§ 3.24 p.m.
§ Order of the Day for Second Reading read.
§ VISCOUNT SIMON
My Lords, I rise to move the Second Reading of the Adoption of Children Bill. This Bill was introduced in another place earlier this session by a private Member, Mr. Basil Nield, the Member for Chester, and after careful consideration in Committee and the assistance which was given by the Parliamentary Under-Secretary to the Home Office, it has come to this House in its present form. I hope very much that the House will approve giving the Bill a Second Reading and that we may soon take the Committee stage, in which it will be necessary to consider one or two provisions contained in the Bill and, it may be, to decide that certain Amendments and improvements can be made.
I must introduce the subject by telling your Lordships that our Common Law knows nothing of adoption of children by any legal process. Adoption, as a legal method of creating between a child and one who is not its natural parent what one might call a new family relationship, is quite unknown to our old traditional English law. It is a remarkable fact that it was less than a quarter of a century ago that Parliament thought it well to pass a Statute dealing with this very important subject. Before that happened there was a Committee, presided over by the late Mr. Alfred Hopkinson, and then there was a most important Committee, which was constituted and reported in 1925, presided over by the late Lord Tomlin. It was in consequence of that Report that the Act which is now the principal Act, and will continue to be the principal Act—the Adoption of Children Act, 1926—was passed. I may observe here, because it is a curious circumstance, that although our law and Statutes may define children in different ways, according to circumstances, for the purpose of the adoption of children a child is anybody who is unmarried and under twenty-one. That is the nature of a child in our adoption of children legislation. Since then there has been one amending Act which was carried just before the late war broke out, in July, 1939—namely, the Adoption of Children (Regulation) Act, 1939.
1060 In order to let your Lordships see how really important this new legislation has become, I may tell you that last year there were not far short of 20,000 cases of adoption under the Statute. I am not speaking, of course, of cases where a child was taken into another family to be cared for as a private arrangement, temporarily or even maybe permanently, without an adoption order being made by a court; I am speaking only of cases in which the adoption has been authorised and established by an adoption order made by a court of law. The present situation seems curiously elaborate, because there are adoption orders made by the magistrates in a juvenile court, adoption orders made in a county court by the county court judges, and adoption orders made by the High Court. All three bodies have a jurisdiction. Of the adoption orders last year, something like 14,000 were made by magistrates, something like 4,000 were made in county courts and a few hundreds were made in the High Court, where probably there were more important considerations connected with property than is usual in ordinary adoption cases.
I hope I do not delay your Lordships, and indeed I trust it may even assist those interested in this rather complicated subject if I venture, before I explain the clauses of the Bill, to put before your Lordships five general propositions which, as it seems to me, ought to govern this matter. I think they will be found to be fulfilled in the language of the Bill and I undertake what is frankly the very pleasant duty of putting this Bill before your Lordships, holding by these five propositions. The first and governing consideration always is what is best for the child in each individual case. That comes in front of everything else. Your Lordships will understand that although the majority of adoption orders are made with reference to illegitimate children there are also a great many adoption orders made in respect of children who have been born in wedlock. I fancy the proportion of illegitimate children cases is something like two out of three.
The second proposition which I would urge on the House is this. Adoption is all very well, but whenever it is reasonably possible the best thing for the child is to remain with its own mother. I believe that to be true, where it is reasonably possible, even in the case of the child 1061 of an unmarried mother. The natural relation of mother and child, with mutual affection and mutual responsibility, should be preserved, unless in the particular case there is sufficient reason for this to be broken by an adoption order. There are cases—the figures which I have just quoted show that there are many—in which it is better to break this natural relation by an adoption order made by the court, by which the court decrees that the natural mother gives up her child and hands it over to a well-selected adopter or adopters who wish to adopt it. I say "adopter or adopters," because a common case is that of a man and his wife who have no children, or who wish to adopt another child who will join the family along with the children that they have. That is the second proposition.
My third proposition is that an adoption order should not be made without careful consideration of all the circumstances, and it requires the consent, not only of the adopting party but of the natural parent as well. Obviously it would not be right for the natural parent of any child to find the child transferred to another family without the natural parent's consent. There are rare cases where the child is an abandoned child, whose mother has simply deserted it, where an adoption order has to be made without that consent. But, apart from that, the consent of the natural mother is essential.
My fourth proposition is this. I submit to the House that the natural parent's consent should not be given before the child is born. I believe this to be a most important social principle. Consider the case of an unmarried girl who finds she is going to have a baby. She is often distracted with anxiety or shame, or the reproach of her parents, or the risk of losing her employment As it seems to me, it is only after the child is born that maternal feelings arise and that she may bee in to realise that her child is precious to her. I believe it would be a most undesirable thing if we did not keep this consideration in mind. Therefore, I advance the proposition that the consent of the natural parent should not be given before the child is born. I think it follows that there must be a short interval, even after that; because even after her confinement she does need time to consider, soberly and objectively, whether after all she is capable of bringing up her 1062 child or whether she really wishes to give it up, and, generally what is the best course for the child.
The present Bill does not contain the provision, but if it commends itself to your Lordships in Committee, as I hope it may, I think we might well consider whether there should not be inserted a provision that the natural parent's consent ought not to be valid before, say, six weeks after the birth. Even then the handing over of the child to the proposed adopter or adopters—woich may, of course, take place before any adoption order has been finally made—must be provisional for a short time, for the adopting party after receiving the child may find that the experiment is not what was hoped; and, again, the natural mother may not realise how much she has lost until after the child has been provisionally handed over. Consequently, you will find in the Bill—I will refer to the clause in a moment—a provision that there ought to be a certain period which may be called an experimental period.
