HL Deb 21 July 1949 vol 164 cc356-84

6.0 p.m.

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

Moved, That the House do now resolve itself into Committee.—(Viscount Simon.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 1:

Scope of power to make adoption orders

1.—(1) It is hereby declared that the power to make adoption orders conferred by the Adoption of Children Act, 1926 (hereinafter referred to as "the principal Act"), includes and has always included power to make an adoption order authorising the adoption of an illegitimate infant by the mother or natural father of the infant, either alone or jointly with the spouse of the mother or natural father.

VISCOUNT SIMON moved, in subsection (1) to omit all words from and including "illegitimate" down to the end of the subsection, and to insert: infant by the mother or father or natural father of the infant, either alone or jointly with her or his spouse, in any case where the adopter or, as the case may be, either of the joint adopters has not, in relation to the infant, all the rights, duties, obligations and liabilities of the parent of a legitimate infant. The noble and learned Viscount said: The Marshalled List of Amendments to be moved in Committee may look a little formidable, but I think it will be found that perhaps there are only two really serious points which the Committee will wish to consider in detail: the other matters are really matters of improved drafting. I am glad that indication has been given that we are taking only the Committee stage to-day, because we shall have an opportunity of looking at the Bill reprinted, if we alter it in Committee, before we give a final decision.

This Amendment is nothing more than an expression in better form of what is desired, which is to remove the doubt at present existing as to whether the mother or the person whom I may call the natural father of an illegitimate child can adopt it. Those who are acquainted with this corner of the law will know that the mother of an illegitimate child has not all the rights over it which attach to the father of a legitimate child. Cases have arisen where it has been thought desirable that the natural mother of such an infant should take proceedings to obtain an order from a court to make it her adopted child in the fullest sense and to establish the relationship between herself and the infant which would exist if the child had been born in lawful wedlock. By inserting words to allow a mother or natural father of an illegitimate child to adopt it the draftsman was a little afraid he might throw doubt on whether the mother or father of a legitimate child can adopt it. That also is possible in certain circumstances. There might be the case of a child which is the subject of an adoption order, and, therefore, part of the family of the adopter, which subsequently, for good reason and with the consent of everybody concerned, returns to the family from which it originally came, These are little more than formal matters. I have looked at the amended words with care, and I had the great advantage of a most careful check by the accomplished draftsman that the noble and learned Viscount the Lord Chancellor was good enough to put at my disposal. I am certain that this Amendment should he made, though in fact it is little more than formal. I beg to Move.

Amendment moved— Page 1, line 9, leave out from ("an") to end of line 11, and insert the said new words.—(Viscount Simon.)

THE LORD CHANCELLOR

The noble and learned Viscount has been in touch with the Parliamentary draftsman and, at my suggestion, with the Home Office, and is better able than I am to say what their views are. I have had them only indirectly and he has had them face to face. I am prepared to accept this Amendment.

VISCOUNT MAUGHAM

The Amendment is perfectly right in substance, but it is difficult to understand. More than one noble Lord to-day has come up to me and said, "Why say 'or father or natural father'?" They have been considering the case of the illegitimate child. I put it to the noble and learned Viscount, would it not be well, in so intimate a kind of legislation as this, even at the expense of a few more words, to use language which nobody can doubt? It seems to me that what is wanted to make the matter clear are some words like these: or mother or father of an infant being illegitimate or the mother or father of a legitimate child. It is a small alteration, but it expresses what I myself find are difficult words to understand.

VISCOUNT SIMON

I thank the noble and learned Viscount. Anything he suggests on tills sort of subject one wishes to consider with care. If he will agree that we put in this Amendment as I have moved it, I will undertake to look into it further and, if he will allow me, to confer with him on the subject.

VISCOUNT MAUGHAM

I could not suggest anything more than that.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Restrictions on making of adoption orders]:

VISNOUNT SIMON

This Amendment is consequential. I beg to move.

