Grand Committee Report of 11 July 2002

Official Report of the Grand Committee on the
  Adoption and Children Bill
  Thursday, 11th July 2002.
  Adoption and Children Bill

    The Committee met at four of the clock.
    [The Deputy Chairman of Committees (Lord Arnpthill) in the Chair.]
    Clause 48 [Applications for adoption]:
    Earl Howemoved Amendment No. 71:
    Page 29, line 41, after "a" insert "married"
    The noble Earl said: The amendment brings us to perhaps the most politically contentious issue in the Bill: whether unmarried and same-sex couples should be permitted by law to become adoptive parents.
    There are no two ways about this proposition—you are either for it or against it. That is not the same thing as saying that those who take one view have a closed mind about the other. I hope that noble Lords will not accuse me of that when I have completed my remarks.
    On these Benches, we have reached the conclusion that it is right to restrict the pool of potential adopting couples to those who are married. However, in arriving at that view, we do not in any way belittle the alternative case, which we recognise is advanced out of equally sincere conviction.
    The amendments I have tabled would reverse those carried in another place and would exclude unmarried and same-sex couples as adoptive parents. Why do we believe that these amendments are worthy of approval?
    Clause 44, on the suitability of adopters, does not say very much, but one thing it troubles to spell out is the need for stability and permanence in the relationship of an adopting couple. There is a risk in what I am about to say that I shall be accused of passing judgment on certain types of relationship. I ask the Committee to accept that I am not doing so.
    If we believe that stability and permanence are vital for the well-being of children, the statistics on the durability of unmarried relationships are indisputable. A recent authoritative survey found that the average length of a cohabiting relationship is two years. Of course, people can, and do, live together for much longer than that, but 83 per cent of cohabitations break up within 10 years. Cohabitation is, by definition, a temporary relationship in which neither party is willing to make a permanent commitment. According to the Office for National Statistics, cohabiting couples are six and a half times more likely than married couples to split up after the arrival of their first child.
    The question that needs to be answered by proponents of the Bill in its current form is this. If we are looking to give permanence and stability to an
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    adopted child, why should we take that significant extra risk? There is no manual that tells a social worker or a court that this couple is less or more likely to split up than that one. As we were saying a week ago, you can ask as many questions as you like but, in the end, it comes down to a subjective judgment.
    The key point is that social work, in many of its manifestations, rests on the art of reducing risk. One of the ways in which risk can be reduced in adoption is by not placing an adoptive child in a family where there is already a child of the same age. Statistically speaking, to break that rule of thumb is asking for trouble.
    Similarly, the state should not consciously and deliberately place a child with a family in which there is a markedly higher chance of the parents splitting up. The best indicator of stability in a relationship is where a couple have made a public commitment to each other for life by getting married. If we look at unmarried couples who never marry—and these are Office for National Statistics figures—they show that the number of such couples who split up within five years of the arrival of their first child is 52 per cent. Of couples who cohabit and later marry, the figure is 25 per cent who split up within five years following the birth. Of those who were married at the time the child arrived, only 8 per cent. split up after five years. That is why I speak of a very significant extra risk.
    With gay relationships the risks are even greater. The average length of a so-called "closed" gay relationship is 21 months. That is according to a study funded by the Department of Health. "Closed" in this context means that sexual fidelity had been maintained during the past month. Studies have been done on the levels of educational attainment among children of homosexual couples. Those studies show unequivocally that such children tend to do much worse than those of married parents. Children with lesbian or gay parents experience a much higher incidence of relationship problems with other people because of the knowledge of their parents homosexuality.
    It is an unfortunate fact that children can be very cruel to one another. So if we are looking at the issue from the point of view of children—and not just children, we should remind ourselves, but often very damaged, challenging and difficult children—I ask again why we should consciously expose children to those additional risks. To that the following may be said. If I believe, as I do, that lone individuals should continue to be able to adopt children, why on earth should I deny the partner of such an individual the opportunity to adopt as well? Why should two unmarried people or two homosexual people be debarred from adopting as a couple?
    There is a very powerful argument as to why. The law of property as it relates to marriage is well established. If a married couple decides to get divorced it is for the matrimonial court to decide how the assets of the couple should be divided. In that process the children's welfare is protected to the extent that a court will usually decide on a division of property that ensures that children of the marriage will be housed and supported. Children of unmarried couples do not

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    enjoy the same protection. Other than for the shared house, a cohabitee has no legal right to sue for an order to share the other partner's financial assets. Until such time as we invent a form of legal partnership that mirrors this legal aspect of marriage, children of cohabiting partners will be disadvantaged.
    I agree that there will always be children born out of wedlock and that many unmarried couples are admirable parents. But I ask again, why consciously and deliberately expose adopted children to this additional hazard when there is absolutely no need for us to do so?
    There is no need because there is no shortage of married couples who would like to adopt. For a number of years we have had a system that frustrates the wishes of such couples to become adoptive parents. It frustrates their wishes by erecting hurdles of various kinds that put many couples off before they have properly begun. One of those hurdles is the absence of adoption support. We hope that this Bill will rectify that particular omission. So we should not imagine that a shortage of potential married adopters somehow obliges us to cast the net more widely. There is no such shortage.
    These amendments are about avoiding unnecessary risk for children. Children who are looked after are already the product of broken relationships. If we know, as we do, the risks of breakdown in unmarried and same-sex relationships, we surely cannot look ourselves in the mirror as we read Clause 1 and argue that, by placing a child with an unmarried couple, we are doing our best for that child's welfare throughout his life. We cannot argue that. If we do, we are allowing ourselves to entertain the notion that the needs of children are not paramount after all. I beg to move.
    4.15 p.m.
    Baroness Gould of Potternewton: It is with regret that I feel that I must stand up and oppose the noble Earl. Lord Howe. I hope that, just as I appreciated the sincerity of his comments, he will understand the sincerity of those who disagree with him, and appreciate that we do have the welfare of the child at heart and can look in the mirror and say of Clause 1, "Yes, we have got it right".
    Many noble Lords present today, although not all, attended out sitting last Thursday. It is perhaps a pity that not everyone attended the whole of that debate, which was a very important and thoughtful discussion on the criteria that should be in place to provide an adoptive child with a loving and caring home. Those criteria should be based not on whether adopters are married, but on their ability to provide stability and permanence for a child. That is what this debate is about for me. It is about the vulnerable child to whom the noble Earl, Lord Howe, referred. I hope that we shall concentrate on that.
    The noble Earl, Lord Howe, referred to cohabiting couples splitting up after two years. He has clearly been reading a slightly different article from the one I read at the weekend, which said that cohabiting
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    couples tend to get married after two years. That puts rather a different emphasis on his point. The question is how best to find stable and permanent homes for the maximum number of children currently in care. The only way is by extending the pool. I will come back to the points made by the noble Earl, Lord Howe, about that not being necessary.
    If we accept the fundamental premise of the Bill that the welfare of the child is paramount, we have positively to do something for the 14,000 children who have been in care continuously for more than five years. We have to do something for the 5,000 children nationwide who are waiting for a suitable adoptive family. We have to think about the large number of boys aged between five and 10 whom nobody has suggested that they are prepared to adopt. We have to think about the children who come out of care with poor educational qualifications and those who are likely to be homeless for longer than other children. That is why we have to extend the pool. Of course we have to make sure that all suitable adopters, married or unmarried, have to qualify under the most stringent criteria to be applied by the agencies, social workers and courts.
    I agreed with the point made by the noble Baroness, Lady Young, on Second Reading, and I am sorry that she cannot be with us today. The noble Earl, Lord Howe, reiterated some of the attitudes of social workers and the need to reduce some of the bureaucratic barriers. That is necessary, but it would only marginally extend the pool. There is no evidence that the pool would be substantially increased—and we need a substantial increase.
    We have to look not only at the obstacles that are in place, but also at some of the current anomalies that tell against the interest of the child. As we have previously discussed, a cohabiting or same-sex couple can adopt, but only one of the partners can be the legal parent. The noble Earl, Lord Howe, explained why he felt it was important to keep the possibility of adoption for single people. I want to look at the situation from the eyes of a child living in a loving and stable environment, but without the added security of having two parents. Research by MORI shows that 41 per cent of unmarried couples would adopt, but only 6 per cent do so because only one of them can be the legal guardian. Surely that is not a good environment to bring a child up where one of the partners is the legal guardian and the other can have no say about the responsibilities for that child.
    The situation is even more anomalous for unmarried foster carers who are jointly assessed and found to be suitable to foster a child with joint responsibility and who then find, if they wish to adopt, that only one parent can do so. A child who has been part of a loving family for a number of years with two parents can suddenly find himself with only one legal parent because they want to make a permanent home for him. That cannot be right for the child or in their interests. It must have destabilising psychological effects. Nor can it be in the interests of the family. One

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    can imagine the conflicts that could occur in a family in those circumstances. That is a farcical situation and it is the child who ultimately loses out.
    I listened with interest to the question asked by the noble Earl, Lord Howe, about matrimonial property. Not everybody owns property, so we are not talking about the entire married population in that respect. Also, many cohabiting couples come to agreements about the property and their resources in case they split up. The noble Earl did not mention that, but merely implied that they just split up, disappear and cause chaos. That is completely untrue.
    The Bill as it stands provides a necessary guarantee of the child's legal right of relationships with both parents and provides the security of two legally recognised parents. Under the current provisions, if the one legal parent dies or becomes incapacitated, does the child who has lived with those people for a long time have to go back into care? Having had a loving, stable relationship with two people whom he loves dearly, the child loses one of them because they have died then has to leave the other one and go back into care, losing his permanent home altogether. What is the effect of that on the child? It goes completely against their interests. I find it very difficult to comprehend how anybody can accept such a devastating trauma on the child and the possible consequences for the rest of its life.
    The Bill provides legal grounds for either parent or both to provide consent for medical care, to make education, healthcare and other important day-to-day decisions on behalf of the child—to make collective decisions as a family should. While there is only one person who has that legal responsibility, those collective decisions are not being made, which is not good for family life.
    A number of points were raised on Second Reading about things such as possible bullying in the school playground and the possible psychological problems that can develop from that. I would like to know where some of the evidence referred to earlier by the noble Earl, Lord Howe, came from. I do not know of evidence to support that claim. We know that many cohabiting couples have children at school. Are they bullied in the playground because their parents are cohabiting? Do the children know the parents are not married? I find those sort of arguments difficult to cope with.
    Another argument which has been put to me in the last few days is the question of the child's name—what will the child be called? Many children now do not necessarily bear their parents' name. That is quite normal. I have a nephew who is married with two children. He and his wife decided that one child would take his name and one child would take her name. Many young couples are taking that sort of stance. Therefore, the argument about names is completely irrelevant.
    I could respond to some of the other points that were made on Second Reading about certain effects on children and their future gender behaviour, but perhaps I shall come back to those if they are raised again.
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    The choice for me is simple: is it not better and right that a child should have constancy and security and the opportunity of a real home than to remain in care? The amendments that we have before us will ensure the second option and I am not prepared to accept that.
    Lady Saltoun of Abernethy: I have great sympathy with the amendment of the noble Earl, Lord Howe, and my heart in some ways lies with it. However, I do not believe that I can go along with it. I do not believe that adoption by an unmarried couple or a homosexual couple is in any way the optimum. However, the alternative to adoption in the case of a child who has been in care is so infinitely worse than adoption into a home which is less than ideal that I believe that the risk is justified even if it results in only a handful of children being adopted who otherwise would remain in care.
    We hear endless conflicting evidence as to the effects on children of adoption by unmarried and homosexual couples and it is very difficult to sort out what is right and what is not. However, as far as a child in care is concerned, even a much less than ideal family is preferable to remaining in care, which, as I have said before, is one of the worst fates that can happen to any child.
    I would like some indication that, where other considerations are equal, a married couple will be preferred to an unmarried or homosexual one.
    The noble Earl has raised the question of how property would pass in the case of an unmarried couple. The noble Baroness, Lady Gould, pointed out that a legal arrangement could be made where property is involved. However, I do not know whether a couple who have no legal status as a couple can, as an entity, be parties to a legal process such as adoption. I am not a lawyer. Legal advice needs to be considered over this.
    Finally, I entirely agree with the noble Baroness about names. At the age of 16, my eldest daughter changed her name from Ramsay to Fraser because she was going to be the heir to the chiefship of the Frasers. When her son was born, he was called Fraser, not Nicolson, for exactly the same reason. That has never been any problem to anybody.
    Baroness Thomas of Walliswood: That is a lovely note to try to follow. The noble Earl, Lord Howe, put the situation before us very clearly. I agree with him that one either agrees or disagrees with these amendments. I do not agree with them. The Government have already announced their intention of having a free vote for their supporters on these issues. I suspect that there will be a division of opinion among all the parties and groups. We have to deal with that as best we can.
    I support the Government's approach in the Bill. I also support the view of the noble Baroness, Lady Gould, that there is a lack of couples willing to adopt. The noble Baroness brought this out clearly by rehearsing the figures. I will not follow that through. Although the general figures are difficult to analyse, the General Register Office seems to suggest that the

