HL Deb 28 July 1926 vol 65 cc323-33

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Desborough.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1 agreed to.

Clause 2:

Restrictions on making adoption orders.

2.—(1) An adoption order shall not be made in any case where—

  1. (a) the applicant is under the age of twenty-five years, or
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  2. (b) the applicant is less than twenty-one years older than the infant in respect of whom the application is made.
Where the applicant is related to such infant by blood within the prohibited degrees of marriage the provisions of subsection (1) (b) shall not apply, and an adoption order may be made subject to the discretion of the Court.

(3) An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant in respect of whom the application is made or who has the actual custody of the infant or who is liable to contribute to the support of the infant:

Provided that the Court may dispense with any consent required by this subsection if satisfied that the person whose consent is to be dispensed with has abandoned or deserted the infant or cannot be found or is incapable of giving such consent or being a person liable to contribute to the support of the infant has persistently neglected or refused to contribute to such support.

(4) An adoption order shall not be made upon the application of one of two spouses without the consent of the other of them:

Provided that the court may dispense with any consent required by this subsection if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent.

(5)An adoption order shall not be made in favour of any applicant who is not resident and domiciled in England or Wales or in respect of any infant who is not a British subject and so resident.

LORD DESBOROUGH moved, in sub-section (1), to leave out all words after paragraph (b), and to insert: Provided that where the applicant and the infant are within the prohibited degrees of consanguinity, it shall be lawful for the Court, if it thinks fit, to make the order notwithstanding that the applicant is less than twenty-one years older than the infant. The noble Lord said: This is a drafting Amendment and is considered to be an improvement on the subsection as it appears in the Bill.

Amendment moved— Page 2, leave out lines 4 to 8, and insert the said proviso.—(Lord Desborough.)

On Question, Amendment agreed to.

LORD DESBOROUGH moved, in the proviso to subsection (3), after the second "infant," to insert "either." The noble Lord said: This Amendment must be taken in conjunction with that which immediately follows it upon the Paper. It does not alter the sense of the Bill in any way, but it does give the Court a little more discretion in a matter which is of great importance.

Amendment moved— Page 2, line 26, after ("infant"') insert ("either").—(Lord Desborough.)

On Question, Amendment agreed to.

Amendment moved— Page 2, line 27, after ("support") insert ("or is a person whose consent ought in the opinion of the Court and in all the circumstances of the case to be dispensed with").—(Lord Desborough.)

On Question, Amendment agreed to.

LORD DESBOROUGH moved, at the end of subsection (4), to insert "or that the spouses have separated and are living apart and that the separation is likely to be permanent." The noble Lord said: The consent of both spouses is necessary under the Bill, but this is inserted to meet cases where the spouses have separated and are living apart, and the separation is likely to be permanent.

Amendment moved— Page 2, line 34, after ("consent") insert ("or that the spouses have separated and are living apart and that the separation is likely to be permanent").—(Lord Desborough.)

On Question, Amendment agreed to.

LORD BALFOUR OF BURLEIGH

Before leaving this Clause 1 should like to call attention to subsection (2), which provides:— An adoption order shall not be made in any case where the sole applicant is a male and the infant in respect of whom the application is made is a female unless the Court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order. I should like to ask whether the noble Lord does not think that the subsection as it stands casts a rather unnecessary slur upon the morals of the male sex. It seems to indicate that it is an exceptional matter for any man to want to adopt a child, except for immoral purposes. The whole object of the Bill is to safeguard the interests of the child and it leaves complete discretion to the Court, but in this subsection the Bill goes out of its way to declare that it must be exceptional for any man to want to adopt a child, or to happen to prefer to adopt a little girl rather than a little boy. I do not know whether the noble Lord is prepared to modify the subsection, or to omit it altogether, in view of the complete discretion given to the Court.

LORD DESBOROUGH

My Lords, the last thing which I want to do is to cast a slur upon the male sex. I do not think the office that I represent takes that view of the subsection, but if the noble Lord can insert, at a later stage, an Amendment to protect the sex, we shall be only too ready to give it every consideration.