Amendment moved— Page 2, line 3, after ("or") insert ("father or").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3:

Consent to adoption

(2) Any consent required by this section for the making of an adoption order may be given whether or not an application for such an order is pending and may be given either generally in respect of the adoption of the infant or only in respect of the adoption of the infant by a specified person; and where any such consent is given generally as aforesaid by any person and is subsequently withdrawn, after the making of an application for an adoption order, on the ground only that he does not know the identity of the proposed adopter, his consent shall be deemed for the purposes of the last foregoing subsection to be unreasonably withheld.

VISCOUNT SIMON moved, in subsection (2) to omit all words from the commencement down to "on the ground only" and to insert: Subject to the following provisions of this section, any consent required by this section for the making of an adoption order may be given either before or after an application has been made for the order; but the consent of the mother of the infant shall be of no effect for the purposes of this section if given earlier than six weeks after the birth of the infant. () Any consent given for the purposes of this section after the making of an application for an adoption order may be given (subject to such conditions, if any, as may be specified therein with respect to the religious persuasion in which the infant is to be brought up) in respect of any order which may he made in pursuance of the application, and shall be valid notwithstanding that the identity of the applicant is not specified in the consent or known to the consenting party; and where a consent so given by any person is subsequently withdrawn.

The noble Viscount said: This is a clause which undoubtedly deserves careful consideration. It is drafted in a form slightly different from the form in the Bill, and perhaps I may be allowed to say, especially after what my noble and learned friend the Lord Chancellor has just observed, that a great deal of pains have been taken by the draftsman, by representatives of the approved societies and of the London County Council, who sent two gentlemen to see me, and, may I add, by myself, to put it in a form which may be right. I think I may best serve the House if I make a short statement, which I trust will be worth considering when it appears in the OFFICIAL REPORT.

Clause 3, deals with consents which are required as conditions of making adoption orders. The clause begins: An adoption order shall not be made except with the consent… Once an adoption order is made, whether by a juvenile court, which is much the commonest case, or by a county court, or occasionally by the High Court, the infant passes irrevocably into the family of the adopter. After that, neither the adopter nor the natural mother can revoke what has been done; that is the final step. As I conceive it—and, indeed, the noble and learned Viscount the Lord Chancellor expressed the same thought on Second Reading—what we are endeavouring to do by this Bill is to improve the law so as to make the transfer of such as infant a real transfer to the new family. That is the nature of the consent with which Clause 3 is dealing.

But a certain confusion has arisen in some minds because of a different kind of consent—what I may perhaps call an assent—which is not the consent needed for the adoption order. In practice, when a child is put in the hands of a would-be adopter—which as your Lordships will see from Clause 5 must be for at least three months before the adoption order is made—there is a preliminary assent or agreement which is sought and is obtained—namely, an assent from the natural mother. Of course, people who would like to adopt a child and are prepared to welcome it and make it part of their own home would not be willing to do so unless they were at least assured that before the child was put into their care the natural mother was willing that that should be done. That is really a preliminary and informal expression of consent, but it is not the consent that is dealt with in Clause 3 of the Bill, as your Lordships will see if you look at subsection (1).

I will give two examples, because I have been at some pains to understand the way in which the thing really works. Yesterday I had the advantage of receiving two officials of the London County Council, specially detailed to see me because they wanted to be sure that the Bill in this respect was right. They went away quite satisfied. They explained to me that the London County Council would not place a child that is being taken care of with would-be adopters without first ascertaining that the mother of the child—if she were available—wished her child to be adopted. The London County Council authorities—to take that example, which is a very good one—ask the mother to give her written consent to what I may call a placing. If she says: "I do not want my child adopted," they will not offer the child to anybody to take into their home to see if it will lead to an adoption. If she says: "Yes; I think my child is a child that ought to be adopted, and I should like it to be adopted," and she signs the form which they have, which indicates that wish, then they feel they can put the child in the hands of the would-be adopter for the purpose of seeing whether they have made a good arrangement. Those two consents, as your Lordships see, are quite different things. It is only the consent which is needed for an adoption order to be made that is dealt with in this clause.