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    number of children adopted fell between 1997 and 1998 and then rose quite slowly and has still not reached the 1997 level.
    That does not suggest that there are many parents desperately trying to adopt difficult children with serious emotional, psychological or physical difficulties—or sometimes all three, because these things seem to go together. We have to remember that those are the kinds of children that we are trying to place in adoption because we know that their chances of turning out to be reasonable citizens are so much better in a family than they are in a home.
    We must be careful before we say that certain sorts of families are not good enough to undertake this work, which is so important to the children and to society as a whole. Of course, all couples will get the same rigorous assessment of their stability and their ability to provide safe and loving care.
    When the noble Lord, Lord Campbell of Alloway, spoke to Amendment No. 7 at a previous sitting, he suggested a reference in the Bill to the rigorous assessment that needs to be carried out on all couples. I know that the Government do not like doing this, but there are occasions when it is valuable to put a point of this sort on the face of the Bill—and well up in the Bill—so that people can see the connection between the interests of the child and the rigorous assessment of the couple. Therefore, I ask the Government to think again on that issue. It could make quite a difference. Indeed, the knowledge that this rigorous assessment will take place would be a reassurance to everyone.
    Much has been said and written about the relative stability of married and unmarried couples. Some of these statistics fall into that famous definition whereby you end up with "Damned Lies and Statistics", or whatever it is. It is terribly difficult if you take, say, two or perhaps three years, because that does not tell us about those couples, both married and unmarried, whose relationships survive for longer. That is what this rigorous assessment will be considering. Those conducting the assessment will not say, "We're placing a five year old", and then ask, "Will the couple still be together when the child is 10?" No. They will say, "We're placing a five year-old"—perhaps a difficult five year-old—"one who has already been rejected from nursery school as being totally uncontrollable, and we are wondering whether this couple will still be together in 15 years?" That is the important factor for the child. It is a different set of statistics.
    I am not sure that we have a statistical base for judging the stability of married and unmarried couples where a child has been adopted. Perhaps the Minister can tell us whether such statistics exist, because I want to make the point that adoption is not at all the same as having a child in the normal course of your life. Couples have their own children for a number of different reasons, for example: because they are married and it is the natural thing to do; because they have decided—married or unmarried—that they want to have a child, and now is the time to have it; because
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    one member of a couple has cheated on the other member; or perhaps by way of a mistake. There are all sorts of reasons, but they are all private reasons.
    However, adopting a child is not a private decision. It is a decision taken by two people in public. It is a public commitment that is tested by the system of assessment: you take on someone else's child and love and care for it as though it were your own. To me, that is a very admirable thing to wish to do. If there are couples who do not fall into the traditional definition of a "married couple" who are willing and able to do just that, it seems quite wrong that we should reject them for such a reason. I do not wish to say any more because no doubt other people will put forward more statistically-based and accurate reasons. I just wanted to put it into the human context.
    4.30 p.m.
    Earl Russell: I should like to make three prefacory comments before addressing the arguments advanced by the noble Earl, Lord Howe. The first, with which I hope all the Committee will agree, is to regret very much the absence of the noble Baroness, Lady Young, and to wish her all good health from us all.
    Noble Lords: Hear, hear!
    Earl RussellThe second is to offer to Members of the Committee the apologies of my noble friend Lady Barker, who is presently busy in the Chamber dealing with the Statement on pensions, but will be here later. The third is to say that I am in full agreement with the noble Lord, Lord Campbell of Alloway, that this issue should be resolved on the Floor of the House. However, as all parties seem to be stating their positions, it is probably best not to be left out of the debate.
    The noble Earl, Lord Howe, concentrated exclusively for much of his argument on one point; namely, the rate of splitting up among couples. I speak as the child of divorced parents, as everyone who reads the newspapers probably knows. It was not particularly easy, but the noble Earl is making an enormous assumption that splitting up is the only, or even necessarily the worst, evil that can happen to a child.
    My parents were happily married for many years and gave me a good and loving home from which I believe I benefited. Then came the earthquake. Twelve year-olds are notoriously egocentric, but even as an egocentric 12 year-old I was not so selfish as to wish them to stay together after that earthquake had taken place. It was a cruelty of which even then I was incapable.
    All the statistics comparing the result of stable unions with the result of broken unions are in effect comparisons between happy people and unhappy people, since most couples who remain married are happy, though not all. When we say that happy people tend to produce happier children than unhappy people, we are not saying anything particularly startling. That is because we do not have a proper sample for our research. If we need to consider the

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    effect of splitting up, we need to compare unhappy couples who split up with unhappy couples who do not.
    It is very difficult to get the statistical base for proper academic comparison. Until we do, we should not talk with quite as much confidence as we regularly do about the argument that cohabitation is bad for children because the parents split up. Among my pupils I have encountered a good many psychological problems. Some of the worst have been from couples whose children suffered because the parents remained married when extremely unhappy and fought their battles by proxy through their children—Mummy's boy fighting Daddy's girl. I have seen that do no end of harm in a family. We should therefore approach this with a little more becoming uncertainty.
    I also read with interest a letter published in Community Care on 24th May this year, which said that the sample which argued that cohabiting couples split up more easily was considerably distorted by a small number of people who were very rapid serial cohabiters on what I might describe as the Hollywood model. If those people were taken out of the statistics, the rate of break-up among cohabiting couples was not particularly different from that among the rest of the population.
    I speak here also on behalf of my two sisters-in-law, both of whom chose to cohabit rather than to marry. Having observed their relationships and the relationships of their children fairly closely over a long period, I cannot see the difference between the relationship they have had and the relationship that my wife and I, as a married couple, have had. It is in all respects, as far as I can see, the same thing.
    I was grateful to the noble Lady, Lady Saltoun of Abernethy, for making her point about the change to the name of Fraser. My father made me familiar with that concept when I was a child. Many of his friends had changed their name on marriage or by their parents' wills in order to inherit property. His favourite example was a couple where this had happened many times and they had ended up as Johnson-Thompson-Clatterby-Randall. I shall not forget that very easily.
    When the noble Earl, Lord Howe, talks about cruelty to children in the playground because their parents are not married, he is talking of a world that I do not recognise, except in the single case of gay couples, to which I shall return.
    Earl Howe: My remarks were in the context of gay couples, not unmarried couples.
    Earl Russell: In that case, the noble Earl is suffering from the case of John Stuart Mill's maxim of the inability of the unanalytic mind to recognise its own handiwork. A great many people—most of them supporters of this amendment—have strongly resisted the idea that gay life should be regarded as in any way equal to heterosexual life. If one puts that view over for long enough it is inevitable that some people will believe it. If they believe it, it is inevitable that in treating their school contemporaries they may react to
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    it and behave accordingly. They ought to think about whether they are bringing about the situation of which they complain and, if they mind the resulting situation, whether the best thing they could do might not be to try and change it.
    There has been a colossal change of culture on this issue. My younger son, to my great pleasure, is about to get married. They have decided they are going to buy the house first. They have just completed the deal and moved in last week. They are blissfully happy about it. They say that now they have moved in and have a house they are going to think about marriage. That is exactly the opposite way round from the way it used to be when I was young. This is a general change in society. If I were to talk to my pupils about it, they would not understand why anybody should insist on an amendment such as this. If the law gets out of line with public opinion, there is a point beyond which it becomes unenforceable.
    We have a question about the protection of property of unmarried couples. There is such a thing as a prenuptial agreement, which California has made famous. There is also a Bill for civil partnerships, standing in the name of my noble friend Lord Lester of Herne Hill, which I believe is still formally before this House during this Session. Most of the answers to that question are in that Bill. If people have any different answers to it I am sure they will be considered. Among reasonable people agreements can be reached.
    Baroness Seccombe: Is the noble Earl aware that the British Social Attitudes survey found that 84 per cent of the public are against homosexual men adopting children?
    Earl Russell: Is that perhaps the result of the amount of propaganda that has been put out to keep Section 28? If so, would it be a good idea to think about the effects that that propaganda is creating? That information can be used in more than one way.
    One should not treat being homosexual as if it were in some way contagious. After all, by definition all homosexual people are the children of heterosexual couples, so it is equally possible that the children of homosexual couples may turn out to be heterosexual. In any event, they deserve the right to choose. For the moment I will leave it at that.
    Baroness Howarth of Breckland: I am aware of the eloquence of the previous speeches. I want to try to avoid repeating points that I might have made which have been made much better by others. However, I want to repeat, from a different angle, some of the arguments about the evidence base of the statistics, because that is crucial to making a decision on evidence rather than on feeling. There is a huge amount of feeling in this debate.
    We do not have any true evidence-based statistics on whether adoptive families are more likely to break down. However, if we had that evidence, it is likely that the figure might be higher, because children in adoptive families can be much more difficult and are placed from very complex family backgrounds. I have

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    spoken with people who are working in this field. A post-adoptive service in the Midlands had a group of married mothers who were initially supported through their adoption with their partners. By the time they were working through to the end of the placement, they were applying as single people because their marriages had broken down—their partners having said that they choose between the children, to whom they had become committed under the placement, and themselves. However, it is not always a choice between one or the other. If one did not allow those people to continue with their adoption, the choice in that situation would be to remove children who had already made permanent relationships with one partner. I believe that there are real complications when looking at statistics, and when considering who is making adoptions.
    I reiterate the points made about the kind of families that we are counting, how we are counting them, and who is taking the evidence forward. I repeat: when this is all over, I hope that we continue to gather evidence. If I were wrong, I should like to take the evidence and base it in the future, so that we make the best placements for children. Placed as I am at the moment, taking evidence, if you like, from my practice and from the experience of others to whom I have spoken, it is my view that children need good, permanent family homes and that those permanent homes are not easy to find.
    Certainly, there are many waiting-lists for babies who do not have disadvantage and who are not disabled. Many families wish to adopt that sort of child. The children with whom I usually deal have often worked through a number of placements. They are highly disruptive, and often have psychological problems that require support. This is why we talk all the time about the need for post-adoption support, because many of these children will tax the families to the nth degree. In this, I bring no blame to those children. They have usually had extraordinarily difficult experiences. I am absolutely clear that, with their experiences, I would have been equally difficult to place in a home. Therefore, we do not have these ideal children for whom there are long waiting-lists.
    Most of all, these children need constancy, love, support and continuity. For that, they need the best families we can find. The problem is that they are often placed in these families, first, as adoptive children. They grow fond of their adoptive parents, some of whom might well be cohabiting families or single-sex families. I have personal experience of a youngster. She knew that people were concerned because she was living with a lesbian couple, but she became extremely fond of those two women. To have removed that child, therefore, would have meant taking away the only constant relationship that she had ever known. It was her wish that she should remain with the two people whom she recognised as her family.
    When one comes to decide on adoption, one may well have an adolescent who has had several placements but who has succeeded in a foster home where the family has decided to make a commitment
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    to that child, even though they are not what you might call a perfect, "married-with-a-licence" family; they are a different sort of family. There is a fantasy that social workers are going out and finding all these families that are not what we would call the "perfect" family. Life does not run like that. One is desperately trying to find that good, solid placement for a child who has had hardly any good, solid consistency in his or her life.
    Finally, I realise that there are other agendas, but I know that there is a sort of belief that, if these provisions go through, they will undermine the institution of marriage. I do not believe that to be true. In my view, despite other statistics, large numbers of people in this country continue to marry and often do so after having lived together for a considerable time. I had intended to raise the same statistic as was mentioned earlier; namely, that people do not necessarily split up after two years, or so. They often get married.
    So there is some confusion in people's minds. This part of the Bill will not
    undermine the institution of marriage. Opposing the provisions for that reason is to lose sight of children. We should listen to children in these situations and hear what they tell us. They do not want to lose the few relationships that they have managed to forge because of some dogma or principle that has nothing to do with their lives, their future and all that we can try to give them.
    Lady Saltoun of Abernethy: It seems to me that the Bill is not about propping up the institution of marriage, but about getting these wretched children out of care and into families.
    Baroness Blatch: I support my noble friend. Lord Howe, in his main claim, which was to restrict the pool of those who wish to adopt to married couples. Stability and permanence was the other thread of my noble friend's case. Like him, I believe that those are important issues. As my noble friend said, the statistics show there is a higher chance of break-up among unmarried couples. If people are unwilling to make a legal commitment to each other in marriage, the end result proves to be lack of security and an increasing chance of breakdown.
    I accept that everybody is speaking from a passionately held point of view, which I do not take away from anybody. One thing that unites us all is that there should be a suitable placement for a child who is to be adopted and, as far as possible, that placement should offer stability and security. The sheer evidence of the record that we have so far of both married couples and unmarried couples, whether heterosexual and/or same-sex simply does not argue the case for anything other than the amendment of my noble friend.
    Baroness Howells of St Davids: I have listened to the noble Baroness and suggest that hers is a very ethno-centric view. There are many stable cohabiting relationships in the Caribbean and here because of the