The last of my five propositions is this. After that experimental interval of, say, three months, during which the child has been in the hands of those who wish to adopt it, when the adoption order has been made by the court (and that is the crucial fact and the critical date) with the consent both of the natural mother and of the adopter, and of any other party interested, that decision must be absolutely final. From that time forward the adopted child must for all purposes pass into the family of the adopter; the child must treat the adopter as its true parent; and it must be treated by the adopter as the adopter's own child. It may seen hard, but it is necessary, that, once the adoption order has been made, in the discretion of the court, after the conditions which I have suggested have been complied with, then the natural parent shall cease to have any claim on the child or any relation with it.
All social workers who have devoted themselves with so much public spirit to this all-important subject will agree with me when I say that for practical reasons it is much better that the natural parent should not know who is the adopting parent. Any other course exposes those who have adopted the child, and taken it to their family and to their hearts, to living constantly under the fear 1063 that claims will afterwards be made against them. We cannot altogether ignore the fact that in some cases, especially if the child begins to have a certain earning capacity, it is possible for one kind of natural parent to make claims which are not justified, and against which the adopting parents are entitled to be protected. Let me make my meaning entirely clear—although this is more a social than a legal matter. I do not for one moment suggest that the child should be kept in ignorance of the fact that it has been adopted. It would be a short-sighted view of the matter that led the adopting parent to keep that a secret, for sooner or later the facts will come out, and unless the child, as it grows up, learns the truth, then when the disclosure occurs in after-years it comes as a shock. But my main proposal is that once the adoption order has been made under these necessary conditions—the court may, of course, postpone the decision if it thinks fit—the child should enter into the new family for all purposes and be henceforth treated, both in law and in its daily life, as a child of the new family, with the adopter or adopters as its parent or parents and with any children whom the adopters may have regarded as the adopted child's brothers or sisters.
I do not know whether I have adequately conveyed to the House my own feeling on this subject. Of course, the matter can be considered in Committee, but it is with those views in mind (which I think are shared by those who promoted this Bill in another place) that I ask your Lordships to give a Second Reading to the Bill now before you. I will briefly call attention to what is appropriate at this stage when I review the clauses of the Bill. Clause 1 removes doubts as to the validity of an adoption of an illegitimate child by either of its natural parents. Doubt has been expressed, for example, whether, under the existing law and subject to all the proper consents, the father of an illegitimate child can get an adoption order by which he adopts the child. Clause 2 is interesting because it contains conditions which I think will be generally approved. In point of fact, it replaces subsection (1) of Section 2 of the principal Act of 1926, as amended by Section 8 (1) of the Act of 1939. Your Lordships will notice in paragraph (a) the general principle laid down: first, that 1064 the adopter must be at least twenty-five years old—it would never do to allow people to adopt children when they themselves are of too young an age—and, secondly, that the adopter should be at least twenty-one years older than the infant which is adopted. There are two provisions, (b) and (c), which introduce a certain qualification. If the adopter is a relative of the infant—and "relative" is defined later in the Bill—then we suggest that the condition as to the adopter's age might well be that the adopter has reached the age of twenty-one. A third condition is that if the adopter is the mother or the natural father of the infant then these considerations about age shall not arise.
Clause 3 gives a clear indication of the main principle of the Bill. It is not entirely new, although it is expressed, I think, in better and clearer language and to some extent modifies the present law. The principle is this: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, or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant.Of course, that includes the provision that the natural mother must give consent. The proviso deals with the exceptional case which I have mentioned, where a mother may have abandoned the child and disappears. Subsection (2) of Clause 3 is one to which your Lordships will have to give close attention in Committee. I suppose one may say that that is probably the provision most likely to give rise to controversy. The point which I ask your Lordships to note now, without in any way forming an opinion on it, is this. Subsection (2) of Clause 3 contemplates that what is called a consent may be either given generally or, alternatively, may be given for adoption by a specified person.
I do not think I ought at this stage to delay the House by offering in detail the considerations on either side. I am disposed to think that if we do provide that consent can be given generally—that is to say, that the natural mother of the child may give the consent required by this clause, without mentioning the particular person who is to adopt the child—then it is the more necessary to secure that such consent is not given until after the child is born, because the 1065 last thing we would wish to do is to encourage the idea that, because a girl is in trouble, she is to be urged to sign away all interests in her unborn child without any sense of the responsibility which attaches to her, and without the opportunity of considering soberly and maturely what is the right thing for her to do when the child is born. On the other hand, in view of the fact that it is so important that the natural mother should be at arm's length from the people who ultimately adopt, there is a great deal to be said for the view that, under proper conditions and precautions and under good advice, cases may arise where a general consent is to be preferred. I say no more at the moment except to invite your Lordships to take interest in this Bill—and it is a most interesting Bill—when we come in Committee to consider that particular issue.
Clause 4 is a clause with a rather odd history for those acquainted with the law. There is at present, at any rate as part of the law expounded by this House, what is called the law in Russell v. Russell, which was a divorce case. It was then laid down by a majority, by this House, in its character as the supreme judicial tribunal, that a spouse may not give evidence which would bastardise a child born during the continuance of the marriage. The Lord Chancellor will correct me if I am wrong, but I believe that that proposition may come up to the House quite soon in another connection, and therefore I will say no more about it now. But it is felt that as regards the question which may sometimes arise: Who is or who is not the father of the child? It would be desirable, in this connection, at any rate, to repeal or set on one side what is called the rule in Russell v. Russell.
Clause 5 provides for that period of three months of which I spoke just now. If we are to prevent hasty or unsuitable adoptions it is necessary that the child should be in the care of the proposed adopters for a certain period before there is made the adoption order, which finally transfers the child to the new family. The adopters may find that the child is not, for physical and mental reasons, a child whom they can possibly take into the family, and they must be given a limited opportunity of showing that the experiment has not succeeded. Equally, I 1066 think, the mother of the child must be given time, after her child has moved into the care of others, to reflect on whether she really and truly wishes to part permanently with her child. The period must not be long, and the suggestion here is that it should be three months—with this very important addition in paragraph (b): that the welfare authority for the area must have been notified, three months before the date of the order, of the fact that the application is being made by the proposed adopters. That gives the welfare authority an opportunity in the interests of the community at large, of visiting the home and seeing how this experiment is working out and, therefore, of assisting in the ultimate solution.
