way to avoid that is for the natural parent not to know the name of the adopter. I want to be quite sure that in the words, "named or otherwise described"—the "otherwise described" part of it will, if the courts feel it necessary, make it impossible for the natural parent to find out the name of the adopter. I wish to be sure that "otherwise described" can be interpreted in that way. For example, if an hon. Member of this House were described not by his name but as, "the hon. Member for so-and-so" it would be very easy for the natural parent to find out his name. I am very anxious to make sure that that can be made quite impossible if the courts so desire.
§ Mr. Thurtle (Shoreditch)
Do I understand my hon. Friend to say that what he wishes to avoid is that if a natural mother should have the wicked impulse to establish contact with her child again, the law must take great care to see that she is not able to gratify that impulse?
§ Mr. Younger
I think I can set the mind of my hon. Friend at rest about the meaning—and certainly I can about the intention—of what is already in the Bill. Perhaps my hon. Friend the Member for Shoreditch (Mr. Thurtle) will forgive me if I tell him I consider he is mistaken about what is the purpose 1610 of the proposal we are discussing. Most people concerned with this subject agree that once the adoption order is through, once the child has become a member of the new family and has ceased to be a member of the old family, it is frequently extremely advantageous that the severence should be final; that there should be no contact between the old family which has agreed to part with the child and the new family which has now become—we hope in every respect—the family of the child.
Obviously that cannot be achieved if in the proceedings of the court it inevitably becomes clear to the natural parent who is the prospective adopter, and if, consequently, it is always possible for the former family to get into touch with the new family. That is what we seek to avoid. I would suggest to my hon. Friend the Member for Barking (Mr. Hastings) that the text I have put before the House will achieve that. In the new subsection (2) it is laid down—I am paraphrasing—that the consent of any person may be given without knowing the identity of the applicant for the order. I think that is quite clear. It leaves it open for a consent to be given without the identity being revealed.
In the next subsection—subsection (3)—which is the one my hon. Friend seeks to amend, there is a distinction drawn between a person in whose favour the order is made being named or otherwise described. In the light of the previous subsection it is quite clear that the purpose of those words, "or otherwise described "is to implement what was said in the previous subsection, namely, that consent could be given without knowing the identity. Those two phrases taken together make that unambiguous. The actual concealing of the identity will present a difficulty much more practical than statutory.
We contemplate in the new rules that it will be necessary to lay down with great care the procedure to be followed if throughout these proceedings the parties are to be kept apart sufficiently to prevent the one from knowing the other. As hon. Members probably know, there are already in the rules certain provisions enabling the court to see the different parties at different times and not always together. There are great practical difficulties involved, but we 1611 intend to do everything which can be done in the rules. I hope that that assurance will be sufficient for my hon. Friend, and that he will not press this Amendment which, in any event, is not very suitable, for technical and drafting reasons.
§ Mr. Hastings
I beg to ask leave to withdraw the Amendment.
Amendment, to the proposed Amendment, by leave, withdrawn.
§ Mr. Parker
I beg to move, as an Amendment to the proposed Amendment, in line 33, at the end, to add:(6) Where an initial consent is revoked the natural mother shall compensate the intended adopters for any reasonable expenditure that they shall have incurred on behalf of the child. In case of disagreement the sum entailed shall be decided by the courts having regard to the means of the natural mother.I put down this proposal in conjunction with my hon. Friend the Member for Eton and Slough (Mr. Levy) in order to draw attention to a particular grievance which we have found exists. There are quite a number of cases, rather more than one would have thought, in which a mother definitely places out her child for a period with the idea of getting the child kept by someone; and with the idea from the very beginning that she will get her child back at a later date. She puts the child out for her own convenience without any thought for the would-be adopting mother or the welfare of the child, and at the cost of the would-be adopters. In the case of such people I think it very desirable—knowing there are a certain number of such cases, let us hope not many—that the natural mother should have to compensate financially the adopting mother. That would be some check on this practice. Of course, it would not meet the problem of the feelings of the adopting mother who would suffer from having had the child torn away from her after she had become fond of it. It is desirable that there should be some check on the natural mother who wishes to park out a child and get it back later. It was in order to draw attention to this type of case that we put down this Amendment.
§ Dr. Santo Jeger (St. Pancras, South-East)
We have been told by those who are piloting this Bill through the House that a very delicate balance has been arrived at between the interests of the various parties concerned. It is true that we have arrived at a satisfactory compromise, but I consider that the Amendment moved by my hon. Friend the Member for Dagenham (Mr. Parker) would upset it altogether. His suggestion would be impracticable to administer because the sort of expenditure which adopting parents are likely to incur is difficult to define and difficult to recover. They might decorate a room, convert a room into a nursery and buy a pram. All these are items of capital expenditure which could easily be used in the case of a second adoption if the first fell through.