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    legacy of slavery, when black people were not allowed to marry each other. To have an ethno-centric view in a multi-racial society is very damaging.
    Baroness Blatch: I in no may meant to offend the noble Baroness or to make an ethno-centric point. I am not an expert in these matters and I can only use the ONS statistics. The vulnerability of such children who are available for adoption calls on us all to look positively for a placement that knowingly reduces the risk of future insecurity. The statistics provided by my noble friend Lord Howe, from the ONS report, bear that out.
    The noble Baroness, Lady Gould of Potternewton, rightly referred to cohabiting couples who tend to get married after two years. There should not be a problem with adopting children if they eventually make a commitment to marry.
    I am enormously grateful to the noble Earl, Lord Russell, for what he said about my noble friend Lady Young. We all wish to be associated with his wishes. I know that she is making some progress, but is still too weak to attend this Committee. Reference was made to my noble friend on the subject of removing
    barriers. One of the good things about the Bill is that it should go a long way to removing barriers to adoption. That will receive universal support around the House. However, my noble friend was referring not only to the bureaucratic barriers mentioned by the noble Baroness, Lady Gould, but to philosophical and prejudicial barriers and even to politically correct attitudes. The Minister rightly said on Second Reading that there are many married couples who would like to adopt children but the system stands in their way. Some 90 per cent of applicants are put off or rejected after inquiring. The Prime Minister's review found that,
    "As a general rule-of-thumb, 1-in-10 of initial enquiries would result in an approved adopter."
    So, a great many suitable people are lost in the process.
    The Prime Minister's review noted that responses to enquiries were "unfriendly, unsupportive or even insensitive". Vast numbers of married couples are being turned away on frivolous grounds; they are, for example, too rich, too fat, too tidy, too conventional, have too many books or go to church too often. As my noble friend Lord Astor of Hever said:
    "Many married couples would like to adopt. The problem is the delays that occur between each stage of the system. Worse still are the manifestly unjust and irrelevant recommendations on adopters' lifestyles that have been identified by the Government's Performance and Innovation Unit."—[Official Report, 10/06/02; co1.73.]
    This Bill will go a very long way towards resolving some of that.
    Those who support adoption by two parents—whether married, unmarried, heterosexual and/or same-sex couples—raise a number of issues. A married couple will have made a legal commitment to each other as well as to the child or the children that they adopt. Unmarried couples, heterosexual or same sex, will not even have made a legal commitment to each other. As I said earlier in response to the noble
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    Baroness, Lady Gould, if they make a legal commitment, heterosexual couples have no fear; they will be free to adopt. However, why should anyone expect them to have a stable and permanent commitment to the child?
    Earl Russell: Does the noble Baroness understand that some people may refrain from marriage simply because people are attempting to compel them to make a legal commitment?
    Baroness Blatch: Nobody is compelling them to make a legal commitment. However, in the interests of the child, we have a duty to follow the record of statistics—which I shall repeat in a moment—that couples who make a commitment to marriage offer a child greater stability and security. At the end of the day, that has to be our concern.
    Baroness Gould of Potternewton: The noble Baroness said that if the couple are married, they can adopt; but they cannot adopt just like that. They have to undergo the same rigid criteria as everyone else. We must get away from the idea that anybody can adopt just because they are married.
    Baroness Blatch: I absolutely agree. It does not preempt or say that just because they are married, they are suitable people. There is a rigorous process which I absolutely support. However, because of this amendment, we are talking about whether people seeking to adopt should be married or unmarried and whether we should discount, for the purposes of adoption, same-sex couples.
    In their survey of seven years in the lives of British families, Berthould and Gerhsuny concluded in the British Household Panel Survey that,
    "children born to cohabiting parents are much more likely to see their parents split up and much more likely to experience a period in a one-parent family, than children born within marriage".
    That is yet another survey. It goes on to make the point made by the noble Baroness, Lady Gould, on the issue of parents going on to marry. If they do, however, it is not a problem as long as they are suitable people to adopt.
    The statistics used by my noble friend Lord Howe should be repeated. After five years following the birth of a child, 52 per cent of couples who were cohabiting but never married had split up; 25 per cent who were cohabiting but later married had split up; but only 8 per cent of couples who married after five years had split up. The statistics speak for themselves.
    I should also refer to the anomaly in Clause 139 where it refers to married couples. The clause provides that the two adult adopters, other than a married couple, must not be related to each other. This gives rise to the following example. A brother and a sister cannot adopt, but the brother living with a gay lover could adopt. Two sisters could not adopt under the Bill, but the sister living with a lesbian lover could adopt. A mother and a daughter who have shared a house for 20 years cannot adopt, but two women living next door who happen to be lesbian lovers could adopt. Is that really what we expect from the Bill?

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    At the end of the day a placement should offer as far as possible long-term stability and security and, given all the evidence that we have from the Office for National Statistics in its survey of married and cohabiting couples with children, we know that a married couple offer the best possible chance of long-term stability and security. I support my noble friend Lord Howe.
    5 p.m.
    Lord Alli: Before the noble Baroness sits down, perhaps I may ask her a question. I approve of marriage, but I believe that it is destructive in the context of this debate to try to compete between married and unmarried couples and gay couples. Essentially, we have all agreed that this debate is about the welfare of children. What does the noble Baroness say to the point made by the noble Lady, Lady Saltoun of Abernethy, that we have a shortage of people who want to adopt and that living in institutional care can be the most horrific experience for children? Is she saying that she would never give an unmarried couple or a gay couple the opportunity to help a child in institutional care when there was no other couple available? Is that what the noble Baroness is saying?
    Baroness Blatch: One can believe whatever one wants to believe, but I simply do not believe that there is a dearth of married couples who wish to adopt. I simply do not believe that. We have already given a number of examples—I gave them in my speech just now and others have given them, and the record book is littered with them—of good, suitable, married people who wish to adopt but who find that they are thwarted by the system. It is my view, and I support it—
    Baroness Howarth of Breckland: Every time this point has been raised I have tried to tackle the issue. The Government have looked at the matter and a number of other people have looked at it. There is a huge amount of mythology but very little fact as regards people in a range of situations—fat, thin, smokers, non-smokers—who have been found unsuitable to be adoptive parents. Good assessment involves looking at quite different issues. It is a great pity that social workers are again blamed for making inappropriate assessments. They are sometimes faced with certain pressures within local panels, often in relation to the placement of black children. However, that matter has been tackled recently. I need to make the point yet again that it is erroneous to suggest that all these examples are valid when the evidence that I have shows that they are not.
    Baroness Blatch: I can only speak from experience. I have two very good friends who, after two and a half years of consideration, were deemed to be too old at 45 to adopt a child. Their children had passed through their teenage years and they were considered too old to adopt a child. That child had already been with foster parents, then with this family and then it was shunted on to foster parents yet again. I am sorry but I do not regard that as an acceptable experience for that child.
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    I return to the points raised by the noble Lord, Lord Alli, many of which I agree with. I believe that institutional care is something that we should do what we can to avoid. However, I do not believe that there is a dearth of married couples who wish to adopt. I believe that the Bill will go a long way to remove some of the barriers to suitable adoptive parents being able to adopt. I am simply referring to statistics. If we knowingly place a child in a situation where the risks of family break-up, instability or insecurity are much greater, it is not responsible to go down that road. I believe that it is better, as far as is possible, to place a child where there is the greatest chance of stability and security.
    The Earl of Listowel: I hesitate to come in at this point. We discussed the importance of marriage for children at great length two or three years ago. At that time I looked to see what might be learned from experience abroad. I noted that in one of the Scandinavian countries the incidence of unmarried couples separating was far lower than in our country. That suggests to me that in countries which support families better there is less break-down in families, whether the parents are married or unmarried.
    It seems very clear from the figures that marriage is an important resilience factor. It is not surprising that a couple who are prepared to make a legal commitment to one another will often offer a longer term and more stable relationship. As I say, marriage is an important resilience factor but it is not the only factor; there are other considerations to be borne in mind.
    Baroness Gibson of Market Rasen: I want to begin by saying that I respect the commitment of the noble Earl, Lord Howe, with regard to supporting adoption. I would certainly never accuse him of any kind of duplicity in this matter. I know that he has spoken sincerely. However, on this occasion I cannot agree with him.
    I want to bring in a slightly different point which I think is important in the context of this debate. I hope that others will agree. I am not going to quote surveys or statistics. I want to concentrate on what actually happens when an adoption is occurring. It has already been said that no one has a right to adopt, nor should they have. We have talked of the couples involved in adoption, married or unmarried, and we have talked of family. Here I want to say that a family is comprised of more than just the couple involved. I want to share with the Committee—as I did at Second Reading—my and my husband's experiences when our daughter and her husband adopted a child.
    I am pleased to say that we jumped through all the hurdles. Of course, my daughter and her husband were rigorously questioned, as they should be. They wanted to be parents and they wanted to look after a little human being. It is right that questions are asked. However, it is not just the couples themselves who are questioned but also some other members of the family. That included me, my current husband and my ex-husband. My ex-husband and I divorced when my

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    daughter was in her twenties. My ex-husband remarried and now lives in America; he has another family. He was also questioned about the process of adoption, what he felt about it and about our current relationships.
    I do not believe that we have talked about this matter before in this context. However, if we are talking about families and family support, it is important to share that experience with the Committee to show that it is not just the couple themselves who are questioned and have letters written to them by the adoption authorities but rather the family as a whole. I believe that the key to the whole of this issue is the word "family". Children should have the opportunity to grow up as part of a loving family. I refer not just to the adoptive parents but to the wider family. I understand the concerns in this area but I repeat that adoptions are not entered into lightly. Many years passed before my daughter and her husband decided to adopt. As I say, adoption is not entered into lightly. Those who seek to adopt are closely scrutinised by those whose responsibility it is to assess whether or not they are suitable to undertake that. Great care is taken in these matters, as it should be.
    I make these points because I am sure that, just as Married couples or a single person who seek to adopt are rigorously assessed, single-sex couples and their families would also be rigorously assessed. I believe that all children should have a loving family unit. That is why I cannot support the amendment.
    Lord Clement-Jones: Nearly all the points have been made today in a quite remarkable series of speeches. We have a clear division of opinion in the Committee. The noble Earl, Lord Howe, made his case in a forensic and balanced way although the temperature rose later in the debate. I characterise his approach as the risk management approach. That is appropriate for matters such as airline safety or financial services regulation but it tars all those in a particular category with the same brush. That is how I see him categorising all those unmarried couples because, statistically, they are eliminated from the potential pool of adoption. The same applies to gay couples. Although the statistics are by no means particularly well grounded, as some Members of the Committee have pointed out, they are, nevertheless, all tarred with the same brush on the grounds of risk management because of the possibility—not probability—that certain relationships will not survive for longer than a certain period of time. That is why they are eliminated from the pool of those couples appropriate to be even considered as suitable adopters.
    The second approach, which I make no bones about, is the balance of benefit approach. We are talking about whether individual children can benefit. We must set this against what I regard as being the rather pseudo-statistical approach that is being used, not only by the noble Earl, Lord Howe, but also by the noble Baroness, Lady Blatch. There will be an argument between us as to whether there really is a pool of unmarried couples and gay couples ready to take on the responsibilities of adoptive parents; or
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    whether, as a result of the more enlightened proposals in the current legislation, married couples will come forward in great numbers.
    However, that is not the point: the point is that these older children who are in care desperately need to be brought into adoptive families. Quite frankly, I do not want an experimental period where we have only married couples for a period of years, while we wait and see whether or not the pool comes forward. Quite honestly, I want to give those children the best possible chance from the day that this legislation is passed.
    A number of points have been made during the debate. I shall not trade with the noble Earl, Lord Howe, on all the issues that he raised. However, he made an interesting point on the property issue. He said that, except in the case of the house, there is no proper arrangement for resolving property issues for children. However, the house is most people's main asset. Most people do not have stocks and shares, and all sorts of other assets. Therefore, the issue of the house as between unmarried couples—and, indeed, as between gay couples—can he resolved, provided that one of them has, or both of them have, beneficial ownership.
    I fail to see the logic for using the property argument in these circumstances as an argument for saving that it is preferable for children to be adopted by one person, as opposed to an unmarried couple. Again, I fail to see the argument in life, but I certainly fail to see the argument even more when it conies to incapacity or death. Indeed, that point was made most powerfully by the noble Baroness, Lady Gould.
    The noble Earl, Lord Howe, referred to the evidence of problems in the playground. I do not know on what basis he put that forward. Similarly, I do not know where the evidence comes from. It seemed to me to be some kind of cultural issue that the noble Earl was positing. To use another term, we have something of the Heisenberg effect here. Obviously, observed behaviour will change over time. If we believe that it is right for unmarried couples and gay couples to be able to adopt, we should try to ensure that society recognises that fact. After all, we do not want young children running around playgrounds talking about nutters, loonies, and so on, in mental health terms, no more than we want people talking about gay people and unmarried couples in derogatory terms. We have a responsibility to make sure that we have the right culture in our playgrounds. We certainly do not use that as an excuse, or an argument, for not allowing adoption by unmarried or gay couples.
    Nowadays, the culture on surnames has entirely changed. In her inimitable way, the noble Lady, Lady Saltoun, made the case in a very aristocratic way. After all, my father had a different surname from my grandfather. My grandfather doubled the barrel of my father's surname. So, there we are, we all have family secrets that we can reveal in Committee between these four walls. I do not believe that my father felt any stigma in probably one of the toughest public schools in the country where Dr Arnold was rife in the 19th century. I do not think that it did him any harm. So that is certainly not an argument either.