I need not, I think, detain your Lordships to-day with Clause 6; we shall come to it in due course. Clause 7 is interesting to local authorities because it provides that for this purpose "local authority" means the council of any county or county borough. I content myself with saying that that provision will bring the present law about adoption into accord with the spirit of the Children Act which we passed last year. Clause 8 is also an interesting little clause, because the fact that a child has been adopted, even under an adoption order, does not now in itself change its citizenship. The provision, therefore, is made that where an adoption order is made in order to authorise adoption by a citizen of the United Kingdom and Colonies, then the child shall be regarded, from the date of the order, as a citizen of the United Kingdom and Colonies. I do not think there will be opposition to that.
Clause 9 deals with an extremely difficult and very important subject. If we are going to carry through my main principle that, subject to the fulfilment of these necessary conditions and precautions, the adoption order once made transfers the child finally and completely into the new family, then at once the question arises as to inheritance. Should the adopting parent die without making a will, will the property descend not merely for the benefit of any children born in wedlock but equally for the adopted child? I think it should; and Clause 9 provides therefor. But that is a question which we shall certainly have to consider. I have had the great advantage of con- 1067 ferring with those who are specially skilled in the matter. The Lord Chancellor kindly allowed me to discuss it with the very skilled draftsman who is available to help, even in the case of a private Bill. I also had the opportunity of discussing it with representatives of the Home Office—my old Department—where there is a section which takes special interest in the application of the adoption law.
I am not going to say anything about the advice I received, except to suggest that when we come to Clause 9, we ought to consider whether the same principle ought not to be applied to wills and settlements made after the date of the adoption order. As things stand at present, if a man adopts a child, with all due form, and gets an adoption order authorising the adoption, and if thereafter he makes a will, his property is divided amongst his children, but the adopted child gets nothing at all. It seems to me that that is wrong and that once a man has made his application to the court and, with the consent of everybody concerned, has got this child as a member of his own family and treated as such, if he desires to make a will leaving his property to his children that ought to include the adopted child or children. Of course, it is perfectly open to the testator to make an exception, if he wishes, by name; but the principle ought to be that the child is a member of the family and should be treated as such under the law of inheritance. That is a matter of difficulty and complexity to which we shall have to give thought in due time.
I do not know that I need delay your Lordships for long on the other provisions of the Bill. Clause 10 is, I think, one which can be understood, and it raises another rather difficult subject. Clause 11 was very much amended on Committee stage in another place and, I may say, amended with the assistance of the Home Office. I think it will be found to be more or less right. I have already suggested that in Clause 12 there is a new definition of "relative." That is really all I need say about it, except that although the Bill itself applies to Scotland, there is one clause which could not be applied to Scotland; and that is the one about inheritance. The law of Scotland on the subject of inheritance is 1068 in many respects quite different from ours, and because it would be difficult to fit it into this scheme Clause 9 does not extend to Scotland.
There is the Bill, my Lords. I believe that it has been drawn by people who have shown great skill, as well as great devotion in the handling of this all-important question. I have had the great advantage of advice from some who are deeply interested in the proper working of the system of legal adoption. I am confident that the alteration which this Bill makes will be regarded as important. Whilst on the Committee stage we must, of course, consider these matters carefully, I do not think it should take a very long time; I am sure we can do it in the course of part of an afternoon. With the good will of all who are interested in this subject I hope we may have the satisfaction of finding that even at a time when the Government and Parliament are greatly preoccupied and overburdened by immense public questions, both industrial and financial, it is yet possible in this Session—I trust even before we adjourn—to carry this little Bill into law and make the statutory rules better for those who are quite unable to plead for themselves, but whose future is none the less the future of the young citizens of our country. I beg to move.
§ Moved, That the Bill be now read 2a.—(Viscount Simon.)
§ 4.0 p.m.
§ VISCOUNT MAUGHAM
My Lords, if I may, I should like to be allowed to make a few remarks on this subject. It is one in which I have a big interest, inasmuch as when I was a High Court Judge in the Chancery Division I had to deal with adoption cases and take an interest in the orders that had to be made in such cases. I am anxious somewhat to modify one of the remarks that fell from the lips of the noble and learned Viscount, Lord Simon, because I fear that it might create a little misunderstanding as to the sort of cases with which the courts have to deal. I do not think that my noble and learned friend has paid enough attention, if he will allow me to say so with the greatest respect, to the section in the original Act of 1926, or to the clause in the Bill now before your Lordships, as to the power of the court to dispense with any consent of the parent or guardian—which, of course, includes 1069 the mother. The truth is that the most valuable part, as I believe, of this Act, which has now been in existence for twenty-three years, is the power that it gives to the court to take a child away from a wrong-doing mother—I will explain in a moment what I mean by "wrong-doing"—and to vest all her powers in the adopter.
Perhaps I need not tell your Lordships what can be done now, but in Clause 3, of this Bill there is a proviso which says:… the Court may dispense with any consent"—that is, consent of the parent or guardian or another which I need not mention—required by this subsection if it is satisfied—(a) in the case of a parent or guardian of the infant, that he"—he," of course, includes "she"—has abandoned, neglected or persistently ill-treated the infant;"—neglected" is the commonest offence; and(b) in the case of a person liable as aforesaid to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute.Sometimes the parent cannot contribute, but at any rate, if he neglects or refuses to do so that is a ground for dispensing with the consent. Then proviso (c) says—and this is the widest of all:in any case, that the person whose consent is required cannot be found, or is incapable of giving his consent or that his consent is unreasonably withheld.I am not sure that those words were in the mind of my noble and learned friend. It is just possible that for a moment it had slipped his memory how wide and important they are—and have been in the past. I have known instances where those adoption cases have taken a long time because a father or a mother who has gravely neglected the duties put upon him or her violently opposed an adoption order, although it had to be made. I know that such orders have often been made in the past and, if this Bill passes in this form, orders will be made in the future dispensing altogether with the consent of the father or the mother.