The sort of expenditure which could not be recovered would be the cost of a foster mother, which is about two guineas a week. Any mother who puts her child out to be kept by adopting parents for a considerable period would not come under this Bill at all. The total period of trial adoption before the final order is to be made is no more than three months. Therefore, the total amount of expenditure on a foster mother would be something like £25.
Usually the sort of girl who becomes an unmarried mother and gets herself into this kind of position is penniless. It is not possible for her to raise a very large sum of money. She may have 26s. a week National Health Insurance, but she cannot pay the sort of debt which we have been talking about out of that. Therefore, the whole object of the proposal must be a deterrent one, to deter her from having any sort of change of mind. An unmarried mother—and it is the unmarried mothers who are mainly concerned in this matter—has undergone a very great upheaval in her life. It is the sort of upheaval which gives time for second thoughts. If there is any prospect of her developing the right kind of feeling of maternal responsibility, we ought to encourage that development and not destroy it.
The girl who gives her preliminary consent may have her second thoughts because of a complete change of circumstances. She may be able to re-arrange her life. She may possibly find a job 1613 which will enable her to have and to support her baby, or she may have an opportunity of getting married and providing a home for her child. If, on the other hand, she has always before her a threat of unknown costs which are going to act as a punishment and which are likely to prevent her from reviving her natural maternal feelings, even though they may be delayed, it appears to me to be the sort of procedure which we ought not to encourage.
The whole idea is inequitable when one compares the relative position of the adopters and of the natural mothers. This Bill makes no difference to the position that right up to the last day of the three months' trial adoption period the child can be returned to its natural mother by the adopting parents. The mother may be in a job which makes it impossible for her to keep her baby with her. For example, she may be in domestic service, or she may be training to be a hospital nurse, or she may have gone back to her parents' home where her neighbours and friends do not know what has happened. It is quite possible to find a taxi driving up to her home, or wherever she may be working, and to get a new and revised version of the baby being left on the doorstep.
On the other hand, if the natural mother wants her child back she must get a court order before she can recover the baby, but it is possible for the adopting parents to return the baby at any time within this three months' period for all sorts of insignificant reasons. I heard of a case recently where a fair-haired child suddenly developed a tinge of red. Forthwith, the adopting parents took a violent dislike to the child and returned it without notice very near to the end of the period of three months. There was a disturbance of the balance to which reference has been made.
It is no use saying that it is always possible for a natural mother to take her child back to the adoption society because there are more potential adopters than there are babies to be adopted. Supply and demand have a habit of changing, and we all know that a sellers' market does not always remain a sellers' market. Meanwhile the damage is done; and I hope therefore that the House will 1614 decline to accept this Amendment to the proposed Amendment.
§ Mr. Younger
Although I am prepared to agree that there may be cases, I should have thought that there were relatively few of the kind to which my hon. Friend the Member for Dagenham (Mr Parker) referred where a natural parent takes a mean advantage of prospective adopters seeks to have a child looked after at their expense for some months and then takes the child back. I should have thought that instances of that kind were somewhat rare, and that in so far as they do occur it is not likely that the type of parent who would be guilty of that conduct would be able to pay the sort of compensation which is envisaged in the Amendment I suggest that it would be in just those cases that this provision would be ineffective However, the main point, which was mentioned by my hon. Friend the Member for South-East St. Pancras (Dr. Jeger), is that this is a new proposal. It is perhaps a rather curious fact that among the very wide range of topics we have discussed, at no stage of the Bill, either here or in another place, has this point been mentioned.
I think that we should be raising major issues if we were to introduce the question of compensation for expenditure and if we were to add that matter to the many factors which may influence the state of mind of a natural parent in approaching the court for leave to get her child back. That would be a strange departure, and on that ground alone I hope that my hon. Friend will not seek to press his Amendment. I could produce a number of arguments against the Amendment, and I feel no confidence that if it were approved it would have very much chance of being accepted in another place. As has already been pointed out, that would run a very serious risk of losing the Bill, and I therefore hope that my hon. Friend will not press it.
§ Amendment to the proposed Amendment, by leave, withdrawn.
§ Question proposed, "That those words be there inserted in the Bill."
§ Mr. Bern Levy
I apologise if I have been over-pertinacious in hurdling over the rules of Order, but I do want for a few moments to detain the House 1615 on the subject of these Amendments. What we are faced with is, as my hon. Friend said, no better than a compromise, carrying in the opinion of many of us very great defects; and these defects ought to be stated clearly for the record.
During the many stages of this Bill, I have several times felicitated the hon. Gentleman who promoted it because I believe it to be a very good Bill, and, if I have been a trouble to him, that is because I have been trying to make it a better in one very important respect That is in connection with the question of consent to which the Lords Amendment is related and to the practice which my hon. Friend has pungently described as the system of snatch-back.