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    All this is about suitability. The noble Lord, Lord Northbourne, in his humane way, put his finger on the point in the previous debate—it is about suitability. If we have arguments, let them be about suitability. Put "suitability" in either secondary or primary legislation, or in guidance, or in the assessment procedure which the Minister talked about at our previous sitting. Then we can really see what we are talking about. However, we should be utterly frank about this. Mr Andrew Lansley, in the Commons, put it rather well. He said that it is wrong of those who support marriage to use the adoption of children as bait.
    We should not be penalising those who do not wish to marry. If they do not wish to become married, that does not, ipso facto, eliminate them from the pool of those wishing to adopt. At least that is the argument on these Benches. It is highly circular to say that unmarried couples have not made a legal commitment to each other and are therefore unsuitable. That is begging the question of this debate. I very much hope that, on Report, we will make it utterly clear that the wording of the current provision is as we want it.
    5.15 p.m.
    Lord Adebowale: I hesitate to add to the eloquent contributions to this debate. For me, the argument was made very clear by the noble Earl, Lord Russell.
    In supporting the noble Lord, Lord Clement-Jones, I should say that—having sat and listened to those who supported the amendment of the noble Earl, Lord Howe—I find the use of statistics truly worrying. Earlier, the risk management approach very ably described. On that basis, and using statistics from the Office for National Statistics, I believe that it is very likely that social workers would not allow poor people to adopt. On the basis of the statistics on marriage and sustained partnerships among poor people, poor people would not be allowed to adopt.
    Let us also take the statistics on certain geographical areas of the country, where marriage fails more often than not because of poverty. Those people also would not be allowed to adopt. Let us consider certain professions. I am the chief executive of a charity. However, I am not sure that chief executives of charities have a brilliant track record on marital relations. So we would not be allowed to adopt either.
    I think that we are on a slippery slope if we take such a general, blanket approach to statistics in arguing a case. In some ways it hides a deeper and—with all due respect to the noble Earl, Lord Howe, and his supporters—somewhat sinister approach to this debate. We all agree—no one has disagreed—that this Bill is all about providing stable, loving, supportive families for children. That is not a problem. However, those who supported the noble Earl's amendments seem to have rushed over some unintended consequences.
    Two points in this debate have been rushed over. The first was the idea that some of the remarks made by the noble Baroness, Lady Blatch, were ethnocentric. Although I accept that they were not intended
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    to be ethno-centric, they were ethno-centric. If the amendment is passed, those remarks will not only remain ethno-centric; they will be enshrined in law. Similarly, I accept that the remarks of the noble Earl, Lord Howe, were not intended in any way—as he himself said—to denigrate those who are homosexual or homosexual couples. Unfortunately, there is an unintended consequence. If the amendment is passed, those people will be denigrated.
    As the noble Earl, Lord Russell, aptly said, the amendment connects the issue of homosexual couples and their status as stable relationships with the bullying of children in schools. I was brought up in Wakefield and, as a black pupil in a predominantly white school, was bullied at school. The argument, therefore, could be used against allowing black couples to adopt, as their children may well be the object of bullying.
    The arguments in favour of the amendment are weak. They have not dealt with the issue of unintended consequences. I can understand that some members of the public would like to live in a world where everyone was the same and everyone agreed that there was only one way of living. Although they think that such a world would be wonderfully smooth and acceptable for everyone, that is not the reality. If we do not accept the reality, we shall create a situation for children—I have seen it too often—in which their lives are blighted by the opinions of people whom they have never met. That is absolutely unacceptable. It is outrageous and inhumane.
    Baroness Masham of Ilton: Having seen so many young people become involved in crime after having been brought up in care, I feel that such outcomes might not happen if those young people had had the love and support of a home they could call their own. Sometimes the birth parent or parents do not want to place them for adoption. I ask the Committee what we can do about that. It is a very big problem. I am sure that I am right in saying that older and disabled children are the more difficult children to place. Can the Minister tell us the numbers of children currently awaiting adoption?
    I should add that I have two names—it is all very complicated—and that our two adopted children had yet another name. That caused no problem at all—it was just one of those things. But it is terribly important to have a home to call one's own.
    The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): This has been a quite remarkable and high-quality debate. I pay tribute to all noble Lords who have spoken. I join other noble Lords in saying how sorry I am that the noble Baroness, Lady Young, is not able to join us, and how much we look forward to her resuming her place when we come back to this issue at Report stage.
    We touch on a very sensitive matter on which each noble Lord will reach their own judgment. It is undoubtedly clear that our discussion this afternoon can only help in enabling noble Lords to make that

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    judgment. Although this issue of unmarried couples is important, I should like to place it in its proper context. We are now in our fifth day of Committee. What has united all noble Lords who have spoken in those sittings is the determination to see a much enhanced adoption service put in place. The noble Lady, Lady Saltoun, put that point very well indeed.
    We know that outcomes have not been good for children in care compared with children who have not been looked after by local authorities. Looked-after children have poor chances of leading successful settled lives when they leave the care system, and we know that adoption can provide a new start in life for many children. All too often adoption has been seen as a last resort for those children when it should have been considered as the first resort.
    Too often the adoption system has let children down. I readily acknowledge that council performance is too varied. In some councils, 10 per cent of looked-after children are adopted; in others, the figure is less than 2 per cent. I agree with the noble Baroness, Lady Blatch, that, overall, the system, including the courts, can be slow, cumbersome and unfair. The average time taken to adopt a looked after child is two years and nine months—an eternity in a child's eyes. That is why we have to change it and that is why we are all so hopeful that the passage of the Bill will lead to a dramatic change in the lives of so many young people.
    It is therefore important that we place this question of unmarried couples in its appropriate context, considering current practice. At the moment only married couples may adopt children jointly. Single people may adopt as individuals, regardless of their sexual orientation. That is the position under the Adoption Act 1976. Adoption by single people was accepted practice under the previous Government as much as under the present one.
    Some of those single people who adopt will be in a long-term, stable relationship, whether heterosexual or homosexual. If a person in such a relationship applies to adopt, the couple are currently assessed jointly. However, only one person may adopt the child. The other person may seek a residence order, but while the holder of a residence order may exercise parental responsibility, he or she does not become the child's legal parent.
    An interesting question was asked about how many children are currently adopted by unmarried couples. The simple answer, as with many questions in relation to statistics, is that we do not know because such adoptions are currently recorded as adoptions by single people. The BAAF adoption statistics project, which I am informed is a robust statistic analysis, found that 95 per cent of local authority adoptions in 1998-99 were by married couples. We do now know how many of the remaining 5 per cent of adopters were living on their own or as part of an unmarried couple, but we know that 43 per cent of single adopters who adopted during 1998-99 were already fostering the children, as opposed to only 11 per cent of the couples.
    Noble Lords will be aware that a free vote, at least on the Government side, on a Back-Bench amendment to allow unmarried couples, whether of the same sex or
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    the opposite sex, to apply to adopt children jointly was held on Report in another place on 16th May. Members of Parliament from all sides voted in favour of the change. What were the reasons for that? I suggest that it is based on experience of adoption practice over many years. It is essential that the adoption placement reflects the child's needs and best interests. Let me give an example in which the amendments made to the Bill in another place would surely come into play in the child's best interest. If a child has been cared for by an unmarried couple—for example, in a foster placement—it may be in the best interests of that child to remain with that couple permanently. However, under the current legal framework only one person may adopt the child in such circumstances.
    Our first objective surely is to improve security for the adopted child. I have already stated that if an unmarried couple applies to adopt, they are assessed as a couple, yet only one person may adopt the child. Arguably this denies the child the permanence and security of having two legal parents.
    The Government's second objective is to increase the number of vulnerable children who have the opportunity, through adoption, to grow up as part of a loving, stable and permanent family.
    Earl Russell: Perhaps I may ask the Minister a question for clarification. If a consent form needs to be signed, say, for a child to have an operation, is it only the legal adopter who can sign it? If that person is absent, can the operation not take place?
    5.30 p.m.
    Lord Hunt of Kings Heath: Yes, except that, if there is a residence order, the person who is party to the residence order also has parental responsibilities. However, residence orders are often time-limited and they certainly do not provide the stability of that person being regarded as a parent, although he or she may have parental responsibilities for a set time.
    A large range of evidence was given in support of the change in Standing Committee in another place. In a letter to all MPs on 12th March, the British Agency for Adoption and Fostering said that the amendment would improve the life chances of more children by widening the pool of potential adoptive parents and by enabling those children who are placed with unmarried couples to enjoy the security of a permanent legal relationship with both parents rather than with only one of them. The letter from BAAF to MPs was signed by many organisations, including the Law Society and the Family Law Bar Association.
    My department has also received correspondence from children expressing views about joint adoption by unmarried couples. One letter was sent by a child living with her natural parent and the natural parent's same-sex partner. This child was concerned that, should anything happen to her natural parent, she did not have the security of a legal relationship with her parent's partner and she might not be able to continue living with her.

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    It is noticeable that the wording of the amendment tabled in another place introduced a tailor-made definition of "couple", which would apply for the purposes of this Bill only. By avoiding terms such as "cohabiting" or "living as husband and wife", the new definition avoided any confusion with the position in existing legislation. This definition does not attempt to define the legal relationship between the two adults and therefore does not encroach on or pre-empt the wider work on civil partnerships being carried out across government. The noble Lord, Lord Clement-Jones, and the noble Earl, Lord Russell, are quite right to refer to the Private Member's Bill of the noble Lord, Lord Lester, which has been debated in your Lordships' House. In a sense, part of the answer to the issues on inheritance raised by the noble Earl, Lord Howe, must rest in this wider work that is currently taking place across government.
    Noble Lords have understandably raised questions about how certain we can be that only those who are suitable to adopt should be allowed to do so. The noble Lord, Lord Clement-Jones, particularly focused on suitability. As I said on other important amendments last week, nobody has a right to adopt. That is the position under existing legislation and under the Bill. It is the job of adoption agencies and the courts to decide whether a couple is suitable to adopt.
    We debated last week how such a decision would be made. I do not want to repeat everything I said, but it bears reiterating that for any couple to become adoptive parents they need to prove not only that they can provide a loving a stable family relationship for a child, but that their own relationship is sound and likely to be lasting.
    We have given a clear commitment to make regulations under Clause 44 to require adoption agencies to consider the stability and permanence of the relationship between a couple, whether they are married or unmarried, as part of the adopter assessment process. I said in Committee last Thursday that I would consider sympathetically whether the regulations should be considered under the affirmative procedure. We are undertaking a review to consider the range of criteria used for the assessment of potential adopters and the consistency of their application across the country.
    The Deputy Chairman of Committees (Lord Murton of Lindisfarne): The Division Bell has gone. We will adjourn for 10 minutes.
    [The Sitting was suspended for a Division in the House from 5.35 to 5.45 p.m.]
    Lord Hunt of Kings Heath: As I was saying, the key is an assessment of the couple applying to adopt. Clearly, the robustness of the adopter assessment process is a critical factor in ensuring that we have a robust system in place. As I explained last week, a home study over several months is part of the current adopter assessment process. A designated social
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    worker visits the prospective adopters at home to establish a detailed view of them, as well as any family members and other people living in their home.
    In addition, adoption agencies ask for confidential personal references about prospective adopters and personal referees are usually asked to comment on all aspects of the relationship between the prospective adopters, including the amount of time they spend together and the leisure and recreational activities they share.
    The feedback we receive from those who have gone through the process is that it is pretty tough and rigorous and sometimes people feel it can be over-intrusive. The noble Baroness, Lady Blatch, spoke about delays in the system. There are some delays that we need to eradicate. However, it is also a product of the fact that the system is very vigorous, robust and detailed in assessing whether people are suitable for adoption.
    We need to bear that in mind when we come to the issue of the outcomes for children of unmarried parents in comparison with those of married parents. Surely this must be seen in the context of the increase in the number of cohabiting couples in our society. In 1986, they accounted for 5 per cent of families. By 1998, that had risen to 14 per cent. In 2000, around 40 per cent of births were outside marriage, compared with 30 per cent in 1990.
    Some noble Lords have suggested that marriage should be accorded a special status among all the other important and valuable relationships that exist. From that, it is argued that placement with a married couple should, therefore, be the first choice of adoptive placement.
    The Government's position on marriage is quite clear. The Government support the institution of marriage. They recognise that marriage is a sure foundation for raising children, and remains the choice of the majority of people living in our country. However, we also recognise that not all children are born to parents who are married, and that many unmarried couples have stable relationships in which children are brought up exceedingly well.
    The Fostering Network put it right when it wrote to all noble Lords, saying:
    "Family life in Britain has changed dramatically since the last adoption legislation was produced and current legislation will probably be in place for at least another 25 years. More people will live in a relationship which is not confirmed by marriage and yet has all the components of it in terms of commitment to one another and the capacity to provide a home for children in need … The foster care service has provided a model. Unmarried couples and gay and lesbian carers have given children excellent care often for many years, until adulthood. These children have benefited from the love and care provided, and the security of the relationship. Many of the placements have been made of children with special needs who may not otherwise have benefited from family care had there been a need to wait for the perfect married couple to come forward."
    Surely that was the substance of the remarks made by the noble Baroness, Lady Thomas.
    When it comes to making individual judgments about a couple who have applied for adoption, the critical issue is how suitable that couple are to take on