I said I would give two examples. That is the London County Council example. I will now take the practice of the adoption societies, which I have been at pains to ascertain with the help of some of the ladies and others who are devoted to this work. A registered adoption society is actually required by the present law—by regulations made under Section 4 of the Act of 1939—before it places the child under the care of people who might like to adopt it, to explain to the mother the effect of adoption, to explain to her what would be the result if it led to the making of an adoption order, arid to get from her a signed document showing that she understands what adoption is and that she wishes her child to be placed in the care of such a would-be adopter. Your Lordships therefore see that these preliminary arrangements—this preliminary assent—go very far to settling the whole matter, if the thing is wisely handled. Yet, when the time comes for the proposed adopter to go to the court and say: "I apply for an adoption order, the effect of which will he to move this child into my family for all purposes," then there has to be the written consent such as is required under Clause 3. That is the way in which it works. If I have made it plain to your Lordships, you will see that it is necessary that it should work in that way.

What the amended clause proposes is that the written assent which should be given for the purposes of the adoption order may be of one of two kinds. It may be the mother's consent that the named applicant—the individual whom she knows, because she has been given his name and address—should adopt the child in the fullest sense of the word under the adoption order. But there is a second alternative which needs to be carefully considered. For the purposes of the adoption order, the consent may also be the mother's consent that the order may be made without her naming the particular adopter. One is what may be called a particular consent, and the other is a general consent. It is highly desirable in most cases that the natural mother should not know who the adopter is, or where to find the adopter, once the adoption order is made. We are doing this primarily in the interests of the child; nothing conies in front of that. All experience goes to show, and the advice I have received from all quarters is, that as a rule it is a great advantage if the natural mother, who feels that she should surrender her child to an adopter, does not know who the person is. It is better for the child. better for the mother and better for everybody.

It is not always so, because I happen to know that there are parts of the country where there may be two workmen's families living in the same street, one of which is blessed with nine or ten children and the other of which is childless. It may be that the childless couple will openly say to their neighbours: "We should like to adopt such and such a child of yours." The neighbours may then say: "We should like that to be so." In that case, of course, they would know who was adopting the child, and you would not dream of asking for what I may call a general form of consent. But there are cases where it is needed, and it greatly helps the attainment of this most important result: that the natural mother, when she finally gives up her child, should feel that she has no further contact with it. However, if that is to be done, it is necessary to attach strict conditions, because if strict conditions are not attached to what I may call a general consent, then the natural mother may in some cases be tempted recklessly to sign away her responsibilities without caring what happens. That is a bad thing all round, and none of us would wish to encourage that sort of mother.

Therefore, in this amended clause—which is far from being all my work, but is the result of a great deal of consultation with people who have considered the subject—two conditions are attached. The first is a condition which applies both to the consent for a particular person to adopt and also to the general consent. It is a provision which is quite new. For either consent to be valid it must be made before a justice of the peace, dated on the date at which the consent is so signed, and it must be made not earlier than six weeks after the mother's confinement. Your Lordships appreciate the reason—I mentioned it on Second Reading. A girl who finds she is going to have a baby, especially if she is not married, is often thrown into the greatest sense of distraction about what is to become of her. Will her people disown her? Will she lose her job? Very often, before the child is born there is a strong temptation for her to feel: "After all, the great thing is to get rid of my baby." Of course, she cannot give a valid consent until she actually becomes a parent, but I am sorry to say that there have been cases where a form has been signed by the girl in her distracted state, before the baby is born, and such a form of consent might be used after the baby is born.

I submit to the Committee that it is most important—and I think everybody who has considered this subject agrees—to lay down that no consent given by the mother should be valid unless the child has been born, and unless six weeks have elapsed, because in the week or two after confinement many a young mother is not master of her judgment. With regard to what I have called the general consent—that the child may be the subject of an adoption order so far as the natural mother is concerned, though she does not know the name of the person who is to adopt it—what is suggested here is that a second condition ought also to be fulfilled. The mother's consent may be subject to a condition with respect to the religious persuasion in which the infant is to be brought up (which seems to be plainly right); and, further, a general consent is not to be given save in respect of an application which is pending before the court. Otherwise, this matter may be floating about for a long time, and the consent is not given sufficiently with reference to an application which has been made.

