DUTY TO PROMOTE WELFARE OF CHILD (Hansard, 28 October 1975)

§ Mr. Gordon Wilson
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Mr. Oscar Murton)
With this we shall take the following amendments:
No. 237, in page 2, line 38, leave out Clause 3.
No. 260, in Clause 3, page 2, line 38, at beginning insert: 'Subject to subsection 2 of this section'. No. 261, in page 2, line 40, after 'first', insert 'and paramount'.
No. 262, in page 3, line 3, at end insert: '(2) In reaching any decision relating to—

(a) dispensing with the consent of a parent or guardian of a child in accordance with section 12(2) or section 14(3), or

(b) the application of a former parent under section 16,

the court shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and 1436 feelings of the child regarding the decision and give due consideration to them having regard to his age and understanding'.

§ Mr. Wilson
I shall be brief because this matter was rehearsed at considerable length in Committee, where there was discussion about the meaning of the phrase "first consideration" and also on an amendment relating to the word "paramount".
All these are concerned with the interests of the child—

§ Mr. Wilson
I have been advised by a professor of law that on the existing wording there could be a chance of its being misconstrued by the courts. There was a discussion earlier this evening about the effect of a decision taken by the court of session on a stated case relating to the right of reporters to appear in the sheriff courts. There is, according to the advice and guidance that I have been given, a danger that this could very well happen in the present instance. I have made it clear that this question has been gone into, and I have produced a form of words which I hope will help to clear up some of the weaknesses and poverty of draftsmanship in the present version.
1437 I ask the Minister to consider the amendment and to see whether it might not be an improvement on the present text.

§ Mr. Hooson
It was on an amendment moved by me, together with an amendment moved by the hon. Member for Wallasey (Mrs. Chalker), that the debate on this subject took place in Committee. To my mind, as I stated in Committee, Clause 3 is the heart and kernel of the Bill. Whereas the economic constraints prevent the ideal solutions from being implemented, many of the clauses in this Bill are based on hope rather than on expectation in many respects. The one thing this House can do is to lay down guiding principles for the courts, without interpreting such questions as those relating to the adoption of children.
In this country for centuries the blood tie was all-important. Until about 20 or 30 years ago it was regarded as so important that it overrode every other single consideration with regard to children, welfare, inheritance or anything else. We have moved a considerable way—so far, in fact, that the Houghton Committee recommended that the first consideration in adoption be given to the welfare of the child.
When the Government first introduced the Bill they dropped that form of wording, and it was replaced in the Lords as a result of an amendment moved by my noble Friend Lord Wigoder. As I said in Committee, I ran the risk of upsetting the apple cart and having the original wording introduced in place of the more liberal wording introduced in the House of Lords.
Nevertheless, I feel that it is very important that we in the House of Commons should insist that in this Bill we have the words that the "first and paramount" consideration in adoption is the welfare of the child. I say "first and paramount" because these words occur in the Guardianship of Minors Act 1971. Therefore, this phrase "first and paramount" has been interpreted by the courts and everybody knows what it means. It does not mean that the child's welfare is the overriding consideration or 1438 that it is numerically the first consideration either. It means that the scales are weighted in favour of the welfare of the child.
I speak as an adoptive parent. I have two adopted children and I know the anguish of going through the process of adoption from the adoptive parents' point of view.
There is, of course, the great problem of the natural mother surrendering the child. However, anyone who has studied this subject will agree that what matters in the long run is the long-term interests of the child.
In my view, the right wording to ensure that the courts follow this principle is that which spells out that the first and paramount consideration should be given to the welfare of the child, save in two specific instances which I set out in the amendment—where one is dispensing with consent, which is very important, and where there is revocation of consent within a given period by a natural parent who may have agreed initially. In those two instances the word "first" is sufficient to safeguard the welfare of the child.
We went into this matter at length in Committee, and for that reason I shall not detain the House now. But if this amendment is rejected, the House will fail to take this opportunity to put what we feel beyond peradventure—that it is the interests of the child which should be first and paramount. I say that because every lawyer to whom I have spoken, including members of the judiciary, has felt that there is ambiguity about the term "first consideration". It can be interpreted as meaning that it is the paramount consideration. It can be interpreted as meaning that it is the first to be considered numerically in deciding any issue arising in the adoptive process.
The mistake in the Bill is to take one touchstone for all circumstances. It is that the term "first consideration" covers all considerations arising under an adoption, whereas I believe that "first and paramount" should apply in all except the two considerations included in my amendment.