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    parental responsibilities. Our starting point in considering this suggestion is that the adoptive placement of choice should reflect the needs and best interests of the child. In relation to unmarried couples, the noble Earl, Lord Howe, asked whether Clause 1 could really be said to apply. I say that it does.
    Established adoption agency practice shows that it can be in the best interests of some children to be placed with single adopters. Indeed, research has shown that girls who have been abused do particularly well when placed with single women. As I mentioned earlier, in some cases it may be in the best interests of the child to be adopted by an unmarried couple; for example, where a child is already being cared for by an unmarried couple, such as unmarried foster parents. Again, perhaps I may quote from the Fostering Network, which says:
    "From our experience of supporting a growing number of same sex couples we have noted a trend that suggests that these couples are more prepared to adopt 'harder to place' children and more open to support to make these placements work. This openness to support results in more successful placements for these children."
    We have discussed married life, and the importance of marriage as an institution. But let us be honest: some marriages may not provide a suitable environment in which to bring up children, just as some unmarried couples can be successful in providing a loving and stable family environment. That is why the adopter assessment process is important in ensuring that only those who are able to provide a secure home for a child are approved as prospective adopters.
    This is not a debate about the reasons why unmarried couples are unable to marry, or chose not to do so; it is a debate about increasing the number of vulnerable children who have the opportunity to grow up as part of a stable, loving and permanent family. It is the adopter assessment process, and, ultimately, the courts that will decide whether a couple are suitable to adopt. That process will provide the necessary safeguards in order to protect the child.
    Throughout my response I have laid a great deal of stress on the robustness of the adoption process. I know from comments that have been made today, particularly by the noble Baroness, Lady Blatch, and by other noble Lords during the passage of the Bill, that there is concern about current patchy provision of adoption support services. That is why Clause 3 places a new clear duty on local authorities to make arrangements to provide adoption support services.
    In relation to adoption services generally, I have already given a commitment to noble Lords that we will have a comprehensive performance assessment system for social services, which includes both in-year and end-year monitoring, including performance in relation to adoption. We have already agreed that from April 2003 voluntary adoption agencies will be inspected and registered by the National Care Standards Commission. Local authority adoption services will also be inspected by the commission. We can always intervene if a local authority fails to perform its functions adequately.
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    The noble Baroness, Lady Blatch, also mentioned political correctness. Although allegations have been made about political correctness and blanket bans, the PIU report found no evidence that such blanket bans exist. However, there is a perception in certain areas of the media that they do. Sometimes that is based on a misunderstanding of agency practice. For example, in placing a very young baby agencies would need to consider the age of the adoptive applicants with a view to them being able to cope with a child as it grew up. As I said on Second Reading, the figures for 1999 show that the average age for adoption couples was 37 years and eight months, that the average age for single adopters was 40 years and four months, and the maximum age in the sample was of a person of 59 years and one month. The Cabinet Office PIU report said that there was no evidence of blanket bans, although there is certainly a perception that they exist.
    I shall not deny that there have not been examples of thoroughly bad practice or insensitive approaches. I go back to the adopter assessment issues. I know that sometimes prospective adoptive parents have been concerned about the way they have been questioned, often because it is not explained to them why certain questions, which may be regarded as intrusive, are being asked. I do not deny that we need to do much to improve the performance of those social workers, but I never seek to knock social workers in general. It is all too easy to do.
    When one thinks about the awesome decisions that fairly junior staff in social service departments have to make, who of us would ignore the fact that those decisions are very hard? I would not defend bad practice among social workers, but I recognise that many of them work tremendously hard under great strain and do their very best. Of course we want them to do better. That is why we set up the General Social Care Council to make the profession of social work much better supported. We have extended the training period for social workers. I am confident that, with the development of an adoption service, with the clear standards we are laying down, with inspection by the National Care Standards Commission, with the work that we are doing to improve and boost the status of social workers and their professional qualifications, we will be able to ensure that the adoption assessment process will work effectively, and that, as far as you can ever be certain about a couple when it comes to couples being assessed, as much care as possible will be taken to assess those couples.
    At the end of the day, we will all make our own individual decisions on this matter. I believe that the case is very strong to accept the Bill as it now stands. The fact is that at the moment it is perfectly legal for adoption to be undertaken by single people who none the less are in stable relationships, whether of an opposite-sex nature or a same-sex nature. It is also clear that where such a single person is in smith a relationship the adopter assessment process will assess both people in that relationship, even though only one person can adopt. The logic of that argument is clear. We would provide greater stability for an adopted child in those circumstances by allowing both of the

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    parties to that couple to adopt. I am absolutely convinced that as a consequence we shall enable more young people to be adopted—often young people who in the current circumstances find it very difficult to find suitable adoptive parents. Of course we will debate this matter again on Report.
    6 p.m.
    Lord Campbell of Alloway: May I ask a question on that point? What is the score roughly? How many children are in care waiting for adoption? The information was not clear. How many prospective adopters, be they single or joint, are now wanting to adopt children? I am trying to get the size of the problem and I could not pick it up from the debate. I do not seek an answer now.
    Lord Hunt of Kings Heath: I can answer the first point raised by the noble Lord. The latest figures I have are from March 1999, when almost 3,000 adoptive placements were made. However, at the same time there were nearly 2,500 children waiting to be adopted with no adoptive family having been identified. I do not think that we have the statistics available with regard to the second point, but I will see if we do and will write to the noble Lord.
    I do not think that there is anything more I need to say. Clearly we will make up our own minds. I conclude by paying tribute once again to all Members of the Committee who have spoken in what has been a splendid debate.
    Earl Howe: I begin by echoing the Minister's final words; I agree that this has been an excellent debate. I do not intend to draw out our proceedings today, particularly as he indicated that we cannot bring the matter to a final conclusion today in the nature of the rules of Grand Committee. I hope that the Committee will forgive me if I do not address every single point that has been raised.
    I said earlier, and I repeat now, that I understand and respect the arguments on the other side. The slightly sad part for me is that, with the notable exception of the Minister, I have not heard much from those who have attacked me to demonstrate that the same applies in reverse. I have been called various things today—sinister, ethnocentric and inhumane. I shall, of course, reflect on those words. To the extent that my position is regarded as out of line with mainstream opinion, I would ask the Grand Committee to reflect on the following fact. The majority of European countries allow adoption only by married couples. Some countries, it is true, have legal partnership schemes but these specifically exclude joint adoption. Until recently the Government were of the same opinion as that which I was trying to advance earlier today. So I hope we can avoid too much talk that might suggest to those reading Hansard that I had taken up some kind of freakish position.
    Baroness Gould of Potternewton: I am sorry to interrupt but one or two Members of the Committee who spoke, including myself, recognised the noble
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    Earl's sincerity. I believe that he should correct the implication that, somehow or other, we all spoke as he implied.
    Earl Howe: I readily concede that and I am grateful to the noble Baroness. The point I was seeking to make was that I did not hear much in the way of accepting some of the points I was making. In fact, I do not believe that any of the points I made were accepted. I concede that my own sincerity was not in question and for that I am grateful.
    The noble Baroness, Lady Gould, picked me up on what I said about the bureaucratic barriers in the adoption process. She questioned the significance of those barriers and said that reducing them might have only a marginal effect on the number of adoptions. I would point out to her, however, that in the Prime Minister's review there was a finding that,
    "As a general rule of thumb, one in 10 of initial inquiries would result in an approved adopter".
    That statement suggests to me that there are many people who are willing to adopt—though not all of them may be suitable—who are somehow put off during the process.
    In the White Paper on adoption it is noticeable that there were no proposals to change the eligibility grounds for adoption. The White Paper listed the 10 most serious problems with children's services and adoption but a shortage of married couples to adopt was not even on the list. Again, therefore, I question those who say that we need to widen the pool for the reasons that the noble Baroness indicated.
    The noble Lady, Lady Saltoun, stated her view that adoption by an unmarried couple or a homosexual couple was not the optimum solution but that,nevertheless, she would be prepared to entertain it as an option. I note that she is not in her place but I make the point that, if the Bill is not amended back to its original state, there will be one obvious consequence: the law will not distinguish between types of union for the purposes of adoption. All types of union will be considered equally valid.
    From that will develop an approach to applicants wishing to become adopters based on those coming forward, rather than on the needs of the child. Supposing 30 couples needed to be assessed and let us suppose that 10 of those are unmarried and 20 are married. As all of those couples are seen to be equally valid, this may lead to the 10 unmarried couples being assessed alongside only 10 married couples, leaving the other 10 married couples to wait. That will lead to a disproportionate number of unmarried couples being assessed.
    Lord Alli: I do not understand the point.
    Earl Howe: The point is that married couples who, as the Minister said, are, generally speaking, in the majority among those who are coming forward to apply for adoption, may, nevertheless, be sidelined because it will be the legal duty of the adoption agency to consider all types of couple as equal for the purposes of assessment. Resources are limited and it may be that

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    they choose, therefore, to treat equally a group of 10 unmarried couples and a group of 10 married couples. That will skew what would otherwise be a bias in favour of married couples. That is my point.
    Lord Alli: I believe that I understand. If the resources available only allowed a certain number and there were 30 couples, 20 of whom were married and 10 of whom were same sex or unmarried couples, the noble Earl is suggesting that that would disadvantage the married couples.
    Earl Bowe: It is a very simple point that concerns me in the context of Clause 1. The noble Earl, Lord Russell, added to the brickbats hurled in my direction when he accused me of having an unanalytical mind. If that is so, I have to live with it. However, what I do not have is a prejudiced mind. Some of my best friends are unmarried couples. I have good friends who are gay and live together. The issue of whether certain lifestyles are intrinsically more or less worthy than others is an issue for another day. It is not the territory that I am on, or feel the need to be on. The issue that should occupy us throughout the debate is what is best for children. We are all agreed on that; we just do not agree on how to get there.
    As I have said, unmarried and gay people can already legally adopt a child. Therefore, those who believe that only married couples and lone individuals should be allowed to adopt a child cannot be accused of wanting to exclude unmarried or gay people from the adoption pool. I certainly do not wish to exclude such people.
    Earl Russell: I accept the logic of what the noble Earl says; namely, that this cannot be intended to exclude unmarried or gay people from the pool. However, is it meant to exclude couples from the pool? That is the obvious logic of what the noble Earl is saying.
    Earl Howe: Of course, but I do not want to rehearse the arguments that I went through earlier. I do not want to take up the Committee's time unnecessarily. That is indeed my position.
    Lord Clement-Jones: I am sorry to interrupt the noble Earl again, but I have reflected on his earlier point about the approach that could be adopted by an adoption agency. The more I think about it, the more extraordinary I find the point. The noble Earl was speculating on the fact that out of 30–20 married couples, and 10 unmarried couples—things would inevitably be balanced out by taking 10 of each. If no difference is made in the status of married or unmarried couples, and gay couples, why not use a chronological first-come, first-served approach? If resources are limited, those who apply to the adoption agency can be taken in the order in which they have applied.
    The noble Earl is erecting some kind of bureaucratic administrative model that is only one of many that could be adopted. It certainly does not prove his case—
    Earl Howe: Perhaps I may put the point more starkly. Does the noble Lord, Lord Clement-Jones,
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    believe that there should be no discrimination between married couples and unmarried couples when an adoption agency comes to assess? I take it from that exchange that he clearly believes that there should be no discrimination. But I wonder—
    The Earl of Listowel: I thank the noble Earl for giving way. Judging by what was said earlier, it is plain to me that it is desirable—
    Lord Hunt of Kings Heath: Could the noble Earl move closer to a microphone?
    The Earl of Listowel: Yes, of course. I thank the Minister for that invitation. As regards the procedures that will be set out in regulations for determining who is to adopt, or not to adopt, a child, would it be possible for such regulations to state that married couples would be preferred and that weight is likely to be given to the fact that a couple are married when reaching a decision? Alternatively, is that possibility completely ruled out by this current debate?
    Lord Hunt of Kings Heath: The Government would certainly rule that: out. It takes us back to the earlier argument about a hierarchy of acceptable relationships. The Government's view is that each couple has to be assessed on their own merits irrespective of whether they are married or unmarried, because there are many married people who would he wholly unsuitable to adopt. That is why they need to go through the same process.
    The other point is the issue of 30 people applying but only a few being able to be processed at any one time. I draw the attention of the Noble Earl, Lord Howe, to Section B of the National Adoption Standards for England which talks about the clear process that needs to be gone through and the clear written time scales for each stage. He raised the point about people having to wait in the context of whether gay or unmarried couples should be treated differently from married couples. The real issue in the prospective adopter process is how to speed up the process while not losing sight of the need for rigour at every stage within it.
    The standard published in the National Adoption Standards is aimed at doing that, so that we can avoid forcing people to have to wait unduly. We want to make information available to whoever applies to adopt about the time scales they can expect to apply to them throughout the adopter assessment process.
    6.15 p.m.
    The Earl of Listowel: Forgive me for being so slow in understanding this. To be quite clear, is it correct that no account will be taken of marriage as an important resilience factor in relationships? It will be one important resilience factor among many, as relationships between married couples are generally more likely to last. I know that we had this debate earlier. I should like to be quite clear that there will be a point in the process when the endurance of a