Clause 2, as amended, agreed to.

Clause 3:

Matters with respect to which Court to be satisfied.

3. The Court before making an adoption order shall be satisfied—

  1. (a) that every person whose consent is necessary under this Act and whose consent is not dispensed with has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; and
  2. (b) that the order if made will be for the welfare of the infant, due consideration being for this purpose given to the wishes of the infant, having regard to the age and understanding of the infant; and
  3. (c) that the applicant has not received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption except such as the court may sanction.

LORD BALFOUR OF BURLEIGH moved, in paragraph (a), before "consented," to insert "by oral evidence or by affidavit." The noble Lord said: This is a small Amendment, but the point is not an unimportant one. As the Bill stands consent must be obtained from both parents of the child, and of course from the adoptive parents. That is, of course, perfectly right. The object of my Amendment is merely to make sure that the Court will have discretion to take the evidence of the real parents by affidavit. The point is that it is sometimes rather objectionable that the real parents should know where the child is going. I know that the Report of the Tomlin Committee on which the Bill is founded rather expressed doubt that secrecy was necessary and thought that objection would vanish when a legal right was given to the adoptive parent, but I do not think the objection does vanish, because already the adoptive parent has in certain cases a legal right; but harmful consequences might follow if the real parent got into touch with the child and worked upon its feelings, and perhaps asked for money, and so forth. If the clause were left as it is an undesirable precedent might arise, and the result would be that it would diminish the number of adoptions which would come under the Bill, and therefore irregular unofficial adoptions would continue, in which the safeguards provided in the Bill would not be found. I am informed that in South Australia the suggested clause works satisfactorily, and if the noble Lord is not able to put this Amendment into the Bill perhaps he will give an assurance that he can, in the Rules of Court, meet the point.

Amendment moved— Page 2, line 43, after ("has") insert ("by oral evidence or by affidavit").—(Lord Balfour of Burleigh.)

LORD DESBOROUGH

My noble friend by his Amendment wishes to introduce the practice of giving evidence by affidavit. I am afraid that my instructions are that the Home Office con-consider that the practice would be very objectionable. The object with which people appear before the Court is to enable the Judge, or other person who presides, to see the actual people and take their evidence. They need not necessarily meet each other. It is perfectly possible for the Judge to see them separately, and perhaps even privately. Therefore we consider that it would be ill-advised rather to incite people to give evidence by affidavit rather than in person. I think, however, I see a way out, in pursuance of the last remark of my noble friend. As your Lordships are aware, under this Bill Rules will be made—they will be made by the Lord Chancellor—for the guidance of the Court, and there will be nothing, either by Rule, or practice of Court or the discretion of the Judge, to prevent him from dispensing in certain cases with the presence of the witness and taking the evidence in writing. We do object to the Amendment very strongly, and do not want it to be placed in the Bill. I give the noble Lord every assurance, however, that as far as possible his wishes will be carried out wherever the facts of the case warrant it.

LORD BALFOUR OF BURLEIGH

I am much obliged to the noble Lord, and ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

THE EARL OF DENBIGH moved to leave out "and" at the end of paragraph (b) and to add the following new paragraph to the clause:— and (d) that where the infant is in the custody or under the guardianship of a public or local authority or body no objection on the ground that the applicant is not of the same religion as the infant is taken to such order by a person who in the opinion of the court is reasonably interested in taking such objection whether on the ground of natural relationship to the infant or as a minister of religion or otherwise.