I have occupied rather a long time on this Amendment because I know that many of your Lordships are keenly interested in the question. It is very important that we decide this point correctly. I hope that the Committee will agree that it is right to put in this Amendment, and I should be grateful if noble Lords would study what I have put down—I have prepared my Amendment with as much care as I can, and I believe it to be watertight. I have had the advantage of discussing it with many people, including Home Office representatives, and subject always of course to further consideration (which I have no doubt some would like to give it) I respectfully suggest that this is the right way to deal with this matter. I believe that it will bring about a substantial improvement in the law. It will stop cases which are quite shocking, where a girl may lightheartedly give her signature before she has had time to reflect. It is only after the birth of the child that the maternal instinct may arise, and she must be given time to think what is meant by giving up that child. On the other hand, the Amendment helps the important object that once the adoption order is made the natural mother is parted from the child and does not haunt the home of the adopters who have taken over the responsibility and added the child to their own family. I beg to move.

Amendment moved— Page 2, line 21, leave out from beginning to ("on") in line 28 and insert the said new words.—(Viscount Simon.)

6.25 p.m.

VISCOUNT MAUGHAM

I have only one suggestion to make for the consideration of my noble and learned friend; otherwise, so far as I understand them, I entirely agree with the proposals contained in the Amendment. The suggestion is with regard to the question of religious persuasion, which very much interested the House when this matter was before us at an earlier stage. In the ordinary case there would be nobody to see that the provision as to the religious persuasion designated by the parent as a condition of the adoption was being properly carried out. There is a great difficulty, because the real mother has lost sight of her child altogether. What I would suggest is this: that there should be added further words to say that if the adopting person is of a religious persuasion different from that suggested by the mother of the child, the adopting person shall be required at the time to give an undertaking so far as possible to carry out the condition which has been made. That would make some difference, because an undertaking is regarded as binding. This particular clause does not possess an undertaking at all. I am only putting this forward for the consideration of my noble and learned friend; otherwise I have no objection to the suggested Amendment.

THE LORD BISHOP OF SHEFFIELD

I should like to take this opportunity of saying from these Benches how grateful we are to the noble and learned Viscount, Lord Simon, for the trouble he has taken in this matter in consulting all the various people concerned with this problem. We are grateful for the form which this Amendment takes. We particularly approve the emphasis on a lapse of six weeks after the birth before the mother makes a decision in the matter. As the noble and learned Viscount said, very often the maternity instinct is aroused after the birth of the child. We are also anxious that so far as possible the mother's wishes with regard to religious persuasion should be met. I do not know whether the point just made by the noble and learned Viscount, Lord Maugham, could be considered. In a sense, that would strengthen the position, from our point of view. But I rise merely to say that we approve the Amendment and are most grateful.

6.28 p.m.

THE LORD CHANCELLOR

I confess that find this a very difficult clause to understand, Indeed, I had not really understood it at all until the noble and learned Viscount gave his very clear explanation of it. I think I may understand it better when I have had a chance of reading the Bill quietly and carefully with these new words in it, but even now I confess that I am a little puzzled—no doubt from lack of knowledge of the subject. I would like to consider this for a moment. Clause 3 deals, of course, with consent to adoption. We are now told, if I read the first limb of the Amendment correctly, that consent to adoption may be given before or after an application has been made. That is the same consent, if I understand it aright, as is dealt with in subsection (1) of Clause 3. The consent may not be given within the six weeks and I entirely agree with the right reverend Prelate that that safeguard is most valuable. Such a consent will be a real one; any consent given in less than six weeks would be a nullity.

