ADOPTION ORDERS (Hansard, 28 October 1975)

§ Dr. Owen
I beg to move Amendment No. 2, in page 6, line 1, leave out paragraph (b).
The amendment deletes the provision that would have prevented any duty to pay maintenance arising from an agreement made by a person at a time when he was not liable to maintain a child from being extinguished when the child is adopted.
The Committee was concerned that the Bill, as drafted, did not provide for such a duty to be extinguished, and thought it unfair to insist that a maintenance agreement made voluntarily by a relative or friend should continue when the child was adopted. I agreed to examine the matter, and I hope that the House feels that I have met the point.

§ Mr. McElhone
I beg to move Amendment No. 182, in page 6, line 6, at end insert: '(5A) An adoption order shall not be made in Scotland in relation to a child who is a minor unless with the consent of the minor; except that where the court is satisfied that the minor is incapable of giving his consent to the making of the order, it may dispense with that consent.'. The purpose of this amendment is to secure the retention in the law on adopttion, as it is to apply in Scotland under the Children Bill, of provisions at present contained in Section 4 of the Adoption Act 1958 regarding the right of children who are minors under Scots law to give or refuse consent to their being adopted. These provisions were omitted from the Bill as originally drafted for reasons I shall explain.
The amendments also reintroduce the provisions at present contained in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 relating to the position of a minor who is incapable of giving consent. It is necessary to retain the existing powers of the court to dispense with a minor's consent where the infant who is the subject of an adoption application is incapable of giving consent.
Section 4(1) of the 1958 Act provides that an adoption order shall not be made 1448 in Scotland in respect of an infant who is a minor except with the consent of the infant. Scots law differentiates, in a way which the law in England does not, between the status of "pupil"—that is, girls under 12 years of age and boys under 14—and "minor", namely, girls of 12 years or over, boys of 14 or over, up to 18. The provisions regarding the consent of minors to their adoption have existed since 1930, when the first legislation concerning adoption in Scotland was enacted.
In associating Scotland with the provisions in Part I of the Bill relating to adoption, it has clearly been necessary to do everything possible to highlight the duty of the court in Scottish adoption proceedings, no less than proceedings elsewhere, to promote the welfare of the child in regard to any decisions relating to his adoption. Thus the provisions of Clause 3 in relation to the court's welfare duty extend fully to Scotland and the court will be required to ascertain the wishes and feelings of the child having regard to his age and understanding, and to give due consideration to them". It has been the wish of Scottish Ministers to avoid, if possible, detracting from these most important provisions, by requiring the court to follow different steps in dealing with a proposal to adopt an older child. A particular concern has been the need to avoid overlaying the procedure for assessing the child's wishes, which may change, with a formal system of consents. Another worry has been the fact that psychological and chronological ages will not always coincide, so that a dividing line based on 12th and 14th birthdays may turn out to be arbitrary in practice.
It has become apparent, however, that the initial decision not to continue the right of minor children to refuse consent to their adoption under the Bill has been seen as involving a loss of an existing right on the part of minor children in Scotland. This may be more a question of principle than of practice, since it is hard to envisage a court insisting on an older child's adoption against his or her wishes, bearing in mind the duty imposed by Clause 3 of the Bill. Nevertheless the Secretary of State has decided to restore the provisions to the Bill on receiving 1449 assurances from the Scottish Law Commission that the matter will receive further consideration in connection with its current study of the legal capacity of pupils and minors.
In conclusion I should like to express my thanks to the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton) for raising the matter with me. I assure him that I am most reluctant at any time to see rights removed where continuance is in keeping with the progress of the law more generally. I think that we have reached a sensible conclusion in this matter. I hope that the Law Commission's studies will point to a satisfactory solution in due course.

§ Lord James Douglas-Hamilton
It is I who should be thanking the Minister for recognising this right under Scottish law. I assure the Minister that his decision in this matter will be greatly welcomed by many persons north of the border.

§ Mr. Gordon Wilson
I am a Scottish lawyer and I should like to congratulate the Minister on safeguarding this particular tenet of Scottish law. Although in terms of the differential of age it does not seem to meet the provisions of the Sex Discrimination Bill, both sexes of those ages will be very pleased with the result.