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    relationship is recognised to relate to the level of commitment demonstrated by married couples. Similarly, health is a factor to consider.
    Lord Hunt of Kings Heath: If the noble Earl, Lord Howe, will allow me, I shall respond to that. The general argument seems to be that there will be a more successful outcome if the couple is married, and that there should therefore be a hierarchy whereby married couples come top in every situation. I think that that is the logic of where we are going. However, it cannot be that way. There has to be an individual assessment of each couple. The issue in the assessment is the strength of that relationship, and the assessment as to whether that couple—
    Earl Russell: Is it fair to say that it does not strengthen the relationship to say that it lasts "till death do us part" if death be by murder?
    Lord Hunt of Kings Heath: Oh, my Lords!
    If a couple have been happily married, and that is apparent in the assessment process, that will of course be a strong recommendation to the adoption agency undertaking the assessment. It is strong ammunition to suggest that, among other factors, that couple will make jolly good adopter parents. However, one cannot then say that because married couples' outcomes are better overall, married couples should be given priority in every situation as against unmarried couples.
    Baroness Masham of Ilton: During this debate the question that has occurred to me is whether the wishes of the birth parent will be taken into consideration. For instance, she might want a certain religion, or she might want the parents to be married. Will that be taken into consideration?
    Lord Hunt of Kings Heath: One must be wary of allowing pre-set conditions. However, in most cases of adoption the birth parents will have given their consent. Where they have not given their consent and the final stage of an adoption order has been reached, the natural parents can ask for the leave of the court to make objections should they so wish. The Bill also describes the circumstances in which parental consent can be over-ridden in the interests of the child. However, we have to be very wary of going down the route of pre-set conditions which say that only one category of adopter parent will be admitted.
    Lord Campbell of Alloway: Can we get this absolutely plain before we go any further? Marriage is relevant for the purpose of assessment. Once you are assessed, it ceases to have relevance as part of a system of gradation. Is that the situation?
    Earl Howe: I thought that the Minister had very helpfully clarified the position in answer to the noble Earl, Lord Listowel. The simple fear I expressed was that the Bill as currently drafted will lead to a disproportionate number of unmarried couples being assessed. I am ready to be shot down on that, but I
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    have not actually heard a knock-down argument that does so. Perhaps between now and Report noble Lords will provide those arguments.
    The noble Earl, Lord Russell, suggested that splitting up was not the ultimate evil. As a product of divorced parents myself, I am prepared to agree with him. However, he will surely concede that splitting up, though not the ultimate evil, is equally not an end devoutly to be wished. The question not answered by the noble Earl is why, with our eyes open, we should expose children to the additional risk of splitting up to which I referred earlier. My approach is the risk management approach. I make no apology for that. I do not apologise because of Clause 1. We should not be in the business of countenancing serious and significant additional risk when Clause 1 of the Bill takes us through a catalogue of considerations.
    Earl Russell: I shall, if I may, answer the question posed by the noble Earl. Why expose them to risk? If one is not prepared to be exposed to risk, ones does not marry at all.
    Earl Howe: If the noble Earl's argument were accepted, we would scrap Clause 1 and just accept any couple who came along. Of course, there are risks that are more important and significant than others. I was chided by the noble Lord, Lord Adebowale, about poor people. He suggested that if my argument were followed, then poor people should not be allowed to adopt. I am sure that even he would agree that, in the assessment process, the ability of a couple to support and bring up a child is important, actually. That does not mean that poor people should not be allowed to adopt, but it is a consideration in whether the child would be properly looked after.
    My position, therefore, can be easily rubbished in terms that amuse everybody. However, I have not heard anyone seriously attack me or repudiate my earlier arguments about risk. In reply to the noble Baroness, Lady Thomas, I am certainly not saying that certain sorts of family are unsuitable for adoption. I am saying that there are clear and proven risks. Why take them? Although we can talk all we like about "rigorous assessment" and the stability of a relationship, "rigorous assessment" makes the process sound like a science.
    Lord Clement-Jones: I should like to press the noble Earl further. Taking his risk management approach to its logical conclusion, we could decide that the divorce rate in a particular town—Berkhamstead, for example—was so high that the risk of placing people for adoption there with married couples was too great, so we had better exclude all adoption in Berkhamstead. Is that not the ultimate conclusion of the risk management approach?
    Earl Howe: Not at all. The noble Lord is falling into the trap I was indicating earlier. His argument has nothing to do with real people.
    Lord Hunt of Kings Heath: Is that not the point of the argument here? The noble Earl's argument is that, because of the general statistics that show that married couples tend to stick together more than cohabiting couples, no unmarried couples should be able to be adopters. If Clause 1 is right and the paramount consideration is the child's welfare, we must consider each child and each potential couple on their own merits.
    Earl Howe: Yes, indeed we must, but there is no magic formula to enable anybody, however professional and however experienced, to assess whether this couple or that couple is more or less likely to split up. It cannot be done. It is a subjective judgment. Noble Lords may airily dismiss the statistics—and the noble Lord, Lord Clement-Jones may refer to them as pseudo-statistics—but they are published by the ONS.
    The study published in 1999 concluded:
    "In general, across most European nations children are less likely to see their parents split up if they are born to married parents than to cohabiting parents".
    An analysis of the subsequent British Household Panel Survey said:
    "Cohabitees who have children are more likely to split up than those who do not. The evidence therefore points to the likelihood that placing an adoptive child with an unmarried couple will increase the likelihood of their relationship breaking down".
    That is more or less the only point I was making. It is very simple and noble Lords have not fully answered me, though they have tried to.
    Lord Clement-Jones: I shall try one final stab at the noble Earl. The point is surely that that does not deal with real people. The noble Earl is dealing with statistics, probabilities and risk management. He is not dealing with individual couples who put themselves forward as adoptive parents.
    Earl Howe: But I am. I am dealing with real people with real children. That is what the statistics are based on. It is not where they live or what their name begins with, which are irrelevant considerations. It is real people with real children who split up. Statistically, married people split up less often. I do not believe that the noble Lord has got to the heart of my argument.
    As I said at the beginning, we are not going to decide this matter today. I thank all Members of the Committee who have spoken and I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 48 agreed to.
    Clause 49 [Adoption by couple]:
    [Amendments Nos. 72 and 73 not moved.]
    Clause 49 agreed to.
    Clause 50 [Adoption by one person]:
    [Amendments Nos. 74 and 75 not moved.]
    Clause 50 agreed to.
    Clause 51 [Parental etc. consent]:
    6.30 p.m.
    Earl Howemoved Amendment No. 76:
    Page 31, line 8, leave out paragraph (b) and insert—
    "(b) adoption would be so significantly better for the child than any other option as to justify overriding the parent's wishes."
    The noble Earl said: I shall speak also to Amendments Nos. 77 and 78.
    We all welcome the provision in Clause 1, which introduces the welfare principle into all decisions by adoption agencies and courts relating to the adoption of a child. This will ensure that, whatever the competing interests in the adoption process, the welfare of the child is ultimately at the top of the agenda.
    However, Clause 51 brings with it a related concern. We see in subsection (1)(b) what apparently amounts to a simple welfare test for dispensing with parental consent. This has caused considerable disquiet among experienced professionals in adoption, including the BAAF and the Law Society. Adoption is different from any other plan for the vulnerable child because it involves lifelong consequences. An adoption order triggers an irrevocable severance of the relationship between the child and his or her parents and wider family. It therefore constitutes the most fundamental interference with the right to family life from the point of view of the child's birth family.
    For these reasons, it is important to ensure that, when it comes to overriding parental wishes in adoption cases, the manner in which welfare is interpreted is subject to particular scrutiny, to show that adoption will bring significant advantages that cannot be achieved by any other plan. If those significant advantages cannot be demonstrated, the child's welfare may be better served by securing his placement by another legal route, which does not involve such irreversible finality for all parties.
    The Adoption Act 1976 contained provisions to ensure that adoption cannot be imposed by the state on non-consenting parents without there being grounds to dispense with such consent. However, the wording of Clause 51(9)(b) removes any consideration of the parents' consent to adoption, because dispensation will be based entirely on judicial interpretation of what will, on balance, best promote the child's welfare. While that closely mirrors the grounds for orders made under the Children Act, it does not distinguish between adoption and, for example, a residence order or special guardianship order, even though the consequences of each differ substantially.
    I ask the Minister to seek advice on European case law, which has established that there must be exceptional circumstances to justify permanently severing the parent-child relationship. The Bill does not give appropriate weight to the irrevocability of adoption in contrast to other orders. In step-parent adoptions, where the court is being asked to dispense with parental consent, an adoption order may be

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    granted in cases where there is no finding of parental failure to protect their child as in cases where children are adopted from care and adoption is in the child's interests only on balance.
    The proposal in Amendment No. 76 is that the circumstances should be exceptional enough to justify the state severing the parent-child relationship against the parents' wishes, following which the welfare principle in Clause 1 would be applied by the courts to determine whether adoption is the best course for the child. Without such an amendment, there will be no test for dispensing with parental consent and too little encouragement to the courts to consider alternative proposals when parents are withholding their consent. That was one of the recommendations in the 1992 interdepartmental working group report to Ministers.
    Amendments Nos. 77 and 78 can be covered very briefly. Amendment No. 77 is closely related to the point that I have just made. Consent by birth parents to an adoption order must be fully informed consent. This is not just a matter of making sure that the finality of the adoption order has been impressed on them. It is also a matter of making sure that the alternatives to adoption have been thoroughly explored and explicitly rejected. Special guardianship as a half-way house may be appropriate in some cases. Birth parents have to know about it and consider it.
    Amendment No. 78 relates to Clause 51(5). What do we mean by consent? The clause says,
    '"Consent' means consent given unconditionally and with full understanding of what is involved"
    That is obviously right, but it should also mean consent that is freely given without any suggestion of duress. Nor should consent be obtained on the back of any financial or non-financial inducement. In each case the process has to be open, honest and transparent. I very much hope the Minister will be sympathetic to these arguments. I beg to move.
    Lord Campbell of Alloway: I interpose very briefly. Amendment No. 76 makes a presumption of preeminence of the parental wish on withholding consent. That is the situation in the case I referred to on Second Reading. I am not being critical of my noble friend, there is a misunderstanding. This is not a simple welfare provision. It is the antithesis of a simple welfare provision. The simple welfare provision was established in the case of In Re W, and this is in total conflict with it. That is why I oppose the amendment. Amendment No. 77 is hardly appropriate.
    Amendment No. 78 makes no sense. It refers to "improper duress or inducement". The parent is there. In In Re W the young girl was there and gave evidence. There was no question of duress. If there was any hint of duress the judge would get on to it very quickly indeed. This is a wholly unnecessary provision. It would not matter if we put it in the Bill because it would not do anything. Amendment No. 76 would alter the whole structure of parental consent and I therefore oppose it.
    Lord Clement-Jones: I shall be brief. I am not going to trade the effect of Amendment No. 76 too greatly
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    with the noble Lord, Lord Campbell of Alloway. That could take far too long. He is right that it would considerably alter the impact of the clause. That is the intention. I shall revert to the usual pattern of this Committee and support the amendment of the noble Earl, Lord Howe.
    The noble Earl set out his stall extremely effectively. It would simply be a matter of underlining the reason for our previous amendments, which were in the nature of how placement orders are made. This is very cognate. It is the finality of adoption which again is so relevant. If placement orders were made in every case through a court process, this would not be necessary. The finality of the adoption order process means that a different test is needed in these circumstances. This formulation would give greater protection and would not mean that the sole welfare ground would allow that parental consent to be dispensed with.
    Baroness Howarth of Breckland: I, too, support the amendment. I recognise that the Government wish to speed up adoption. In many circumstances that is right, bearing in mind the ethos and press that the Bill takes forward.
    I began my career in social work under the Children and Young Persons Act 1963, which developed ideas and projects to prevent the breakdown of family life. It was the era of good social work support and financial intervention, ensuring good community intervention and housing for vulnerable families. In the late 1980s and 1990s, we saw the erosion of the support to local authorities. Many of those principles and programmes were lost.
    Not all birth families are appropriate for the placement of children. I have spent most of my life dealing with child protection and family violence and abuse. Where possible, we should make every effort to ensure that the families have had support. I hope that the amendments put forward by the noble Earl would help that to happen.
    The Department of Health's consultation document about effective adoption support says very little about local support for groups of birth parents. As I have said before, if we are to keep this balance we have to remember that there are many women—certainly single mothers—who have said that if only they had had the support that seems to be available post-adoption under the present regime, they may have been able to provide a home for their child.
    I simply caution the Government in this. We must pay real attention to having checklists that provide for birth parents to be properly investigated. We must give them every opportunity. In the long run, the birth family will be able to give all that the child needs.
    Baroness Masham of Ilton: On Amendment No. 76, would the wishes of the natural mother be over-ridden if she wanted her child to go to a specific family of her religion? Whatever the modern life is, some people feel very strongly about their religion. What would the noble Earl's amendment mean in that respect?
    Earl Howe: Nothing in my amendment over-rides Clause 1(5) or the provisions in Clause 1, which we all agree need to be the basis behind any adoption decisions.
    6.45 p.m.
    Baroness Andrews: I am grateful to the noble Earl, and pleased that he has received such reassuring support on this amendment. I was worried about the injuries he received with the last amendment, because we all know him to be a most splendid fellow.
    This debate will not generate as much passion, although there will be a different sort of passion. There are more technical arguments to be had here.
    I will deal with this in a little detail because it raises important questions. It is at the heart of the Bill. There can be nothing more serious than enabling a child to be removed from the parent and placed with another family.
    I assure the noble Baroness, Lady Howarth, that we are not concerned with speed here. We are very much concerned that the right decision is made in terms of the rights of the birth parent and the rights of the child. Our intention is to strike a balance. I shall explain why we believe that our clause is right.
    The clause covers the definition of consent and the circumstances in which it may be dispensed with. In the context of adoption, we are talking about changing lifelong legal effects, which is why we need to be so certain. Therefore, we recognise that the appropriate test for dispensation is critical. It is very difficult.
    I pay tribute to the people in the stakeholders groups and in the Committee who have wrestled with these definitions and with the attempt to strengthen what they see as the problem of rights while maintaining the balance. We have wrestled over the past few years to get this right so we do recognise the sincerity of the concerns but we believe that the formulation already in the Bill is more appropriate and preferable.
    The broad principles have been alluded to by the noble Earl already. I refer to the founding principle set out in Clause 1 which commands all-party agreement and which underpins the Bill, as it does the Children Act; namely, that the child's welfare should be the paramount consideration and the deciding factor for courts and adoption agencies in coming to any decision relating to the adoption of a child. That is the great step forward that we are making in the Bill. At the same time we have given appropriate assurances that the views, interests and capabilities of parents and relatives are essential elements of that decision.
    The second principle that has shaped our approach is one of process. It is the need to set out in legislation a clear and broad framework for the courts themselves that indicates the test that needs to be met—in this case that the child's welfare requires parental consent to be dispensed with. The fundamental matter that they must address in coming to any decision to make that dispensation is the welfare checklist that is set out in Clause 1.
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    We do not want to make that framework overly prescriptive. We want to avoid reducing or fettering the court's discretion to consider and weigh up the detailed circumstances of each individual case that comes before it. That point was well made by the noble Lord, Lord Campbell of Alloway, on Second Reading.
    Amendment No. 76 seeks to alter the provisions in Clause 51(1). As currently drafted, the clause provides that the court may only dispense with a parent or guardian's consent in two circumstances. The first is relatively simple. It is where the parent or the guardian cannot be found or is incapble of giving consent, perhaps because of a serious mental or physical illness. Perhaps I should say that we would certainly expect the courts to be satisfied in the first instance that reasonable steps appropriate to the situation would have been taken to find the parent or guardian. Last week in Committee we discussed in passing the sadness of babies found abandoned on the steps of Temple Church. In that situation I suspect that it would be difficult to find either the father or the mother, but there will be many situations where the process will be far easier.
    The second circumstance where parental consent may be dispensed with is where the child's welfare expressly requires consent to be dispensed with. I want to stress the term "requires". I have been concerned by what has been said this afternoon. Some concern has been expressed that this test in Clause 51(1) is a trivial one which will be easily met, that it is a simple welfare test and that it might indeed lead to adoptions being made against the parents' wishes in difficult or marginal cases.
    I want to reassure the Committee that we do not believe that that is the case. The court has to judge the child's welfare, which includes its mental, physical and emotional needs—a harsh set of criteria —not just its wishes and feelings. We are requiring the court to dispense with parental consent to adoption. That is not a judgment that can be taken lightly. I see the noble Baroness, Lady Howarth, nodding her head in agreement. It is not a decision that is taken lightly. It is not a test that would be met in marginal cases.
    That is the provision that will now apply in contested placement orders or adoption orders. It is linked to Clause 1 which puts the welfare of the child at the heart of the Bill. It is a different test from that currently set out in Section 16 of the 1976 Act and we believe that it is a better lest. Under current legislation the court may dispense with the consent of the parents where it considers that that consent is being withheld unreasonably. The court considers in such cases what a reasonable parent would do in the particular circumstances of that individual case. Case law has established in In Re W—in which the noble Lord, Lord Campbell, was such a distinguished participant—and in subsequent judgments, that in determining what a reasonable parent's attitude would be the welfare of the child was a leading consideration. The parents become the focus of the decision but the welfare of the child is the critical factor. By making the welfare of the child paramount in the Bill we are again moving forward from this position. Ultimately, even in these

