LORDS AMENDMENT (Hansard, 13 December 1949)

§ VISCOUNT SIMON
My Lords, I can dispose of what remains in this matter in a few minutes. Although the Commons Amendments in lieu of certain Amendments made in this House occupy more than two pages of print, they are, with one exception, nothing more than a recasting of what this House has already inserted in the Bill, and I have no doubt that the recasting is an improvement. As I took charge of the Bill in this House, it is enough for me to say that I hope your Lordships will accept the improved version, which no doubt has been drawn up with great care and skill and is much better than we were able to do in our amateur way in your Lordships' House.
There is one change, however, which is a change of substance. It is to be found on page 2 of the list of Commons Amendments. The proposed new subsection (4) provides that: While an application for an adoption order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant; and in considering whet her to grant or refuse such leave the court shall have regard to the welfare of the infant. That change is an attempt to find a compromise between two views, each of which have been followed by argument. For myself, and I think for all interested in the Bill, I am prepared to accept this proposal, and I would urge your Lordships to do the like. The effect of it is this. Thanks to this Bill, which I think is a great improvement on the present law, the mother of a child is not to be regarded as having indicated her consent to the child being adopted by others unless at least six weeks have elapsed since the birth of the child and unless, when she signs the document, it is attested by a justice of the peace and it is done in a proper form and at a 1511 proper date. That is a great reform. I am glad that this House was able to make it and that another place has accepted it.
But there is a difficulty of which we have all been conscious. Cases may arise where, after people adopting a child take the child into their custody, the mother withdraws the indication of her consent. The child itself may suffer. Subsection (4) proposes that if the mother has executed a document such as I have described, and if the people who have in mind to adopt the child have started proceedings to get an adoption order, then, though they will still remain free to reject the child until the adoption order is made, the mother shall not be free to claim to remove the infant in the interval before the court decides whether to make an adoption order; provided, however, that when the order is considered by the court the mother may come and there satisfy them that she wishes for good reasons to withdraw her child.
I think that is a reasonable arrangement to make, subject to one point, which I make to the noble and learned Viscount the Lord Chancellor, who has taken a great interest in this Bill, as I have. I can imagine a case in which this new provision might work unfairly unless care is taken. It would work unfairly if the people who have taken over the child and have it in their custody, and before the three months are up, which must elapse before they can get an adoption order, made an application for an adoption order merely to stop the mother from asking for the child back, without any intention on their own part really to get an adoption order. Therefore I would be grateful if the noble and learned Viscount would tell us whether he will accept this view. It would be intolerable if would-be adopters, by merely applying for an order and then not proceeding with the application, used subsection (4) to produce a situation in which the mother of a child was barred from getting, her child back without leave of the court, while the adopters remained free to change their mind. I feel sure it is not the intention to let that happen.
I accept that it is better for that situation to be met by rule rather than by 1512 any provision in the Statute, and I therefore shall be grateful if the noble and learned Viscount can give me an assurance that where an application for an adoption order has been made under subsection (4) the rules will be such as will secure that it is brought on for hearing without delay, once the three months probationary period has expired; and that, if those who have made an application for an adoption order do not pursue that application with reasonable promptitude—I understand there may be reasons why the court should adjourn the hearing for a time—subsection (4) shall not be allowed to give the would-be adopter freedom for an indefinite time to reject the child, though they have stopped the mother from claiming that the child should be returned to her. I believe that new rules will have to be made in any case for juvenile courts, for county courts and for the High Court. I recognise that in some of these cases the first thing that happens after an application has been filed is that a guardian is appointed ad litem.
I am anxious for an assurance that in drawing up new rules, care will be taken to secure that the proceedings thus started will be carried through with reasonable promptitude. I am sure the noble and learned Viscount wishes that to be done. Existing rules, both for the magistrates' court and the county court, might be said already to make a provision of this kind, though, as I have said, I think there will have to be new rules. I doubt whether there is at present any such provision in the High Court, because, generally speaking, if you start proceedings in the High Court you do not find that those proceedings are cancelled or struck out save on the application of the defendant, who goes to the court and says: "Here is this Writ hanging about; no one is taking any further steps, and I ask that it should be struck out." In cases like these we are dealing mostly with poor people and often mothers—sometimes illegitimate mothers, though not always—and it is not practicable to say that they may go to the court if they like. Therefore, I would like the Lord Chancellor to tell me—as I think he will be glad to do—in proper terms, that he will see to it that under the Bill (which I am glad is now to become an Act) this particular loophole will be stopped, in order that we 1513 may carry through this new and greatly improved procedure without doing an injustice to anybody.
I beg to move that this House do agree with the Commons Amendments which are before us—that applies to all of them—but I hope that before the Question is put my noble and learned friend will be able to give me the assurance for which I ask.