Let us consider this case. Supposing the parent gives the consent two months after the birth—which is out of the six-weeks period—what happens? Under Clause 5, to which we are coming in a moment, an adoption order shall not be made in the case of any infant unless the requirements of paragraphs (a) and (b) have been fulfilled. But that clause, as drafted, says nothing about any consent. Such consent as is there necessary is to be derived from the earlier Act. Section 3 of that Act provides that before making an adoption order the court should be satisfied that every person whose consent is necessary has consented. I want to try to get my mind clear on this point. When the court comes to make an order under Clause 5—the child having been for three consecutive months in the custody of the adopting parents—and finds that the adopting parents are proper people, has the court at that stage to be satisfied that the natural parent is then consenting? Or is it enough for the court that the parent had consented two months after the birth of the child? The Act seems to me at present to be ambiguous, and I think on this issue there a rises a very important question. It is a question on which I have no definite views, because I have not sufficient knowledge of the matter. I do not know whether it is right or not, but, of course, the longer the power of the natural parent to withdraw consent is extended the more uncertain becomes the tenure, so to speak, of the adopting parents. It seems to me—though, as I say, I hake not formed a definite view—that that is a matter of the first moment.

In this Bill, so far as we can, I think we ought to make it quite plain whether or not the court, when it comes to operate after the conditions of Clause 5 have been complied with, must be satisfied that at this moment of time the parent is still in a consenting mood—whether consent still operates—or whether it is enough to say, "The parent did consent; here it is in writing, signed by a justice of the peace, given two months after the birth of the child." I do not think the Act of 1926 is entirely clear on this point; the matter is left in a rather ambiguous state. I am not saying this by way of criticism, but simply that the point may be considered because it is one of great importance.

VISCOUNT SIMON

I am greatly obliged to the noble and learned Viscount. He has put with admirable clearness a point which does arise here. I also have been concerned to find out how that matter stood. There are just one or two things which perhaps I may be permitted to mention, though I appreciate that the noble and learned Viscount is not opposing the Amendment. The first point is this. Under the law as it stands, the Adoption of Children Act, 1926, there are forms which are made under the authority of the Lord Chancellor.

THE LORD CHANCELLOR

I ought to know about them, but I do not.

VISCOUNT SIMON

I should be surprised if any Lord Chancellor knew all about every form he had authorised—let alone forms authorised by a predecessor. The form of application for an adoption order states, first, that the parents of the child now reside at such-and-such an address; and then it goes on: "Their written consent to the making of the adoption order is appended hereto." The actual practice—at any rate in the county courts; it is not quite the same in other courts—is for the written consent to be appended. I conceive that the court which has a discretion to make the order will be to some extent guided by how long ago consent was given; whether consent had been obtained in the circumstances which the Lord Chancellor mentioned, and whether reasonable expedition had been used. I think they would be entitled to presume, unless there were evidence to the contrary, that the mother had not changed her mind within a short interval. But after a longer interval the court could say, "We should like to be more sure than we are."

Sometimes there arises a case in which the mother comes before the court and gives her assent in the face of the court. Then the welfare authority—which I am glad to say we now have in every local area—are, by the very terms of this Bill, required to regard it as a duty to notice that there is a child in the hands of people who propose adopting it. They have the fullest opportunity to discharge faithfully that duty of finding out what the circumstances are. It is sometimes the case that a woman genuinely consents to her child being adopted and to herself being treated as having finally and irrevocably signed away all interest in the child, either at that moment or within a very short time afterwards. But cases have arisen where the mother, in her distress, has signed away the child, and then the father of the child has turned up and said to the woman, "I never knew that you were in this plight. I love you, and I want to marry you. Will you marry me?" If these two parties then marry, by that merciful provision which recently became law the child born of these two before the marriage becomes their legitimate child. Therefore, I could never consent to depriving the mother completely of the opportunity of changing her mind within a certain period. Once the adoption order is made, it is a different matter. If the adopting parents make application for an order as soon as the law allows—that is to say, three months after they have had the custody of the child—the order would presumably be made. I think that principle will, to a large extent, be found to be observed in the present Amendment. I am grateful to the noble and learned Viscount on the Woolsack for his suggestion.

On Question, Amendment agreed to.