I want to say only one word about Clause 9. In my opinion, Clause 9 of the Bill is of the greatest value. Its provisions have been found to be so by nearly all the people who have been engaged in 1070 working the Act as it now exists. I have been in communication with one of the county court judges, Sir Gerald Hurst, who told me that he makes 500 adoption orders a year. He said that he takes the greatest interest in the difficulties that arise when the adopting parents die without having left a will, which he is convinced is, in nearly every case, contrary to their wishes. He points out to me—and it accords with my own experience—that the working classes—I will not call them the poorer classes because they are often quite well oil in these days—practically never make wills. They have an objection to wills. The consequence is that many of them die intestate. If there is a widow or a widower, practically the whole of his or her property goes to the surviving spouse. If the man has died, the widow receives £1,000 and the personal chattels belonging to the deceased. That would be so anyway. But if there is more money than that, or if there is not a spouse, it is important that the adopted child should be treated in the same way as the legitimate children of the adopter. Therefore, I am advised that those who are concerned with these matters are greatly in favour of Clause 9, so far as it goes.
I myself am not at all sure how we could deal with the cases of children in wills, still less in settlements. Of course, if the testator has an adopted child, it is impossible to say that the word has a different significance because he has been party to an adopting order. I do not say that with any conviction that I am right, and I should be glad to hear any argument in favour of the suggested Amendment which the noble and learned Viscount, Lord Simon, has adumbrated. I dare say, when we have heard it discussed, we shall conic more or less unanimously to the conviction that something ought to be done in this respect. It certainly ought to be done in one case that I can see—the case where the will has been made by an adopting parent and where there are no legitimate children to compete with the adopted child. There, it ought to be quite clear that the property goes to the adopted child; but whether or not there should be competition is, I think, more difficult. That is all I want to say except this: that I am wholeheartedly in favour of this Bill, and that those whom I have con- 1071 sulted are of the same opinion—namely, that it will fulfil a useful want and prevent a good deal of injustice.
§ 4.10 p.m.
THE LORD BISHOP OF ST. EDMUNDSBURY AND IPSWICH
My Lords, I am sorry to obtrude myself on your attention again to-day. I would hasten to assure the noble Viscount, Lord Caldecote, that I do not regard this as a "field day" for myself! First, I would like briefly to say that I was pleased to hear the noble and learned Viscount remark that it is the intention to try to secure provision in the Bill whereby the mother shall not be entitled to sign a consent order until the child is at least six weeks old. I have myself been in touch with a number of organisations and societies concerned with moral and child welfare. I know how very anxious the members of those societies all were that some such provision should be made. Suggestions have been made that the period should be even longer than six weeks. My own view, for what it is worth—and I am not wholly uninformed in these matters—is that six weeks would be long enough and, if that is so, I should have thought that that was desirable. I would like to pass on a suggestion which these various societies have made. I wholly agree, as of course they do, with what the noble and learned Viscount said in regard to the interests of the child coming first. On the other hand, one does not wish to neglect the interests of the mother, or indeed of the adopter. These various societies have suggested that, possibly by way of regulation, it should be laid down that when she signs the consent for the adoption, the mother's signature should be witnessed by a reputable person. I think that would safeguard her against any undue influence.
With regard to Clause 9, the various societies with whom I have been in contact were all immensely anxious that the adopted child should be put in precisely the same position as the natural child, and indeed that in regard to the whole matter it should be a case of contracting out rather than of contracting in. I hope that is plain. I also agree strongly with what the noble and learned Viscount has said, that it is of the first importance that unless the adopter himself so desires the parents should never 1072 know his identity. Therefore, so far as I am concerned, there is no objection to Clause 3 (a), as it stands. But I would like to suggest that before the mother signs the general consent it ought to be possible for certain conditions to be made qualifying the absoluteness of that signature. I think that in giving a general consent, the mother might quite reasonably wish to lay down certain conditions as to the religious training of the child. She might say that she agrees to the adoption but she wishes the child to go to a Methodist home, to a Church of England home, or to a Roman Catholic home. I do not know whether that would be included in the Bill, or would be dealt with by regulation. I should have thought it might be possible to include other qualfying conditions in regard to the adopter's circumstances, and so on. I do not think the mother ought to be expected or even permitted to give an absolutely blank cheque to the third party who is to arrange the adoption. There are a number of quite reputable adoption societies but I dare say she could give the consent to some private person or even a nursing home to arrange the adoption, and either of those bodies might or might not be reputable.
Finally (and this is a technical but small point), Clause 7 (2) lays down that every local authority has power to participate in making arrangements for the adoption of children. I understand that in the Curtis Report it was suggested that where one department of a local authority had taken such action it was very undesirable that some other department of the same authority should be appointed as guardian ad litem of the child, the ground being the obvious one, that difficulties might arise between the officers of the two departments. For instance, it would clearly be undesirable that the education committee of a council should be appointed guardian ad litem if the council itself had made the arrangements for the order. I do not wish it to be supposed that my whole attitude to the Bill is merely critical. I think I can say on behalf of the societies with whom I have been in touch that they very much welcome the Bill, though they think it might be improved on the lines which I have ventured to suggest.
§ 4.16 p.m.
§ LORD AMULREE
My Lords, I want to say a very few words in support of this Bill The matter has been gone into at some length by the noble and learned Viscount who moved the Second Reading, and I do not want at this particular time to go over any of the ground which has been covered so well by him. I would, however, like to make one or two general comments upon the measure. The first point which I am pleased to see is that the Bill makes it possible for a child who is not of British nationality by birth to be adopted in Britain. I think that is a valuable step forward. Many of us know of cases in the past where people have longed to adopt children of foreign nationality and have not found it to be possible. I think this does bring about a step forward. Further, the provision that the child so adopted is able to become a British subject seems to me to clear up a great many difficulties and to make the way generally very much simpler.