What my hon. Friend has done in moving his own corrective Amendment is a very considerable attempt to meet us, and I appreciate it. I think he has reduced quite substantially some of the disadvantages that were inherent in the Lords Amendment as they originally came before this House, though I cannot pretend that he has produced what could be described as the perfect solution, nor could he in the circumstances.
The Lord Chancellor once said on this matter that once real consent had been given it was desirable that that consent should be final. That is a basic principle, and I regret very much that both Houses could not have united to put that principle into practice. Unfortunately, the fact must be faced that in these fields of adoption work and in the related fields, there are conflicting factions. There are those who believe, as I think most of us in this House believe, that the wisest and most humane method of dealing with unwanted children is by way of adoption; but there are others who have a kind of instinctive or doctrinaire repugnance to adoption and who are at some pains to discourage it.
Indeed the activities of one vigorous spinster of this school has earned for her group the sobriquet of the Society for the Persecution of Unmarried Fathers. Another lady was quoted in another place as having visited in prison an unmarried mother who had given up her child for adoption. This girl was of a very slow mentality; she was a constant prostitute; it was not her first illegitimate child and 1616 she was a chronic petty thief. Persuasion and pestering on the part of this visitor eventually resulted in this unmarried mother withdrawing the consent which she had already given for that adoption. It was presented to her as a religious duty to take this child back, although she had no facilities for keeping it, and that it was a cross which she ought in duty bound to shoulder for the rest of her life. The interests of the child were never considered, nor even her own interests, let alone the unfortunate adopters'. And the woman took back her child, which had been living in a first-rate home and was now condemned to live in circumstances and under an influence which are very easy to imagine.
Another good lady, presumably of the same faction, is reported to have said that she herself would rather see children run over and killed in the street than brought up in a faith other than that to which she personally subscribed, if they had happened to have been born into it. Her connection with the adoption society was soon after terminated, but she has since attached herself elsewhere. It is to be hoped that the expert advisers, of whom Lord Simon made much play in another place, did not comprise such figures as these.
These Amendments come to us after a Debate in which most of their Lordships claimed to know very little about the subject, and one of them. Lord Simon, claimed to know everything about it. And it is probably true that he did indeed know everything about it. If, however, he had seen fit to exercise his great gifts of elucidation instead of his even greater gifts of obfuscation, I have no" doubt that his Amendment would not have been accepted.
My hon. Friend dwelt for some time on this principle of general consent. It was accepted by this House and rejected by their Lordships almost, as it were, through the back-door. It was sandwiched between two other proposals, both of them reasonable and acceptable proposals, one assuring religious continuity where the natural parent desired it, and the other the proviso whereby a child must be six weeks old before consent to adoption could be given. But it is notable that not one single argument was advanced against this principle of general consent.
1617 Indeed, out of six columns in the OFFICIAL REPORT, only one sentence was addressed by the noble Viscount to that point at all. I do not know if I should be in order in quoting it or not:a general consent is not to be given save in respect of an application which is pending before the court. Otherwise, this matter may be floating about for a long time, and the consent is not given sufficiently with reference to an application which has been made.What on earth does this mean? "This matter may be floating about for a long time"! I do not know to what the word "matter" refers. It cannot possibly mean that it takes longer to get a general consent than a particular consent. So I assume that that half of the sentence is merely idle verbiage. As to the second half, if it means anything at all, it means that, unless their Lordships rejected the principle of general consent, that principle would be accepted!
In this House we accepted the principle of general consent for very good reasons. We saw no reason in the world why, if a young woman went either to an adoption society or to a local authority and there met some responsible, warmhearted, trust-worthy woman who satisfied her that her child would be properly placed and cared for, she should be forced by law to make any further enquiries. Alternatively, if the mother was indifferent about the fate of her child, there was nothing we could do by law to alter that frame of mind.
But we had a third reason. General consent is the most securely confidential form of consent; and hon. Members on both sides of the House have agreed that it is of the utmost importance that the identity of adopters should be concealed. Under the present Amendment, adopters must be named or described. There has been some comment on this already, and it seems to me that "description," whatever that may mean, is very liable—and this is where I want my hon. Friend to exercise the greatest care—to open the door to the disclosure of identity. For example, if in a description given it was stated that the adopter was a handsome man, enviably young-looking for his years, who once served with distinction as Under-Secretary of State for the Home Department, there would be a very great difficulty in maintaining secrecy.
1618 I do not really know what kind of a description could be given which would not be liable to this kind of danger. If a vague description is to be given, and if all that is going to be said to the mother is, "I can assure you, my dear young woman, that the family adopting your child is a very nice one," that assurance could be given and usually was given without this Amendment. Therefore, for that reason I am a little frightened of this particular point. And so what I want to do is to ask my hon. Friend to give us certain assurances. We are not opposing this Amendment, but it is possible, by Rules and by instructions to the relevant authorities, to see that some of the more dangerous aspects of these Lords' Amendments are partly covered.