VISCOUNT SIMON

This is a drafting Amendment. Perhaps I may be allowed to draw your Lordships' attention to a misprint in the first line of the Amendment; the word "section" should be "subsection." I beg to move the Amendment in that form.

Amendment moved— Page 2, line 30, leave out ("the last foregoing subsection") and insert ("this section.")—(Viscount Simon.)

On Question, Amendment agreed to.

6.39 p.m.

VISCOUNT SIMON had given notice of an Amendment, after subsection (2) to insert as a new subsection: () Provision shall be made by rules under section eight of the principal Act for securing that any consent given for the purposes of this section otherwise than before the court which makes an adoption order shall be given in writing, in such form as may be prescribed by the rules, and signed, upon the date upon which it purports to be given, in the presence of a justice of the peace.

The noble Viscount said: This is a very important Amendment, as the Lord Chancellor has said, and I think it will be generally accepted. The mother is not to be treated as giving a valid consent unless it has been made before a justice of the peace and signed on the date on which it purports to be given. The Amendment as at present printed says: Provision shall be made by rules under section eight of the principal Act for securing that any consent given for the purposes of this section otherwise than before the court … and so on. One of the consents sometimes needed is the consent of the local authority, and I think it must be made plain that here "consent" refers to consent by the mother of the infant. With the Committee's permission I would like to move the Amendment in a slightly different form, including, after "consent given" the words: by the mother of the infant. The London County Council themselves for certain purposes by Statute take the place of the parent. The London County Council usually execute these things under seal. It is absurd, of course, to say that they must also go before a justice of the peace. We really mean that the consent of the mother should be given in this case. I beg to move my Amendment in the amended form, which I think your Lordships will agree is right.

Amendment moved—

Page 2, line 31, at end insert— () Provision shall be made by rules under section eight of the principal Act for securing that any consent given by the mother of the infant for the purposes of this section otherwise than before the court which makes an adoption order shall be given in writing, in such form as may be prescribed by the rules, and signed, upon the date upon which it purports to be given, in the presence of a justice of the peace."—(Viscount Simon.)

THE LORD CHANCELLOR

Would there be anybody in loco parentis? If the mother had died, it might be the aunt. The person needed is someone in the position of the mother?

VISCOUNT SIMON

Yes. May I just consult the draftsmen further about that? It is apparently connected with the importance of the mother, who has been through the pangs of childbirth, actually making a true decision formally before a justice of the peace, before she signs a piece of paper. I agree it would be worth considering in relation to the cases of other individuals. May I look at it and consult my advisers?

THE LORD CHANCELLOR

Let us take this Amendment in its amended form now, and then let us consider whether that is quite right.

On Question, Amendment agreed to.

LORD DARWEN moved, after subsection (2) to insert: ("(3) A consent given for the purposes of this section shall not be withdrawn after the expiration of six weeks from the date on which it is given.") The noble Lord said: In moving this Amendment, I recognise clearly that it deals with an extremely difficult question. We have to consider, first of all, the mother, the strain that she has gone through and the probability, as the noble and learned Viscount has suggested, of changes occurring in her situation which will make her wish to withdraw her consent; and yet we have also to consider the position of the adopters. I think it is entirely a question of trying to do the best we can to hold the balance between the two.

I am not wedded to the words of this Amendment; nor am I wedded to the length of time stated. What I feel is important is that there should be a definite term to the suspense which is necessarily hanging over the adopters. The period that it takes to make order may vary from four months, say, to almost any length of time. There have been cases where the adopters have been held up over a very long perioi—I had one such case only yesterday, which had occasioned something very near to a nervous breakdown on the part of the woman concerned. It hung over her for six months beyond the three months' period as to whether or not this child, which had found its way into her heart, was to he torn from her. I think we have to consider the adopters. I feel it is important that there should be a definite period in which the mother has power still to withdraw her consent. While I feel there are great difficulties in the way, I hope the Committee will agree that there should be such a definite limit to that period of suspense on the part of the adopters. I beg to move.