One matter which came to my mind in regard to this Bill was as to what are the essential criteria for the adoption of a child; and I came to much the same conclusion as that reached by the noble and learned Viscount, Lord Simon, which he put so clearly under five headings. Bat quite apart from the general reasons he put forward, when we come to talk about the question of specifying that it is not possible to adopt a child until it is six weeks old, that appears to contain a great deal of wisdom, both from the social point of view and from a medical point of view. Although it cannot be entirely implemented, it should be possible to try to ensure that the child is with its mother for as long as is humanly possible, although there are many cases where it is difficult—perhaps because the mother is not married or because she is living under trying conditions. But as long as the mother can give the child a certain amount of breast feeding and can take care of it, that is all to the good of the child.
The other point which we entirely agree upon is that under no condition should the real mother of the child know the name of the adopting parents. But I think that the mother has a right, if she wishes, to know a good deal about them. She should know what kind of job the man has; what kind of income he has, so that she can judge what sort of a place 1074 her child is going to. And I think she should know what is the particular doctrinal or religious feeling of the people adopting the child. That is a point I do not want to elaborate in great detail because I think there are one or two noble Lords who are ready to speak with more knowledge upon that point than myself. Another thing upon which I think we entirely agree is that no child should be adopted in vacuo. It is essential that a child should not be adopted until plans have been made for that child to go into a new home where it can be with its new parents right from the start. If we are to allow children to be adopted before a place is found for them it may turn out, certainly at present, that that child may fall under the care of the local authority. Although great attempts have been made to ensure that local authorities have proper institutions for children, quite often they are not able to provide proper facilities and even at the present time one finds a very large number of children being taken care of in what were called public assistance institutions, at least before July 5. One does not want to run any risk at all of children meeting that fate.
There are, of course, many reasons why a mother should not be able to sign away a child before birth, and these have already been gone into in some detail. I am sure that it is better for the child to be with the mother for the earliest part of its life, if possible—provided, of course, that the mother is not so completely depraved or so completely debauched, as to render that quite unthinkable.
A clause of the Bill about which I feel a trifle worried is Clause 10, in which it is sought to bring an adopted child within the prohibited degrees of consanguinity. I do not see how, by making a person into a relative in legal fashion by a stroke of the pen, you necessarily bring about the effect that is required. One may say that if a family adopts a child, then that child should be regarded, from a consanguinity point of view, as part of the family. Unfortunately, when you have people living together who are not part of the family, in the sense of being blood-relations, feelings may develop between different parties in the household. It is difficult to confine such matters within any legal terms relating to consanguinity. The tendency of the 1075 past has been to cut down the amount of prohibition in relation to consanguinity. We have had examples in the matter of legislation to permit marriage with a deceased wife's sister, or with a deceased husband's brother; and there was the attempt of the noble Lord, Lord Mancroft—which unfortunately did not get very far—to legalise marriage with a divorced wife's sister. That does seem to me to be the general tendency in the world at the present time, and I feel a certain amount of apprehension about this clause.
There is nothing further about which I need detain your Lordships, except that I would like to say how much I agree with the point that adoption must be designed and carried out always with a view to doing what is best for the child. That is linked up essentially with the matter of a parent's consent not being given before a child is born. As I have said, it is vital that the child should be under the care of its mother when possible while it is still at a very early age, rather than that it should be placed under the care of people who could not possibly deal with it in the same way as its mother could.
§ 4.24 p.m.
§ LORD HOLDEN
My Lords, perhaps I may be permitted to contribute a few sentences to welcome this Bill. I think it is a Bill which, like most other Bills that come to your Lordships' House, may be improved in Committee. I had not meant to speak on Clause 10 but, perhaps after what the noble Lord, Lord Amulree, has said with regard to it, I may say that I have had the benefit of discussing this matter with the noble and learned Viscount, Lord Simon, and I have also gone into it with such care as I can. It seems to me there is no reason for the noble Lord's apprehension. The clause certainly does not go contrary to any law of the Church to which I belong. I am sorry that the right reverend Prelate is no longer here, as I would have liked to hear the views of the Church of England expressed on this point. If a child is adopted, it should be regarded as part of the family and as coming within the laws of consanguinity.
By Clause 3, as your Lordships know, permission is given under certain circumstances to dispense with the consent 1076 of the natural parent. And I agree that that clause is vital to the Bill. The only thing I regret is that no mention is made of religion in the clause. All religious bodies—not merely that to which I belong—are anxious about this matter. I personally feel, and I think many others also feel, that however neglected—indeed, however maltreated—a child might be by its natural parent, that parent should still retain the right to say, when it is taken from her care, in what religious faith it shall be brought up. Many clergymen and social welfare workers have told me, and it is my own experience also, that even when some unfortunate individual has entirely abandoned not only the practice of religion but even the practice of leading an orderly life she may still wish to insist on her child being brought up in her own religion. I feel keenly about that point, and I regret that no provision in regard to it is made in the Bill. I hope that with your Lordships' consent I may be able to suggest an Amendment which will cover the point, both in Clause 3 and in the Schedule.
§ 4.28 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I would join with other noble Lords in welcoming this Bill as a very useful interim measure effecting a number of important reforms, some of which were recommended by the Curtis Commission. The Bill is not designed as, nor does it profess to be, a comprehensive measure integrating the adoption law with the general body of law affecting children, and it has been represented to me by some undoubtedly competent persons that there is need for such a large, comprehensive, integrating measure. That, however, must wait until the next Parliament. Here we can do no more than consider the effect of the reforms made by this Bill. I think we should be unwise to risk losing the Bill by embarking on too ambitious an attempt to make it a comprehensive measure.