The first assurance I ask for is that when an adopter is not named but is described, that the description must not be a conclusive one; it must not be a description which will make it easy for the recipient to identify the adopter. It should be only a general description. I think my hon. Friend has already met us to some extent on that point.
Secondly, my hon. Friend emphasised already in his speech that we have progressed to the extent that adopters may apply early instead of at the end of the three months' period. I want him to assure us—and this is of some importance—that it will be made known to adopters that they can apply early. I believe that in another place the Lord Chancellor, realising the importance of that point, volunteered to see that that would be done. We were, by the way, misled when we were told that at the end of three months the adoption order could be made. Some of us were also told by an "expert adviser" that there was normally only a delay of one month after the three months' period before finality. In point of fact, I am informed that there is seldom a delay of less than from four to five months if one chooses to go to the High Court; and the High Court, by the way, is the only court that ensures secrecy. Therefore, it is not a question of three months as the law stands at present, but a question of seven or eight months. Of this adopters should be warned, and that that period can be reduced by early application.
The third assurance which I want my hon. Friend to give is that in the courts 1619 both sides shall be heard, if they so wish. In other words, when an application for the revocation of consent is put forward and is opposed by the adopters, those adopters shall be entitled to be heard in court by the judge; and, moreover, entitled to be heard in circumstances which will not make it very easy for their identity to be disclosed as, otherwise, this new procedure would make it very possible for a natural parent formally to oppose an application for adoption, to lie in wait, as it were, for the adopters to come into court and in that way to identify them. Which is something none of us wants. An instruction circulated by the Lord Chancellor would, I think, obviate that problem.
The last assurance which I want my hon. Friend to give is that adopters will be warned about the full ramifications of these Amendments. When a mother or a couple go to an adoption society or to a local authority intending to adopt a child, they should be told very clearly what the situation is and that they should not place any trust at all in a consent unless it is signed by a justice of the peace. It should be made perfectly plain to them that a consent can be revoked and they must be told that, even if it is signed before a justice of the peace, it may still be withdrawn with the consent of the court and that they must take that risk.
They must also be warned that even in that case they will have to remain in suspense, not for three months, but for seven or eight months or more: for if they desire secrecy, then the period of suspense is considerably longer than three months.
They should thus be warned that they cannot be guaranteed secrecy and that they cannot therefore really be guarded against persecution unless they are rich enough to be able to afford an application through the High Court. That is the most expensive way of doing it, but, unhappily, it is the only secure way. In the county court or in the juvenile court adopters are liable to exposure. I bitterly regret that during the passage of this Bill none of us, myself included, devised an Amendment calculated to alter that situation. I realise that it is too late now.
Finally, they must be warned that they are liable—I put it no higher than that—to be used as a mere lodging house 1620 especially since our Amendment has not gone through and that there is no way whereby they can be compensated for any of the expenditure they have undertaken on behalf of somebody elses child, however poor they themselves may be.
§ Mr. Speaker
The hon. Member cannot talk on the Amendment if it has been rejected. It was rejected, and therefore it is out of the way.
§ Mr. Levy
I apologise, Mr. Speaker; my reference to the Amendment was made in innocence, but I have, I think, said all I need. We may think—and I think that the House does—that adoption is the ideal solution of these problems, of problems that concern the unwanted child. But we must not mislead prospective adopters or allow them to be misled through any ignorance of the hazards that have been erected and the possible personal tragedies which they may be courting as a result of their good or innocent intentions.
§ Mr. Thurtle (Shoreditch)
Before my hon. Friend gives consideration to the appeal which has just been made to him, I wish to make two short points. On the question of the description of the adopter, it appears to me that what my hon. Friend the Member for Eton and Slough (Mr. Levy) was suggesting was that the description of the adopter should be so vague and nebulous that no one would be able to identify him. It seems to me that that is quite dishonest. If we are going to have such a description—from which it will be impossible to identify the person described—then we might just as well not have this provision in the Bill at all, I do not think that is in accordance with the traditions of our British Law that we should adopt a sort of hypocritical proceeding of that kind.
I would say this other word about the rules which are going to govern the right of appeal for the revocation of an order of adoption. My hon. Friend the Member for Eton and Slough said that the best way of having this point heard was to take it to the High Court. I hope that my hon. Friend the Under-Secretary of State for the Home Office will give us a pledge that the rights of the mother will not be neglected. Mothers who have been separated from their children and who may conceivably have a change of heart 1621 are provided for in the law by the machinery of appeal, but it should be incumbent upon my hon. Friend to see that the rules governing such appeals are such that they will enable the mother, who is normally in a desperate financial state, to be represented at this appeal and so have her case properly stated.
§ Proposed words there inserted in the Bill.