§ THE EARL OF IDDESLEIGH
My Lords, I rise to express the great reluctance with which I accept the new subsection (4). When the Bill left this House it was a completely balanced Bill. We protected equally the rights of the natural parent and the adopted parent. We ensured that the rights of the natural parent were not diminished up to the moment when the Adoption Order was finally made by the court. We then transferred those rights as completely as we could to the adopted parent. We now have an Amendment which diminishes the rights of the natural parent to change her mind with regard to the document which she has signed. If it was found necessary—I know there has been much pressure brought upon the Government on this matter—so to diminish the rights of the natural parent, I consider that there should also have been some diminution of the rights of the adopting parents to change their minds. I am well aware that grave harm is sometimes wrought to a child who is taken by adopting parents into their home and, being of an age to understand what is happening, gives to those would-be adopters love and confidence, and then (as happened in a case of which I have heard) the child, having been kept with the would-be adopters for a period of some weeks, is sent back because they say they do not like the child. I trust that not many years will pass before more comprehensive legislation on the whole subject of adoption will be promoted, and that what I have said will then receive consideration.

§ THE LORD CHANCELLOR
My Lords, I rise not to enter into the slight element of controversy which has just been voiced, or to express an opinion on it, but only to answer the question raised 1514 by the noble and learned Viscount, Lord Simon. As I understand him, he wants some assurance that when an application for an adoption order has been made, steps will be taken to see that it is brought on for hearing without delay once the three months' probationary period has expired and that unless this is done the application shall be struck out. I may say at once that I entirely agree with him that it would be intolerable for would-be adopters, by simply applying for an order and then not proceeding with their application, to use the machinery of sub-section (4) to produce a situation in which the mother would be barred from getting her child back without the leave of the court, while the adopters themselves remained free to change their minds for an unnecessarily long time. As the noble and learned Viscount pointed out, it is the fact that only in the county courts and in the magistrates' courts is there no possibility of an application being left on the file without it coming up for hearing at any early date. So far as the magistrates' courts are concerned—after all, it is there that four out of every five adoption cases are dealt with—the Rules already provide that as soon as the guardian ad litem has been appointed, a time for hearing is to he fixed, and the provisions of the Summary Jurisdiction Acts apply as if the proceedings were by way of complaint and summons. The effect of this is that if at the time fixed by the court for the hearing of the application the applicants do not wish to proceed and can show no reasonable ground for an adjournment, the court will automatically dismiss the application. The position is substantially the same in the county court.
I feel that we must leave a discretion in the courts to decide whether an application is being prosecuted with reasonable promptitude, and that it would be quite impracticable to lay down a hard and fast rule as to the date on which an application had to be heard and determined. Obviously, the nature of the inquiries to be made differs from case to case, and some cases may involve a little more delay than others. I feel that the noble and learned Viscount may rest assured that all the courts are well aware of the need for avoiding any delay in the hearing of these applications. I agree with him that new Rules will have 1515 to be made for the juvenile courts and the county courts and also, I think, for the High Court. I can assure the noble and learned Viscount that, when these Rules are made, the points he has raised will be carefully considered with a view to ensuring that it is not possible for would-be adopters to delay the hearing of their application. I hope that will satisfy the noble and learned Viscount and put his mind at rest on this problem.

§ VISCOUNT SIMON
I thank the Lord Chancellor very much.