The noble Earl said: The Amendment which stands in my name is not to be construed as being put forward in the interests of any one community, although I may say quite frankly that the Catholic community attaches a great deal of importance to it. When this Bill was in another place an Amendment was moved in somewhat different terms, and objection was taken to it in regard to its, perhaps, rather too one-sided character. The other day when this Bill was before your Lordships for Second Reading I drew attention to the matter, and intimated that I was going to put down an Amendment to this effect. I pointed out that the Amendment would be of a general nature and equally applicable to infants of all denominations. I am aware of the fact that in the High Court due regard would probably be had to this matter, and that every care would be taken that children of any particular denomination should be entrusted to people of the same denomination, but I am afraid that in many cases in the smaller courts of summary jurisdiction, where there might be a certain amount of jealousy and ill-feeling, the same kind of care might not be taken. Therefore we think that the words I have put down should be inserted in the Bill, in order to make the situation clear. I again wish to emphasise that the Amendment is of an entirely general nature. I am well aware that it is somewhat difficult to define a matter of this kind in the clause of a Statute, but I cannot see that any objection can be taken to the Amendment in the terms I have put down.

THE LORD CHAIRMAN

I understand the two Amendments of the noble Earl hang together.

THE EARL OF DENBIGH

Yes. The first is only a drafting Amendment.

Amendments moved—

Page 3, line 11, leave out ("and")

Page 3, line 17, at end insert ("and— "(d) that where the infant is in the custody or under the guardianship of a public or local authority or body no objection on the ground that the applicant is not of the same religion as the infant is taken to such order by a person who in the opinion of the court is reasonably interested in taking such objection whether on the ground of natural relationship to the infant or as a minister of religion or otherwise.")—(The Earl of Denbigh.)

LORD ASKWITH

I hope the noble Earl will not press this Amendment. If he does I shall be obliged to oppose it. The Amendment says that objection can be taken on the ground that the applicant is not of the same religion as the infant, and that objection may be taken by any one who in the opinion of the Court is reasonably interested in taking such objection, whether on the ground of natural relationship to the infant or otherwise. Surely that would allow any cantankerous relative to come forward and say that the child could not be adopted because he did not approve of the religion of the person who proposed the adoption. It would allow an atheist to say that he would not have the child put into any religion at all, or a person of the complexion of the famous Captain Kettle to say that the child was only to go into a particular nonconforming sect to which he belonged. In the same way a cantankerous person, either in the Catholic or the Protestant or in any of the Nonconformist churches, could come forward and stop the child from being adopted.

Supposing the natural relation does not come forward, there is an opportunity given under this proposed Amendment for any minister of religion to come forward and make an objection to the child being adopted. I think it would bring in a sort of test which would be of a most difficult and unpleasant character, and would have far-reaching effects possibly, which it would be well to avoid. I would also put my case upon the ground that under the Guardianship of Infants Bill there were two Joint Committees of both Houses where somewhat similar clauses were brought up with regard to the guardianship of infants, and the joint Committees by large majorities—I do not think they even went to a Division—decided that clauses of this test character should not be inserted in these Bills dealing with children, but that it should be left to be decided at the discretion of the Court what was the best for the child, and not bring in what was possibly a disputed religious question.

VISCOUNT HALDANE

I, too, think that this Amendment goes too far. The mere making of an objection is sufficient to prevent the Court from acting. The law as it stands at present is, I think, strong enough. Under the recent Act what is to be considered is not merely the old-fashioned rights of the parent, but what is most for the benefit of the infant, and the Court will take these things into account. It will take into account, if necessary, questions of religion. The religion of the infant is prima facie the religion of its father, but that is not any more binding on the Court. It can take what view it likes of what is for the benefit of the infant, and act accordingly. If this is put in, then any cantankerous person, as has been said, can prevent the Court acting, and I think it is very undesirable that matters should be left to such a state of contingency.

LORD DESBOROUGH

I find myself much more in agreement with the two noble Lords who have spoken last than I do with the mover of this Amendment, although I sympathise very strongly with his concern for the interests of religion. But surely the whole idea of this Bill is that in most cases the adopter and the adopted will come to some agreement, which would include religion, in which case this provision would be absolutely unnecessary. I quite agree also that it is a very great deal too wide. Almost anybody can make an objection under this proposal—not only ministers of religion, for I see in the Amendment the ominous words "or otherwise"—and it seems to me that any fanatic could stop the adoption of a child if the Amendment were passed. The child is fully protected because a guardian is appointed ad litem, and the question of religion is one which might well be left to the Courts, who will certainly have the interest of the child as one of their first objects in carrying out their duties. An Amendment was moved on the Report stage in another place in the interest of one particular religion, but, of course, it would be impossible to introduce provisions in such a Statute in the interests of a particular religion, although any religion, I admit, is better than none. I am afraid I cannot accept the Amendment.