It is perhaps unfortunate that the Bill has reached us at this late date in the Session. Had it come to your Lordships' House two months ago, you might have been wise to refer it to a Select Committee, with powers to hear evidence. That was an expedient which was sometimes adopted with great advantage before the war and I hope it will 1077 not lapse entirely into desuetude. But it is far too late now to consider doing anything of the kind, and we shall take the Bill, as usual, on the floor of the House. At the same time, I would take the opportunity of appealing in advance to whatever Government may be in power after the next General Election to bear in mind that it will be expedient to inquire further into the working of this and other adoption laws. In three or four years' time we shall have had a great deal of experience of adoption procedure and, what is perhaps more important still, we shall have had experience of the working of the Children Act. We shall know how far it is wise to add to the functions of the children officer, and we may be able to draft a better Adoption Bill after considering these factors. I need hardly suggest to the noble and learned Viscount, who is so great a codifier of the law, that it would be extremely advantageous if the Adoption Act could be codified so soon as circumstances will permit.
I have been supplied very courteously by the Home Office with figures showing the remarkable rise in the practice of adoption since it first became legally recognised in 1926. In 1927 there were 2,967 registered adoptions. The number rose fairly steadily and almost continuously until in 1939 it had reached the figure of 6,852. With the war and the many factors that broke up normal family life, the increase became very rapid indeed. In 1945, I think the last year taken into account by the Curtis Committee, it had reached a total of 16,357, and in 1946 had arrived at the surprising number of 21,280 registered adoptions. As the noble and learned Viscount, Lord Simon, has told the House, the number in the last two years has fallen to something over 18,000. But these figures relate only to registered adoptions, and at some time—though I do not think we can do it in this Bill—we shall have to consider what steps can be taken to discourage and prevent the very lamentable practice of illegal or extra-legal adoptions, which I believe to be extremely common. There are many instances that come under my own notice in which a woman, finding an unclaimed baby or a baby which it is wished to discard, has simply taken the child into her care and protection without any legal process whatever and has thereby 1078 avoided those abundant safeguards which the Adoption Act provides.
Again, I suggest we ought to consider whether we can do even more than this Bill does to discourage adoption by private individuals and not by registered societies. It was estimated by the Curtis Committee that of the registered adoptions in the years to which they were referring, something like three-quarters were effected through private agencies. These private arrangements, which are to some extent discouraged and to some extent regulated by this Bill, have this undesirable character: that they are carried out by people without any sociological experience and often without due consideration of that modern tendency in sociology, to which the noble and learned Viscount has referred—namely, to regard the natural mother as by far the best guardian for the infant. I hope the Bill will do something, and that Parliament in future will be able to do more, to ensure that the excellent and highly responsible registered adoption societies do more and that the sometimes irresponsible private agencies do less in this sphere of adoption.
In considering this Bill, we must beware the danger of making adoption too easy. I am sure your Lordships all agree that it will be a grave misfortune for this country if it becomes too easy for the unmarried mother to tree herself of her responsibilities. It has to be remembered that in this modern age conditions are such as to assist an unmarried mother in the admittedly difficult and uphill task of keeping her child. In the factories there are crèches and nurseries; there are child-minders, whose activities we took power to regulate very recently; and in the present-day shortage of domestic assistance it is often possible for an unmarried mother and her child to obtain a perfectly satisfactory position as a domestic worker in a household. We should bear in mind that, though it will never be an easy matter, it is somewhat easier to-day for the unmarried mother to fulfil her true responsibilities, to the infinite advantage of her child and to the building up of her own character.
Finally, I would draw your Lordships' attention to the fact that the principal Act gives ample power to the noble and learned Viscount the Lord Chancellor 1079 to regulate by rules and orders all matters arising in connection with adoption procedure. I would venture to make an appeal to the noble and learned Viscount to consider whether further rules and orders might not advantageously be made on this subject. I am informed that the procedure with regard to the granting of adoption orders varies astonishingly in different courts. I am told that there are some courts which insist on actually confronting adopters with the natural parents, with the result, which several noble Lords have pointed out is undesirable, that the identity of the adopters becomes known to the natural parents. If I am correctly informed, I am sure I may rely on the noble and learned Viscount taking into consideration the advisability of effecting by order some form in this matter and securing a greater degree of uniformity in the courts.
§ 4.40 p.m.
§ VISCOUNT CALDECOTE
My Lords, your Lordships will be accusing me of having a "field day" myself! I am afraid this is the second time I have spoken to-day, and I must apologise for it. I would like to add my support to this Bill, which goes a long way towards improving the present law governing the adoption of children. However, as the noble and learned Viscount, Lord Simon, indicated, there are several ways in which this Bill can be improved before it leaves your Lordships' House. It is with this object in view that I beg leave to make a few remarks on the Bill, which remarks have the support of one of the most respected adoption societies. Clause 1 (2) allows British adopters to adopt any foreign child—that is to say, any person up to the age of twenty-one. It seems to me that this will result in a real danger that undesirable aliens may get into this country and become British subjects by virtue of Clause 8 of the Bill, much more easily than they would if they had to go through the normal process of naturalisation. The danger could be avoided by putting an upper limit on the age of any foreign child which could be adopted. That would also have the advantage that the foreign child would grow up in a British atmosphere and would, therefore, be more likely to settle down to a happy life in this country.
1080 The objections to Clause 3 (2) have already been dealt with by the noble and learned Viscount, Lord Simon. As was pointed out in another place, these objections to the giving of a general consent to adoption carry most weight when the adoption is not arranged through a registered society, because these societies take great trouble to make sure that the home and child are mutually suitable. The question whether the parents should be told the name and address of the adopters is, surely, a difficult one. Some noble Lords have taken the view that certainly the parents should not know that much about the adopters. But, surely, the parents may very properly want to know all that can be known about the new home to which their child is going. I realise that that raises all the undesirable difficulties of the parents calling to see the adopted child. But those difficulties can be overcome and are being overcome by the adoption societies by making most careful inquiries and giving to the parents all possible information about the adopters' home, situation and religion, and everything that can possibly be given, without actually giving the adopter's name and address. I am sure that is the right way of doing it.