§ Dr. Owen
As the hon. and learned Member for Montgomery (Mr. Hooson) said, this clause has been argued about more than any other part of the Bill. I do not claim that it will satisfy everyone. However, I believe that in its present form it reaches about as great a consensus as possible, and that was the conclusion in Committee where we discussed the matter in detail.
I respect the hon. and learned Gentleman's views. He has been consistent and he has argued the same case all the way through. But, in view of what he said about the opinion of judges, it is worth recording that among the judiciary, after considerable discussion and some changes of view, the Lord Chancellor, the present President of the Family Division, Sir George Baker, and a past President, Lord Simon of Glaisdale, believe that this wording represents the best way round a very difficult problem.
I recommend strongly that we do not change the wording. It has received broad acceptance from people who will practise it as well as from the members of the legal profession who will have to deal with it. That is my judgment, and that was the judgment of the Committee. I recommend strongly that we stick to it.
On the specific matter raised by the hon. Member for Dundee, East (Mr. Wilson), Clause 3 refers to any decision relating to the adoption of a child. I think that he has in mind that certain decisions of the court could fall to be taken on matters of pure law—for example, whether the court has jurisdiction, the domicile of the parent, and so on. Such decisions may leave the court with no discretion to weigh the merits in terms of the child's welfare, and the hon. Gentleman's clause emphasises this point by referring to the making of an order.
I have consulted people about this, and there are precedents. In Scotland, Section 1 of the Guardianship of Infants Act 1925 has wording which is broadly similar. It mentions reaching any decision regarding the custody, education and upbringing of the child, and so on. The courts have applied similar provisions sensibly in the past. I have no reason to believe that 1440 they will not use the same sensible way of interpreting these words.
This is a provision affecting the whole of Great Britain, and I have looked at it from both sides with the assistance of Scottish legal advice and of English legal advice. I am satisfied that the point raised by the professor of law in Scotland, with which I was familiar, will not arise and that the courts are not unfamiliar with a situation such as this.
I am grateful to the hon. Member for Dundee, East for drawing attention to the matter. It is on the face of it an important point, but I do not think that the hon. Gentleman's fears are as justified as may have at first appeared. I hope that he will agree to withdraw the motion and I hope that the hon. and learned Member for Montgomery even granted the strength of his views, will accept that the House would be well advised to stick to the present wording.

§ Dr. Vaughan
It is no secret that many of us are very unhappy about the use of the words "first consideration". I have had a great deal of experience professionally in the divorce courts with discussions about custody. I know that "paramount" has a well-known connotation and has been regarded as a useful word.
We have become obsessed with finding one or two words to describe what is wanted—"paramount" or "first consideration". I agree with the Minister that "paramount" probably would have been a mistake. As the hon. and learned Member for Montgomery (Mr. Hooson) said, the phrase "first consideration" is open to confusion in that it could mean "first priority" or it could mean "first in time".
Clause 89 contains a list of definitions. It is a weakness of the Bill and a criticism of the Government that Clause 89 contains no definition of "first consideration". The inclusion of a defintion would have strengthened the Bill greatly and would have taken us off this hook. This is bound to cause us trouble. By "first consideration" do the Government mean "greatest weight" with a list of other factors to be taken into account?

§ Mr. Gordon Wilson
I do not accept the Minister of State's arguments. On the merits of the case, my proposed wording would impose a duty upon the court to be satisfied that in making or refusing an order the effect will be to safeguard and promote the welfare of the child throughout his childhood". 1442 That would have been a more convenient form of words.
I hope that the Minister is right. I do not propose to divide the House at this late hour, particularly as the matter has been ventilated at length. Therefore, I beg to ask leave to withdraw the motion.