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    most difficult of contested cases, the paramountcy principle must hold and must be considered as the central overriding concern.
    Again I would stress that scrutiny is implied in the term "welfare" and in the checklist. This is not a vague notion of a general well-being; we are talking about range and complexity of needs. We have heard this afternoon in a previous debate of challenging, difficult, hard to place children with complex histories of abuse and trauma. Those needs have to be assessed against the test I have mentioned. It is clear that the consideration of the views, wishes, rights and interests of the parents, and their capacity to care for the child, as defined in Clause 1(4)(f)(ii), is a critical factor. We define that capacity as, for example, the relationship the child has with parents or relatives, the prospect of that continuing and the willingness and ability of parents or relatives to develop a secure environment in which the child can flourish.
    It is also worth remembering that the court is not limited to making a placement or an adoption order, it can make a variety of orders; it can make a residence order. I address the point raised about the finality of adoption and the difference between placement and adoption. Indeed, there is a significant difference between a placement order and a final adoption order. However, we are aiming at consistency across the two types of orders.
    When the court comes to judge whether the child is ready for adoption and whether to make an adoption order, there will be other considerations which the court will have to take into account. It is not just a matter of the list; the list is a starting point. There will be many other considerations which will be different from the considerations that are made under a placement order. We believe that that is properly left to the courts. As regards contested placement order or adoption order cases, we have not just provided in the welfare test for the criteria to be weighed up as fully as possible; there is also an extra safeguard.
    I come to another point raised by the noble Earl. He expressed concern about the application of the Human Rights Act. I reassure the Committee that we are entirely clear that the provisions of the Bill are consistent with the Human Rights Act and that the courts will have to apply the provisions of the Bill when it is enacted in the context of ECHR case law and obviously in relation to Article 8 which refers to respect for family and private life. Any interference in those rights must be necessary and proportional. To quote the case law on this, the leading case is Johanson v. Norway [1996] which makes it clear that
    "Deprivation of parental rights and access should only occur in exceptional circumstances and would be justified if motivated by an overriding requirement pertaining to the child's best interests".
    Therefore, it is not a case of trivial criteria applying. That consideration will be observed by the court.
    I turn again to the amendment. The structure of the Bill provides an appropriate test for protecting the rights of parents but in a way which is consistent with the paramountcy of the welfare of the child. We do not
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    believe that the amendments we are considering would achieve that. Amendment No. 76 would alter subsection (1)(b) of Clause 51 so that instead of the courts being able to dispense with parental consent to adoption because the child's welfare required it, they could do so only if they concluded that adoption would be so significantly better for the child than any other option as to justify overriding parental wishes.
    The two arguments that emerge from the logic of the provision is that, first, it will ensure that proper weight is given to parents' wishes and their rights in respect of the child, and, secondly, it will provide a clear threshold for dispensing with consent. I have addressed the first argument in the sense that I have identified three different ways in which the parents' rights are protected: first, the requirement argument; secondly, the fact that there is explicit protection of parental interests in Clause 1; and, thirdly, because the courts will have to observe European law and the Human Rights Act. Those safeguards are in place. The latter were recognised by the British Agencies for Adoption and Fostering, when it gave evidence on this issue last March to the Select Committee.
    On the second argument, we come to the form of words which has been specifically chosen. We believe that those words carry the risk of cutting across the principle and the operation of paramountcy of a child's welfare. As I have said, we fully recognise the difficulty that has been addressed and the thought that has gone into finding a better form of words, in the view of the noble Earl. However, simply put. it is very difficult to be clear as to what.
    "so significantly better … to justify overriding the parent's wishes",
    actually means, and how it would work.
    To take what might be seen as a parallel, provision in Section 33 of the Children Act that applies to care orders provides a clear threshold. A care order cannot be made unless the court is satisfied that the child is at risk of "significant harm". Of course, that is the same threshold that applies to placement orders, because one cannot make a placement order unless the child can be seen to be at risk of significant harm, or already has a care order. However, the problem is that "significant harm" is a tangible concept but "significantly better" is not.
    "Significant harm" encompasses a body of evidence that provides parameters and definitions. It is defined in the Children Act as a starting point. The term "so significantly better" implies a relative judgment with the court invited to make a comparison between a hypothetical situation and not one judgment, but three. Is adoption itself better? Is it significantly better? Alternatively, is it so significantly better that it justifies overriding parental consent? We have to ask, better than what? On what basis is this judgment made? Are we talking about material grounds here, and about what can be offered to the child in terms of resources? Are we talking about emotional grounds? Moreover, when does "better" become "significantly better"? What is the scale of significance? What are the break points? What are the bench-marks?

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    I am also unclear about what it would add to the process itself. At the end of the day, the court would need to consider precisely the range of factors set out in the welfare checklist. There is no "better". That is established by the Children Act. It is expanded in the context of adoption, but it is the same tried-and-tested provision. None of that is defined for the court; there are no starting points. The danger is that it would be a subjective test with little guidance for the court. It is difficult to discern whether it could provide the kind of clear test that we want to see. I do not want to be pejorative to lawyers—it is too dangerous in this place — but I cannot imagine that it would do anything but generate a lot of profit and pleasure. It might even have the effect of raising the legal threshold. Indeed, it might actually make it even more difficult to place children for adoption.
    Our deep concern in the context of the Bill is that we believe this could put at risk the paramountcy principle. It would be difficult to hold the notion that the child's welfare is paramount while at the same time directing the court's attention to a potentially additional nebulous test. We have put a lot of thought into this matter. We feel that we have a better solution, which will protect the rights of parents, both explicitly and robustly, in a way that is consistent with what we want to see in this Bill for children. I cannot, therefore, support the proposed change. I am tempering my kind words to the noble Earl by saying that I cannot accept the change that he suggests to the clause.
    I turn to Amendment No. 77. The literal effect of this amendment would be to enable the court to dispense with the parents' consent for adoption; in other words, to make an adoption order even if the parents were opposed, provided that the courts were satisfied that the parents had received written information on the alternatives. That cannot have been the intention. It is possible that it is intended to highlight t he importance of proper counselling, which is something about which we are serious. I have a two-page briefing note in my file that outlines the process of counselling and support for parents. I believe that my noble friend alluded earlier to the fact that that is a very rigorous process.
    In addition, our National Adoption Standards make it clear that adoption agencies and local authorities should make every effort to ensure that birth parents have a full understanding of the process, and of the legal implications involved. Where adoption is considered for a child in care, we would expect the social services department in its work with the birth family to discuss all the implications. Again, we have talked about ways of raising performance and improvement in that area.
    The Schedule 2 report which, under current court rules, the local authority must complete for every adoption order, obliges the local authority to report to the court the results of its investigation into the case, including an account of the alternatives that have been considered. It is envisaged that the reports the adoption agencies will have to provide under Clause 42 and those that local authorities must provide under
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    Clause 43, will also cover this point. So the courts can be secure in the knowledge that the alternatives to adoption have been considered.
    Finally, any consent to placement for adoption and to an adoption order must, of course, be witnessed by the CAFCASS officer, who, as we have discussed at other stages of the Bill in relation to placement, will have an obligation to ensure that the parents understand what they are agreeing to and the seriousness of the step, and must, as stated in Clause 99(1), report that to the court. I reiterate, therefore, that we are committed to ensure that all the alternatives are properly explored and that the parents are counselled and fully aware of the alternatives.
    Amendment No. 78 expands on the definition of "consent", as set out in subsection (5). I take the point robustly put by the noble Lord, Lord Campbell of Alloway, that the amendment suggests that "consent" should be defined as,
    "consent given unconditionally without improper duress or inducement and with full understanding of what is involved".
    I sympathise with the intentions, but I suggest that the Bill already provides a clear definition. My first concern is with the words "improper inducement". I believe that they might even risk giving the impression that there was a concept of "proper inducement". We might think of it as unconditional, but the reference to "duress" risks confusing the picture.
    Perhaps I may reassure the noble Lord. In law, duress, alongside mistake and fraud, is already one of the legal grounds on which consent can be vitiated, so it is not necessary to mention it explicitly. On that basis, I hope that Members of the Committee will understand why we do not believe it is a helpful addition to the Bill.
    It has been a very thoughtful debate. I am grateful that we have had this opportunity. Again, I seek the forgiveness of the Committee for having gone into such detail. But it is important to have that on the record, not least for stakeholders outside this House to know that we have addressed their concerns seriously and have thought hard about how we can deal with the balance of what the Bill attempts to do.
    7 p.m.
    Earl Howe: The noble Baroness need make no apology whatsoever for having given us such a clear and helpful reply. I should point out to her that that is the point of this Committee proceeding. Indeed, if it enables us all to understand what the Bill is saying, as well as the Government's intention, it may obviate the need to bring amendments back on Report. I do not promise anything at this stage because I wish to read the noble Baroness's comments carefully. I thank the Minister for her extremely helpful and illuminating response.
    I also congratulate the Minister on her secret weapon in the form of my noble friend Lord Campbell of Alloway, whose opinions and experience we all respect. I would never seek to belittle the force of existing case law. However, as I am sure my noble