Amendment moved— Page 2, line 31, at end insert the said subsection.—(Lord Darwen.)

VISCOUNT SIMON

The noble Lord has raised a very important question. If I may say so, he has done so in a most admirable way, because he has recognised that we have here to try to reconcile considerations on either side. I, too, have thought a great deal about this, and have consulted those who have helped me. There is just one thing which I venture to think the noble Lord has not mentioned, and it of value. By Clause 5 the infant must have been continuously in the care and possession of what I will call the would-be adopter for three months preceding the application for the adoption order. That is plainly right, because it means, amongst other things, that during that experimental period the would-be adopter can reject the child and send the child back. There have been cases I have heard of in which the child has turned out to be, for some reason or other, wholly unsatisfactory—perhaps showing signs of lunacy or some other serious defect—and beyond any question the good people who wanted to adopt the child are certainly entitled to say: "We must return this child." They may do so during this period of three months which is necessary in the experimental period.

On the other hand, it is for the adopter to apply for an adoption order. The noble Lord said that there were chances and changes about these things. There always are. The fact is that if, after three months of the care of the child, the adopters really desire to have the child into their home as an adopted child by an adoption order, they have only to apply to have an adoption order made. Normally, the adoption order will be made and from that moment the natural mother has no right whatever to claim the child back. The case that the noble Lord mentions is undoubtedly one that does arise and it is a most distressing case. Childless people may get a baby in their care and decide that they would like to keep it; they grow desperately fond of it, and yet there is a period when it may be taken back. That is also the period when they may reject it.

It has been pointed out to me by the Home Office that, if we do say that the natural mother is debarred from claiming the child back at a moment when the would-be adopters can reject it, what is to happen to the child? It will simply come on the rates, because the mother cannot claim it back. Nobody wants to increase the number of children in that most unhappy state. Therefore, those who have helped me about this have thought this question over very carefully, and their advice to me is—and I must say I see the force of it—that if this matter is well handled by the adoption societies, or by a great authority like the London County Council, they never attempt to do this without carefully advising the mother and assuring her of the good home to which the child has gone; and in effect they carry the day. Rarely does the mother claim the child back. But our case is where the child does not satisfy, as I instanced just now. Therefore, while I will most gladly consider further whether anything should be done, I hope my noble friend will realise that these are important considerations which must also be met. I ask him to withdraw his Amendment.

LORD DARWEN

I am much obliged to the noble and learned Viscount. I hope that the matter will be further considered before the next stage of the Bill, because I think it is very important. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4 agreed to.

Clause 5:

VISCOUNT SIMON

This is a formal and obvious provision. I beg to move.

Amendment moved—

Page 3, line 27, at end insert— ("() Any notice under this section may be served by post.")—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clauses 6 to 8 agreed to.

Clause 9 [Effects of adoption orders in relation to intestacy of adopters and adopted persons]:

6.51 p.m.

VISCOUNT SIMON moved to delete Clause 9 and to insert two new clauses dealing with the treatment of adopted persons as children of the adopters for purposes of intestacies, wills and settlements. The noble and learned Viscount said: This is the other point of substantial importance in the Bill, and though the clause printed on the Marshalled List may look formidable the draftsman has prefaced it by a statement of the sort I very much like in legislation, which explains what it is all about. You will observe that the first subsection says this: The provisions of this and the next following section shall have effect for securing that adopted persons are treated as children of the adopters for the purposes of the devolution or disposal of real and personal property. As the Bill left the Commons, a provision to this effect had already been included, but it dealt only with the case of intestacy—that is to say, if a man and his wife had adopted a child and added it to their family, and then the man died intestate and subsequently his wife dies and the property goes to his children, the word "children" in such a case would include the adopted child. At this moment that is not so, and I am told that there are people who made wills or believed in other ways that their property would go to the adopted child, share and share alike, together with their own children. That is not so at all. I do not feel any doubt that what the other place did about intestacy was right. But if we are really going to say that once the child has been adopted under an adoption order and it has been transferred to the new family, the original, natural mother passes out of the case, then there is a very strong argument for saying that the principle that "children" includes an adopted child should apply not only in the case of intestacy but also in the case of wills made by the adopter after the date of the adoption.