THE EARL OF DENBIGH

Can the noble Lord give any undertaking that the matter will be dealt with by the Rules of the Lord Chancellor, so as to give full protection in this matter?

LORD DESBOROUGH

I would much rather the noble Earl asked the Lord Chancellor himself, but I have no doubt that this matter will be most seriously considered when the Rules are drawn up.

LORD SHANDON

I understand that the object of the Amendment is to deal with cases where a child has not any parents living, and is under the control and custody, say, of a board of guardians. There seems to me to be considerable difference between such a case and the general class of case with which the Bill was intended to deal. A board of guardians naturally only looks to the provision of a home for the child, and it would not be expected to look after the question of the child's religion in the same way that parents and relatives would. I do not say that the Amendment is very happily worded, but there is a distinction and a question that ought to be dealt with in the Bill.

THE EARL OF DENBIGH

I am afraid I was not able to catch the tenour of the noble Lord's remarks, owing to the unfortunate acoustic properties of your Lordships' House. I do demur, however, to what was said by the noble and learned Viscount opposite that the operation of this Amendment would unnecessarily block the Court, because the Amendment contains the words that the person making the objection "in the opinion of the Court is reasonably interested in taking such objection." A good deal would depend on the interpretation of the word "reasonably," but I should have thought that the Court would be able to deal with that.

VISCOUNT HALDANE

He may make an unreasonable objection, then the Court is paralysed.

THE EARL OF DENBIGH

But I do not see that it would hopelessly block it. I regret very much that the Government cannot adopt this Amendment, but I am willing to withdraw it after having brought the matter forward publicly. I only hope that the Home Office will represent the matter to the Lord Chancellor, and will represent also that it is the very earnest wish of a very large section of the community that this matter should not be lost sight of.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5:

Effect of adoption order.

5.—(1) Upon an adoption order being made all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock, and in respect of the same matters and in respect of the liability of a child to maintain its parents the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock:

Provided that in any case where two spouses are the adopters such spouses shall in respect of the matters aforesaid stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother respectively.

(2) An adoption order shall not deprive the adopted child of any right to or interest in property to which, but for the order, the child would have been entitled under any intestacy or under any will, settlement or other disposition, whether occurring or made before or after the making of the adoption order, or confer on the adopted child any right to or interest in property as a child of the adopter, and the expressions "child," "children" and "issue" where used in any instrument disposing of property whether made before or after the making of an adoption order, shall not, unless the contrary intention appears, include an adopted child or children or the issue of an adopted child.

LORD DESBOROUGH moved, in the proviso in subsection (1), after "aforesaid," to insert "and for the purpose of the jurisdiction of any court to make orders as to the custody and maintenance of end right of access to children." The noble Lord said: The Amendment gives the Court further powers of which. I hope your Lordships will approve.

Amendment moved— Page 3, line 40, after ("aforesaid") insert the said words.—(Lord Desborough.)

On Question, Amendment agreed to.

LORD DESBOROUGH moved, in subsection (2), to leave out "under any will, settlement or other". The noble Lord said: This is a drafting Amendment.

Amendment moved— Page 4, lines 6 and 7, leave out ("under any will, settlement or other").—(Lord Desborough.)

On Question, Amendment agreed to.

LORD DESBOROUGH

The next Amendment on the Paper is also purely drafting. I beg to move.

Amendment moved— Page 4, lines 11 and 12, leave out ("instrument disposing of property") and insert ("disposition").—(Lord Desborough.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Remaining clauses agreed to.

Schedule agreed to.