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    friend will understand, my remarks were directed in the context of parallel considerations, particularly in the context of European law. I am delighted that the noble Baroness was able to cover that aspect so comprehensively. She suggested that the phrase "so significantly better" was too vague and too insubstantial to be inserted in the Bill. I shall have to think about that.
    I still believe that the test in relation to dispensing with parental consent, as proposed in the Bill, is somewhat broad. As it reads, it gives too little encouragement to consider alternative options. The point of tabling the amendment was to seek a way of inserting a clearly defined threshold to be crossed before parental consent can be dispensed with. The court needs to ask itself what are the needs of the child, what is the scale of potential advantage to the child of having a new family, and whether it is satisfied that the likely benefit of adoption is so significantly better when compared with other options as to justify the adoption order.
    The Minister suggested that this would give rise to a lawyers' field day. An alternative view might be that judges are there to judge and that that is their job. They do it all the time, they do it very well, and they do it on the strength of the evidence presented to them. Nevertheless, I thank the Minister again. It has been a very helpful debate. I beg leave, for the time being, to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 77 and 78 not moved.]
    Baroness Andrewsmoved Amendment No. 78ZA:
    Page 31, line 28, leave out "prescribed form" and insert "form prescribed by rules"
    The noble Baroness said: I shall move this short amendment very briefly. I am happy to move it as it has been beneficial in previous discussions. I think that it will be welcomed.
    The effect of the amendment is to make it clear that the form for withdrawing of consent to placement for adoption under Clause 18, or advanced consent to adoption, under Clause 19, is to be prescribed in court rules. At the moment, it just says "prescribed". It will be important that there is certainty as to when consent of placement or advanced consent to adoption has been withdrawn, because from that point the agency is under an obligation to return the child under Clauses 30 and 31. That is why Clause 51(8) provides that any such withdrawal needs to be given to the agency either using the prescribed form as set out in subsection (8)(a), or otherwise through a written notice as set out in Clause 51(8)(b). "Notice" is defined in Clause 139 as "notice in writing".
    In this amendment, we seek absolute clarity and the removal of any chance of confusion as to who is to prescribe the form for withdrawal of consent. As with the form of consent, the placement and advance consent to adoption, it will be prescribed in court rules by the Lord Chancellor. It will be important that
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    people are very clear about that and understand it. I hope that noble Lords will welcome the amendment on that basis. I beg to move.
    On Question, amendment agreed to.
    Earl Howemoved Amendment No. 78A:
    Page 31, line 30, leave out subsection (9).
    The noble Earl said: I beg to move Amendment No. 78A. I shall speak also to Amendment No. 78B. This again is a human rights issue relating to parental consent. The effect of Clause 51(9) and (10) is that the other parent, usually the father, is credited with a far-reaching previous decision to which he has not been a party, and is thereby excluded from opposing the adoption application under Clause 46(4), (5) and (7).
    I seriously question whether this is sustainable under the Human Rights Act. One situation which is not uncommon is for the father of the child to be identified late in care and adoption proceedings, for him to express a wish to be heard on issues relating to his child. His exclusion under these subsections seems to offend against natural justice. I beg to move.
    Lord Clement-Jones: I wish briefly to support the noble Earl, Lord Howe, on Amendments Nos. 78A and 78B. It is extraordinary that the consent of the other parent is presumed under subsection (10), in particular. It does seem, without putting it to the test, that this is something that could be challenged under human rights legislation. That is the reason for the deletion.
    I should be interested to hear how this provision can be justified. As the Minister has been extremely good so far in justifying a number of provisions in the Bill, I am sure that she is charged up for this particular amendment. The provision does seem to go against natural justice, as the noble Earl, Lord Howe, has made plain.
    Baroness Andrews: The amendment is slightly complicated and my response will reflect that. Amendments Nos. 78A and 78B seek to remove the provisions in clause 51 that cover situations whereby a mother with parental responsibility has consented to a placement for adoption under Clause 18 and another parent subsequently acquires parental responsibility. It can happen in a variety of ways. The obvious way is when the unmarried father later marries the mother, but it can also happen when he obtains responsibility by agreement or through a court order under Section 4 of the Children Act.
    We are doing this essentially to ensure that there is more stability with the placement. To put it bluntly, that is what I understand to be our—genuine—reason for doing this. At the moment, subsections (9) and (10) of Clause 50 provide that in such situations the father will for the purposes of the adoptive placement be deemed to have given his consent under Clause 18, as has the mother. Having acquired parental responsibility, he also is free to withdraw his consent to the placement for adoption at any time until the prospective adopters apply to the court for an adoption order. He will he entitled to receive notice of

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    the final adoption hearing and seek leave to oppose the making of the adoption order. I believe that that will cover the human rights point which has been raised. He can oppose the adoption order, as can the mother.
    The amendment seeks to remove this provision. That is the effect of deleting subsections (9) and (10). The effect would be that, from the point at which the father acquires parental responsibility, legal authority for the placement for adoption will cease because he has not given consent in the first place under Clause 18. That is where the element of instability and discontinuity would occur.
    Such provision would cause severe problems. For example, the adoption agency might not necessarily be aware that the father had acquired parental responsibility; that might have been concealed from it by the mother. This can happen in a variety of circumstances. It might happen after consent to placement was given. The mother may decide not to keep in touch with the agency. A whole set of circumstances may surround children in care which makes it difficult to know what relationships continue between the mother and the father.
    The result would be that the agency could unknowingly proceed with a legally invalid placement. We can only imagine the destructive consequences. The whole arrangement could unravel if that came to light at a much later stage. It could come to light after an adoption order had been made under Clause 46(4), the order having been based on everyone's assumption that the consent to placement was valid.
    When the Committee debated the position of unmarried fathers earlier, I promised that agencies would be under a duty in regulations and guidance to seek out and properly involve unmarried fathers in the process of determining whether a child should be placed for adoption. That again addresses in a positive manner the human rights argument. Where agencies are aware of the unmarried father, they are already under a duty to do that under regulation 7.3 of the Adoption Agencies Regulations 1983 so far as is reasonably practicable. That will be extended.
    However, we cannot cater for every case, particularly when the unmarried father is not on the scene at the time of placement but returns later, has a view, and the agency is not made aware of that fact. In those circumstances, the best approach must be that currently taken in the Bill—to preserve the validity of the placement while giving the father full rights to withdraw consent at the stages which I have identified.
    Lord Clement-Jones: I understand the Minister's point that subsections (9) and (10) are there in order not to invalidate the placement. In retrospect it might be that the appropriate consent had not been given. Nevertheless, assuming the other parent has given deemed consent under this section, all the other aspects apply, so that the withdrawal of any presumed consent by that other parent is ineffective if given after an application for an adoption order is made under Clause 51(4). We are also back to the arguments about the court having to give consent if withdrawal of consent applies. We made those arguments when we
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    were talking about the reasons for a placement order. The situation would be cured much more effectively if placement orders were given in every case.
    Because the other parent who did not give consent but is now deemed to be giving consent under subsections (9) and (10) is dealt with in that way, the other two conditions apply in the same way that they apply to the original parent who gave consent. They cannot withdraw it except under those two conditions.
    7.15 p.m.
    Baroness Thomas of Walliswood: I have a slightly different question. I think the Minister said that Clauses 9 and 10 say that the other parent was deemed to have given consent, and therefore, because of "in the same terms" in subsection (10), if he turned up later he was also able to withdraw his consent under the same terms as the first parent who had given her consent. Is that what that clause means? It is very difficult to work it through, but that is what I understood from her answer.
    Lord Clement-Jones: Just to amplify that, the same terms are hedged about with considerable restrictions under the terms of the legislation.
    Baroness Andrews: There are a number of issues here that collude in notions of change of circumstances and what either parent can do under the circumstances. This is very technical and I would prefer to write a reasoned reply that would take account of the points raised by the noble Baroness, Lady Thomas, and the noble Lord, Lord Clement-Jones.
    Earl Howe: I am very grateful once again to the Minister. I particularly appreciate her offer to write. I think she understands that I am uncomfortable with the implication of these subsections. I am grateful to the noble Lord, Lord Clement-Jones, for the way in which he pinpointed the discomfort that we share. The subsections imply that once in the system a child becomes the property of the system. I know that is not the Government's intention, but in certain circumstances it could be the result.
    I believe the Minister referred to Clause 46(4), which says that it was possible for a parent or guardian to oppose the making of an adoption order. As I understand it, the parent or guardian has no absolute right; he may only seek leave to the court to do that. I am not sure whether that is sufficient protection. I understand her argument that the validity of the placement needs to be preserved, but between now and Report I need to consider whether the Bill provides the best way of approaching that objective. If possible, we need to look at other solutions. This has been a most helpful debate. For the time being, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 78B not moved.]
    Clause 51, as amended, agreed to.
    Clause 52 agreed to.
    Clause 53 [Disclosing information during adoption process]:
    Lord Astor of Hevermoved Amendment No. 79:
    Page 32, line 29, leave out "may" and insert "must"
    The noble Lord said: I rise to move Amendment No. 79, which would make the provision of the necessary information about a child to prospective adopters obligatory rather than discretionary before they accept a match that the agency suggests. The extent of this problem was demonstrated by Local Authority Circular (98)20, which had to point out to local authorities that,
    "It is unacceptable for adoption agencies to withhold information about a child to the extent that the picture of a child provided to prospective adopters is so lacking in substance as to bear little relation to reality".
    If we are to promote stability for adopted children everything must be done to avoid unnecessary moves, including disrupted adoptions. Misinformation, or lack of information, is a factor in disruptions. Amending Clause 53 is an opportunity to strengthen the need for candour on the part of local authorities.
    If a prospective adopter is well informed, he or she can be well prepared. That preparation will make all the difference at a difficult and an emotional time. If prospective adopters are to be sensitive to the needs of a child, they must be given as much information as possible about those needs, be they learning or behavioural difficulties, physical disabilities, challenging psychological experiences from a past home environment, or the problems that the noble Baroness, Lady Howarth, mentioned earlier.
    Clause 53 leaves "prescribed circumstance" and "prescribed information" to the regulations to define. The new National Adoption Standards state, in Chapter C2, No. 3, that,
    "agencies should give full information about the child in writing … adopters to sign to say they have received this information … [and that the] agency should have written guidelines on the information to be provided".
    However, the guidelines are not available in advance of the Bill. Therefore, we should like to see some safeguard on the face of the Bill. I beg to move.
    Baroness Barker: I rise very briefly to make the case that this is not the customary argument held in Parliament between "may" and "must". This is something more than that, because it imposes a duty on adoption agencies to disclose information. The amendment has arisen because of past experience and practice. It is not isolated experience; it is representative of the experience that adoptive parents have had. The issue which the noble Lord, Lord Astor of Hever, has raised is one that has come increasingly to prominence, particularly over the last 10 years or so. The nature of the children being adopted has changed dramatically and the importance of the history of particular children to adopters has become more important than it ever was previously.
    I hope the noble Lord, Lord Astor of Hever, will correct me if I am wrong, but I believe that the purpose behind the proposed insertion of this word on the face
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    of the Bill is to set an absolute mark against practice and culture within agencies, which has been mentioned previously as being a particular problem. It is not universally a problem but it may be a problem within particular agencies. The adoption standards, to which the noble Lord referred in his opening remarks, bear out the fact that the Government believe this to be best practice and hope to see it become prevalent practice. This is to make sure that the power exists to eradicate bad practice. That is why I believe this is slightly more than our usual knockabout "may" and "must" argument.
    Lord McIntosh of Haringey: I do not disagree—subject to reading it in Hansard—with a word that either the noble Lord, Lord Astor, or the noble Baroness, Lady Barker, have said. I am sorry to have to tell the noble Baroness, Lady Barker, that I am afraid I believe I can show her that it is a "may" or "must" issue and it is the kind of "may" or "must" issue with which I have been dealing in this House for nearly 20 years. For 14 of those years, I used to argue that the "may" should be turned into "shall", and for the past five years I have been arguing that it should not. So the Committee will hear the experience of five years rather than the experience of 14 years.
    I can give the assurance that is sought. The Government are committed to providing adopters with the information they will need in order to decide whether to adopt a child. We shall bring forward these regulations and we shall consult stakeholders in the adoption field, including groups representing adopters. We have not done so because the consultation has not yet taken place or, at any rate, is not complete. The Government tabled these amendments in Commons Committee precisely to ensure that we have the powers to bring forward regulations.
    The regulations will give the powers to ensure that there is full and appropriate information in three stages: first, when a link between a child and prospective adopters is suggested; secondly, when a match is being considered; and, thirdly, in preparation for the placement of the child. Therefore, I assure the Committee that that is not the problem.
    What is the problem about "may" and "shall"? We can bring forward the regulations, but Parliament is sovereign and we cannot be sure that the regulations will be acceptable to either this House or the other place. If the regulations were rejected and if we had the word "must" in, the Secretary of State would be given a duty that he could not fulfil. That is the only issue between "may" and "must", and that is why parliamentary counsel insist that we should say "may" and not "must". However, everything that has been said, with which I very much agree, is still true.
    Lord Astor of Hever: I welcome the Minister to Grand Committee. We look forward to more of his humour. I thank the noble Baroness, Lady Barker, for her support. I certainly agree that there have been many bad experiences of information not being given to prospective parents.

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    I am glad that the Minister agrees that it is vital that that proper information is provided and that the regulations will ensure that it is provided at the three stages he mentioned.
    We wish to consider this matter carefully. We have received strong advice from outside bodies that feel that the provision should be on the face of the Bill, but in the meantime we shall consider it. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
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    Clause 53 agreed to.
    Clause 54 agreed to.
    Lord Hunt of Kings Heath: This is a convenient moment to adjourn our proceedings.
    The Principal Deputy Chairman of .Committees (Lord Brabazon of Tara): The Committee stands adjourned until Monday 15th July at 3.30 p.m.
    The Committee adjourned at twenty-nine minutes past seven o'clock.