§ Miss Vickers
I beg to move, in page 10, line 20 to leave out subsection (2).
This provision deals with the adoption rights of local authorities. I want to ensure that an adoption made in respect of a child for whom a local authority has parental rights is safeguarded. I should like to read what has been sent to me by the children's officers about this provision, because they are the people who will have to operate this Bill. They said:This Clause removes all rights which the local authority now possesses to object to an adoption order being made in respect of a child in care for whom the local authority holds parental rights.They think it is not clear that where foster-parents apply for an adoption order without the support of the local authority the local authority would be in a position to appear in court as respondent, at least not when the foster-home was in the area of another local authority.
If this Clause were enacted, it would mean that foster-parents could get in touch with a real mother and, between them, they could arrange an adoption and the local authority would be powerless to prevent this. This could lead to a type of blackmail, which has been practised by one or two foster-parents who have gone behind the back of the local authority and have got the mother's consent to an adoption of which the local authority does not approve. I understand from the various people with whom I have discussed the matter that this has already happened. Therefore, the children's officers would like this position safeguarded. I think they would be even more unhappy about this procedure in a case where there were no natural parents available.
I realise that, as the Clause stands, it is based on the assumption that a local authority which placed and retained a child in a foster-home would be satisfied to see the child adopted by the foster-parents concerned, but I do not think this is necessarily so. A child is often put in a foster-home, perhaps during the illness of the mother or for some short period; it might even go on for six months. Then if the mother went before the court it might be said that cruelty 856 could not be proved and that the adoption was defective. If the local authority were not allowed to be a respondent unfortunate consequences might arise.
At least in the early stages of any fostering, most children's officers would regard the relationship as tentative, and even subsequently it is doubtful whether fostering could go on successfully. I hope my hon. Friend will look into this matter. It may make considerable difficulties for the children's officers concerned in considering the fostering of children in the future, because it might tie their hands if the case went to the court later.
§ Mr. Page
I beg to second the Amendment.
I do not think it has been explained in an earlier stage of the proceedings exactly why it has been decided to exclude the local authorities from necessary consent in these cases. It seems to me that the whole trend of our discussion on this Bill has been to bring into adoption cases all those who have the concern of the welfare of the child. In these cases where a local authority is exercising parental rights under a fit persons order, or where it is exercising parental rights by a resolution under Section 2 of the principal Act, its consent ought to be obtained before an adoption order is made. Frankly I cannot understand the real purpose of this subsection.
§ Miss Hornsby-Smith
I hope that I shall be able to reassure my hon. Friend the Member for Devonport (Miss Vickers) that many of the fears that she has expressed are quite unfounded. Clause 18 (2) gives effect to a recommendation in paragraph 110 of the Hurst Committee. It is merely declaratory. That is to say, the purpose of this provision is to remove any doubt which there may be about the effect of the provision in the principal Act to which it refers. If we were merely to leave out this subsection as the hon. Lady's Amendment suggests, it would not reverse the meaning of the principal Act in any way. It would merely leave the matter still in doubt, and I am sure she would agree that there would be no advantage in that.
May I also reassure my hon. Friend and those who have made representations to her on another point. The object 857 which I believe the Amendment seeks to achieve, is no doubt, to require the consent of a local authority which has parental rights and powers under a court order or a resolution. I was very surprised that my hon. Friend the Member for Crosby (Mr. Page) seconded this Amendment. No one has fought more vigorously than he has for parents' rights during the passage of this Bill. Yet here he is suggesting that a local authority under, perhaps, quite a short term order is to have overriding powers over a parents' rights.
§ Miss Hornsby-Smith
It would be quite wrong to give a power which might be exercised in contravention of the wishes of the parent, even though the local authority were temporarily vested with parental rights over the child. I think I can meet the points and criticisms which have been made. First, I think it should be remembered that the Hurst Committee was against local authorities having this power, though the local authority has every opportunity to state its views because under the Bill as it stands the local authority for the area in which an applicant is living will be a respondent, and so will the local authority having parental rights and powers if it is in a different area. I think that meets the main objection raised by my hon. Friend.
We could not accept that a local authority with, perhaps, short-term powers of protection as the foster-parent of the child should be in a position to override the wishes of the natural parent, but they have the right and duty as respondent, whether within their area or whether they are for the time being assuming parental rights over the child who may be resident in another area. I assure my hon. Friend that that point is covered and I hope that she will not press the Amendment.
§ Amendment negatived.
§ 12.45 p.m.
§ Miss Hornsby-Smith
I beg to move, in page 10, line 43, to leave out from "infant" to "the" in line 1 of page 11.