The difficult problem of the length of the probationary period raised in Clause 5 was also fully discussed in another place. It is, again, the problem of deciding between the conflicting claims of the parents and the adopters. How long must the parent be given to decide irrevocably for or against adoption? It is the experience of one adoption society that the number of cases where a mother has asked for her child back during the probationary period is very, very small indeed. I believe this is another beneficial result of the great care that is taken by these societies in arranging adoption. In other cases, when adoptions are arranged by third parties, or, in some cases, but by no means all, where they are arranged by local authorities, there have been difficulties, and one has heard heartrending stories of children being taken from the adopted parents after two or three months. The immense trouble that is taken by these societies to make sure that the adoption is satisfactory to child, parent and adopters inevitably makes the process a good deal slower than it is if the adoption is arranged by 1081 other means. It is, I am afraid, this very thoroughness of the adoption societies that makes so many parents go elsewhere for the arrangement of the adoption.
It is no light responsibility to place a child for life with those who are to become its parents. I believe we should have as our aim a state of affairs where all adoptions are carried out by registered adoption societies, or by local authorities who have adequate staffs as experienced and painstaking as those provided by the best adoption societies. This Bill takes us a step nearer to that ideal. However, I personally would like to see some provision in Clause 7—which inter alia gives local authorities definite power to make adoption arrangements—to ensure that before they embark on such heavy responsibilities they should have properly trained staff for carrying out this difficult and delicate work. There is one other point, not covered by the Bill, which I would like to mention. Section 2 (5) of the Act of 1926 prohibits, amongst others, persons from the Dominions from adopting children in this country. I believe that legal adoption exists in many of the Dominions. I submit that it is very desirable that Dominion subjects should be able to adopt children in this country in cases where legal adoption exists in their own country. I hope I have not been unduly critical of this Bill, for I most sincerely believe it is a real step forward, and we owe a great debt to the promoter of this measure.
§ 4.47 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, this Private Member's Bill was introduced by a well-known Conservative Member in another place and was blessed by the Under-Secretary for the Home Department. Therefore, one may fairly say that it is not in any sense a Party measure. I rise to say in only a few sentences that I think it is a good Bill. I do not mean by that that it is a perfect Bill. Obviously we must examine it in Committee and see to what extent we can improve it by amendment. But, in broad lines, I think it is a very good Bill. I entirely agree with the noble and learned Viscount who moved the Second Reading that the important thing is to see that the consent of the natural parent is a real consent. We must see that she is not compelled to give that consent by force of circumstances; 1082 that she is not bullied or harried into it, but that she gives a mature consent, as a solemn act. I confess that when I first read the Bill I did not realise that it was possible under it for a consent to be given before the child was born. I thought that Clause 3, where it refers to the parents or guardians, and the maintenance of the infant, and so on, prevented that. I believe it is right that we should make it quite clear that there should not be any possibility of that being done. No woman should be asked for a consent when she is in the stress and turmoil which inevitably accompanies events of this sort. Her consent, as I have said, must be freely given, and it must be a solemn act. With regard to the suggestion of the noble and learned Viscount that consent should not be given for six weeks after birth, that may be quite right, but I would like to consider it. I would like to sec whether we should add the six weeks to the three months laid down in Clause 5. I think the three months' period is designed primarily to see that the adopters are suitable persons, and that they are matched with the child.
§ VISCOUNT SIMON
Of course, the three months does not date from the birth of the child.
§ THE LORD CHANCELLOR
No. I think we might consider whether the six weeks should be taken out of the three months, or whether the three months should be added to the six weeks. That is a point of detail.
The other point, with which I entirely agree, is that once we have that consent given as a real consent, and as a solemn act, then I think that consent should be final. I have had not a little experience of this, both in my professional and in my private life, and I have come to this very definite conclusion. Although we have to secure the consent of the natural mother, and although she can give or withhold her consent, obviously she has the right to attach what conditions she likes. She may want to know the particular person. If I were advising a particular person who contemplated adoption, I should always advise him never to adopt a child if his name had to be revealed to the natural mother. I think it was said by the last two speakers that this is where the adoption societies can come in and do such valuable work—and they are doing most valuable 1083 work. If the natural mother wants to be reassured, she can get all the reassurance she wants if she is dealing with a reputable and an honest society. They can explain to her all the circumstances and every other detail, short of the name of the adopter. I believe that that is the right solution.
Then, if the adoption order is duly made, I agree with the noble and learned Viscount that the child should become for all purposes a member of the new family, and should be treated, to the extent we can make it, as a member of that family so far as the law of inheritance and the law of wills is concerned. The child has moved from one family into another family, a conception which, as the noble Viscount said, is unknown to our law, but which was not uncommon in the Roman law. That leads me to say a word on consanguinity. I am speaking for myself about this matter; I do not know what the view of the Home Office is. After all, if the child is to be made, as it were, a real member of the new family. I should have thought there was something to be said for the consanguinity rule.
Let us take the case of a youngish couple of twenty-five to thirty, who adopt a child. The child grows up and perhaps the wife dies, leaving the husband alone with the child. Surely, it is undesirable that he should be placed in the position where he could even contemplate marriage with that child. Should not the child be treated as if it had been a natural child of his own? I say that that idea would be quite impossible. I have known not only one, but several cases, where parents have adopted both a boy and a girl. I do not think the clause does so, but I would throw out for consideration whether the corollary of what we are doing ought not to be that that boy and that girl become brother and sister in the ordinary way, so that the natural home life which happens in a normal family—the greater intimacy between brother and sister which takes place—should take place in this family. I express no opinion on these matters, but that seems to me a matter which merits your Lordships' consideration.