§ Mr. Speaker
Hon. Members will observe that if this Amendment is carried, 858 the next Amendment in the name of the hon. Member for Smethwick (Mr. Gordon Walker), in line 43, leave out from "then" to "the" in line 1 on page 11 and insert:if it appears to the court to be for the welfare of the infant".and also that in the name of the hon. Member for Crosby (Mr. Page) in page 11, line 1, after "will" insert:within a reasonable time commence and thereafter continue towill fall. Therefore, on this Government Amendment the hon. Members must make any point that they wish to make in connection with their Amendments.
§ Miss Hornsby-Smith
During the Standing Committee debates the Government promised to consider again whether the provisions of this subsection could be improved. We have examined with great care the arguments put forward bath by hon. Members in this House and in another place. It is clear, I think, that there is general agreement that, so far as possible, we wish to close the gap in the law to which attention was drawn so specifically by the Hurst Committee. We want, so far as we are able, to provide a form of words which will enable the court to be put in possession of all the relevant facts and then reach a conclusion which will not do violence to the natural rights of parents which are not extinguished by failings or shortcomings, and, at the same time, not do damage to the child's prospect of a happy and contented life.
Fortunately, the number of occasions on which the courts will have to exercise discretion in this way will be limited, but they are important for a particular class of child whose parents, while not criminally abandoning it or criminally neglecting it, have, to all intents and purposes, abandoned it and taken no notice or care of the child or any interest in its upbringing or welfare. In many cases, it will be perfectly clear to the judges, after having the evidence, what the right course in specific instances is. We have had the evidence and opinion of the Hurst Committee that the courts feel themselves bound by the narrower and tighter definition which applies under the existing law.
It is the task of Parliament to ensure that the form of words enacted does not unwittingly debar the courts from taking a course which, on all the evidence, they 859 believe to be right and proper. We considered the problem again very fully and in the light of the probable circumstances in which it would fall to the courts to exercise this discretion. We do not withdraw from the substance of the views which have hitherto been voiced in the House and in another place, but we recognise that the existing form of words has caused anxiety about its application or interpretation.
We do not claim even that the Amendment is perfect. This Clause gave rise to varying suggestions in Committee here and in another place, and we feel that this is the best compromise solution, to put it in that way, which can be reached. We are satisfied that it goes as far as we can without upsetting the balance between the rights of natural parents who have not abjectly failed to accept their responsibilities and duties and the need to provide for the care, welfare and future happiness of the child.
The matter has been discussed and debated for a long time. I know that there are many variations of view, with the same principle in mind. I hope that hon. Members will feel that, in putting down this Amendment, we have done our best to meet the conflicting views and bring about a balance which will leave it to the judge to make his decision on the evidence he has but which will give him the additional power to deal with that small class of case in regard to which, we understand from various judgments in the past, the courts have felt themselves inhibited.
§ Mr. Kenneth Younger (Grimsby)
My right hon. and hon. Friends are very grateful to the hon. Lady the Joint Under-Secretary of State for the great trouble she has obviously taken over this matter and for the considerable step she has made in coming towards the views which were expressed both in our proceedings in Committee and in another place. In Committee, I myself referred to the possibility that one might find a solution by taking out the words which the hon. Lady is now proposing to take out without replacing them by the words, to which we were always rather attached, relating to the welfare of the child. In adopting the course she has, she has come a considerable way towards meeting our wishes.
The issue has always been posed in the form of it being an attempt to keep a 860 balance between the conflicting interests of parent and child. Speaking for myself, one of the things which made me rather obstinate about it, was that, in another place, the Lord Chancellor, whether intentionally or not, seemed to pose the issue in a way which made the antagonism between these interests rather sharper than, perhaps, it is. I do not believe that, in substance, there is as much between those who support the two sides of the argument as sometimes appears.
If I may repeat it, the thing which has worried us is that, although it is provided by, I think, Section 5 of the principal Act that the court must take account of the welfare of the infant before making an adoption order, nevertheless, with the law as it stands, it seemed that there was a possibility that an application for adoption might already have failed before the judge addressed himself to this question of the welfare of the child, because there was no reference to this matter in the Section dealing with dispensing or not dispensing with consent. Because we felt that the phrase which the hon. Lady is now proposing to delete had a tendency to direct the mind of the court rather positively away from the welfare of the child, we were worried about that. Now that it is to come out, I think that we can accept this as a very reasonable solution. After all, this is one of the many matters within the subject-matter of the Bill in regard to which one must leave a great deal to the discretion of the courts. One must assume that the courts will be reasonable about these things. Therefore, my hon. Friends and I are prepared to accept gratefully the hon. Lady's proposal, and we do not propose to move our Amendment.
§ Mr. Page
Clause 18, subsection (3) is bad, and it will be made a hundred times worse by leaving out the words which my hon. Friend the Joint Under-Secretary of State now wishes to leave out. These words have been supported throughout our consideration of the Bill until this very late stage. They form part of the whole structure of the subsection. As the House knows, the subsection adds the case in which the court can dispense with the consent of the parent.
As it stands, the court may dispense with the consent of the parent if three things are shown: first, that the parent 861 has failed to carry out the obligations of a parent, second, if he has done so without reasonable cause, and third, as the Clause now stands, if it is unlikely that he will fulfil his obligations in the future. This third condition is to be deleted if the Amendment is accepted. The court, in considering whether it will dispense with the parent's consent, will consider only the past, and not consider what the parent may hope and honestly believe he can do in the future.
My opposition to this provision has been root and branch throughout. Therefore, I will endeavour to contain my remarks on the Amendment to the Amendment alone and hope that, perhaps, I shall catch your eye, Mr. Speaker, at a later stage to put once again the arguments against the whole Clause. My arguments against the Amendment are that, without these words in the subsection, all we are doing is to penalise the parent for past conduct. All the court is required to look at, if the Amendment is accepted is the question, "Has the parent carried out the obligations of a parent in the past?"
We must remember that the Clause will apply not only to adoption orders in the proper sense of the term, but also to provisional adoption orders for adoption abroad and to cases concerned with secrecy in adoption, that is to say, when the parent does not know who the adopters are. It will apply also to an infant parent. It will dispense with consent in those cases, and, it seems to me, it will disregard entirely the rights of the parent and put in their place an obligation on the court to say whether a parent has, in the past, been a good parent or a bad parent.
I am sure that the general public looks upon the adoption law as the instrument through which the State considers whether it is right that, in any particular case, a child's family should be changed between consenting parties. I do not think that people normally look upon adoption as a means of forcing a parent to give up a child. It is true that, under the existing law, there are cases in which a parent can be forced to give up a child, but they are cases in which a parent has done harm to a child because of abandonment, neglect and persistent ill-treatment—all cases in which the child has obviously suffered some injury.
862 Under the Clause, if amended, we are not considering at all whether the child has been harmed by what the parent has done. We are asking the court to decide that the parent shall be deprived of the child merely because of failure to observe the obligations of a parent.
§ Mrs. L. Jeger
Surely, there is some misunderstanding here. As I read it, the Clause says that the court may, in certain circumstances, dispense with the consent of the parent, not that the court shall dispense with it.
§ Mr. Page
I am obliged to the hon. Lady, but, of course, she will realise that, as a result of going to the court, that discretion removes the right of the parent to prevent the court making such an order. It is true that it does not oblige the court to make an order even though the court may find that the obligations of the parent have not been fulfilled; but it prevents a parent from objecting to an adoption order being made.
I trust that the House will realise the finality and irrevocability of an adoption order. It implies a complete change in the status of the child, a breach of the family rights, and so on, which can never be set aside in the future.
Many of these cases in which there is difficulty about the consent of the parent come before the court when an unmarried mother is involved. An unmarried mother may have her child with her for, perhaps, six weeks, and then a placing order is arranged through an adoption society. Under the Clause, if amended, after some further weeks or months or, even, perhaps, a year, the prospective adopter with whom the child has been placed can go to the court and say, "This mother has not carried out the obligations of a parent for some months." Even if the mother comes before the court and says, "I have not carried out the obligations of a parent; I have left the child in this perfectly good home where it has been very well looked after, because I was ashamed of what had happened, but now I am prepared to carry out my parental duties," that would be no answer if the Amendment is carried.
If we accept the Amendment, I am sure that we are not realising the emotional difficulties in cases where the parent is perhaps obstinate over consent. 863 It is not only the mother who has parental rights; the father has parental rights too. We shall be depriving them of those rights and looking solely to the welfare of the child.
Of course, it is right that we should look to the welfare of the child; but is not there some danger in looking only to the material welfare of the child? It may be that in many instances a child will have a better standard of life in the home of the adopter. But are we for that reason to ask the court to say that because the real parent has failed in the past that parent is not to have another opportunity in the future, and that the court is not obliged to consider whether that parent will look after the child in future, but can dispense with consent without any regard to the parental rights of the parent? I, for one, hope that the Amendment will be rejected.
§ Amendment agreed to.