I think the point made by the noble Viscount, Lord Caldecote, about adopting foreign children, and being able to 1084 do that up to the age of twenty-one—he suggested there might be a younger age—is again a point which merits consideration. From all quarters of the House various suggestions have been thrown out which will, I have no doubt, be carefully examined; but everybody has approved the broad issue of this Bill. Everybody has given it a blessing, and I do not doubt that your Lordships will give it a Second Reading, as the Government desire that you should. With regard to consolidation and my rule-making power, I certainly would regard this Bill as a candidate for consolidation, but I should like to know how far we reach any sort of finality. If we are going to have another Bill in a few years' time, as is not improbable, then I think I had better wait until I get that other Bill before I consolidate this one, otherwise I shall have thrown that one away. Certainly in so far as it lies with me, I will look at my rule-making power and, in the light of discussion on the Committee stage, I will consider whether there is anything more I should do with regard to that power. I say no more except that I give this Bill my blessing.
§ 4.56 p.m.
§ VISCOUNT SIMON
My Lords, there is other important business to be done in the House this afternoon and noble Lords are waiting for it, so I will say only two or three words before the question is put. I am sure that everybody who is interested in getting this Bill on the Statute Book must be very pleased at the general welcome it has received in the debate this afternoon. The reason why the debate has gone to the length of time it has is not really because people take objection to the Bill, but because the subject itself is such an extremely interesting subject, the legislation for which every good citizen would like to see framed in the best possible way. I am particularly grateful for what has been said by the Lord Chancellor, and it is great encouragement, I am sure, to all those who are trying to put the Bill on the Statute Book this Session to know that it has the complete good will of the Lord Chancellor, as I know it has of the Home Office.
My noble and learned friend Lord Maugham made some observations, referring to his experience in the High Court. Perhaps I might say in a sentence 1085 that I really did know the contents of Clause 3(1) and the provisos (a), (b) and (c). I had read them, and I had even considered them, but perhaps I may observe that they are put in really because, since my noble and learned friend was a judge of the High Court, dealing as he was with these matters, there has been a decision which seems to imply that the court may dispense with consent in any case. That was so wide that it was thought desirable—and the Home Office agree—to redefine the conditions rather more narrowly, the object being to put down conditions which ought to be treated as exceptional in the interests of the child rather than for any other purpose. I do not think we shall have any difference about that at all, and I need not say how glad I am that my noble and learned friend, with his great experience, should approve the Bill.
The right reverend Prelate made some most useful observations. I would agree with him—and I think the Lord Chancellor agrees also—that it would be as well to have the consent of the natural parent in a form which is solemnly made before a responsible party. I quite accept what the Lord Chancellor said, that, if you read the Bill, you will see that really the only consent that is required of the parent is after the child is born. I did not misunderstand that. But the point is that, essentially in a case of a girl who perhaps has been taken in circumstances of anxiety and distress, there is a form which, at some time or another, she has to sign. What one wants to avoid is that she should put her signature to the form before the child is born. No doubt, having given the signature, it is operative only after the child is born; but if we provide that she cannot make a valid signature except by a proper authority, say six weeks after the birth, that problem would be solved. If you are going to take a right, proportionate view you must remember that by far the greater number of adoption orders are procured without the intervention of an adoption society—only about a quarter, I think, are provided by the adoption authority. I entirely agree with what was said by the noble Viscount, Lord Caldecote, that it is desirable to do everything we can to encourage the reputable adoption societies and discourage the private and informal promotion of adoption orders. I should not myself lay that down in this 1086 Bill, but I think some such clause will help.
The subject of general consent I shall not seek to discuss now. It is a very difficult point—perhaps the most difficult in the Bill. I should have thought it was right to contemplate, and if necessary to provide in the Bill, that while the natural parent cannot be required to give general consent she would give it subject to such conditions as she was disposed to agree to—for example, that the child is adopted into a home where her own religious opinions (which she would naturally wish to be inculcated) are held or respected, and other conditions of that sort. In practice, when the cases are dealt with by a good adoption society I entirely confirm what has been said by one noble Lord, that immense trouble is taken to get a suitable selection; and while, so far as possible, the name of the adopter is not put prominently forward, the adopting society always take the greatest care to see that the natural mother is assured that the sort of home to which the child is going is the sort of home of which she would approve. I rather doubt whether, as the law stands at present, it is correct to say that the natural parent has not the opportunity of knowing the name and address of the persons who wish to adopt. That is one reason why I thought we might later consider the subject of a more general consent.
I do not think there is anything else with which I need trouble your Lordships. I am grateful for what the noble Earl, Lord Iddesleigh, said—and, indeed, for what every noble Lord said. I think all of us want to get this Bill on the Statute Book this Session; and therefore, while of course we must all consider everything which we feel is of value, we must not pull this Bill about too much. We must insert on the Committee stage, if we think it right, a certain number of adjustments or changes which will make it work better, but we shall lose the Bill altogether if we treat it as a vehicle for carrying into effect all our ideas. For my own part I shall therefore hope to exercise a severe economy, and I am sure every noble Lord who is interested will do the same. I shall suggest only two or three Amendments which I think are generally approved, and which I believe could be adopted without any great delay.
1087 Let me end on a purely practical note. As the present programme of Business appears on the Paper for July 21, the first Business to be taken is the Committee stage of the Married Women (Maintenance) Bill. I believe that the only points of doubt in that Bill arise on Clause 7, and that they can be disposed of in a very few minutes; I am not aware of anything else that might cause controversy. If that is so, perhaps it would be possible for those who arrange our Business to put the Committee stage of this Bill as the second item on July 21. If so, I believe that in the course of the afternoon we might achieve something useful and feel that we had a reasonable chance of the Bill's reaching the Statute Book before the end of the Session.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.