Once you come to put it down on paper it has a very elaborate air, but I can only say that to the best of my understanding it is well done here. Subsection (2) deals with intestacy in these words: Where, at any time of the making of an adoption order the adopter or the adopted person or any other person dies intestate in respect of any real or personal property then the adopted child is to be treated as a child born in wedlock. Then comes a more complicated matter. Subsection (3) says this: In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of the adoption order"— then "children" in the document include the adopted child. In the same way we must make it work that way round if the will is the will not of the adopter but of the mother who has given up the child. Her will, of course, will not confer her property on the child with whom she has parted. You cannot give the child the benefit of a claim on both funds.

Subsection (4) is one of some interest to the Committee because there are cases in which property is attached to a dignity. No one suggests that because a man has adopted a child, property which is essentially attached to the dignity should go Ito the adopted child, any more than that if any of your Lordships had an adopted child and an only child, the adopted child would, by heredity, become a member of your Lordships' House. That is not suggested. Subsection (4) deals with that point. I think the rest of the clause is intelligible, and the details are more particularly worked out in Clause 10, which I shall move formally because it all goes together, and I think it will be found that the way in which it is expressed is accurate. There is one amendment to the language which is suggested to me by the draftsman. It is at the top of page 3. Paragraph (b) at present commences in this way: any reference (whether express or implied) to the child or children of the adopted person's natural parents or either of them … and I think that from there it would run better in this way: shall be construed as not being or as not including a reference to the adopted person. That is a rather clearer way of expressing the idea. The English law of devolution of property is complicated, and if we are going to use it at all it has to be done at this length. There are others who know more about it than I, bat I think it will he found to work out very well. I have some very high authorities behind me who have been good enough to look at it. I would add that this relates only to England and Wales. It cannot relate to Scotland because the law of heredity in Scotland is very different. It may have to be considered at some date, but we could not take it upon ourselves to make this change in regard to Scotland. I beg to move.

Amendment moved—

Leave out Clause 9 and insert the following new clauses—

Treatment of adopted persons as children of adopters for purposes of intestacies, wills and settlements.

9.—(1) The provisions of this and the next following section shall have effect for securing that adopted persons are treated as children of the adopters for the purposes of the devolution or disposal of real and personal property.

(2) Where, at any time after the making of an adoption order the adopter or the adopted person or any other person dies intestate in respect of any real or personal property (other than property subject to an entailed interest under a disposition made before the date of the adoption order) that property shall devolve in all respects as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person.

(3) In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order—

  1. (a) any reference (whether express or implied) to the child or children of the adopter shall be construed as, or as including, a reference to the adopted person;
  2. (b) any reference (whether express or implied) to the child or children of the adopted person's natural parents or either of them shall be construed as not being or as not including, a reference to the adopted person; and
  3. (c) any reference (whether express or implied) to a person related to the adopted person in any degree shall be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person,
unless the contrary intention appears.

(4) Where under any disposition any real or personal property or any interest in such property is limited (whether subject to any preceding limitation or charge or not) in such a way that it would, apart from this section, devolve (as nearly as the law permits) along with a dignity or title of honour, then, whether or not the disposition contains an express reference to the dignity or title of honour, and whether or not the property or some interest in the property may in some event become severed therefrom, nothing in this section shall operate to sever the property or any interest therein from the dignity, but the property or interest shall devolve in all respects as if this section had not been enacted.

(5) References in this section to an adoption order shall be construed as including references to an adoption order made before the date of the commencement of this Act; but nothing in this section shall affect the devolution of any property on the intestacy of a person who died before that date, or any disposition made before that date.

Provisions supplementary to s. 9.

10.—(1) For the purposes of the application of the Administration of Estates Act, 1925, to the devolution of any property in accordance with the provisions of the last foregoing section, and for the purposes of the construction of any such disposition as is mentioned in that section, an adopted person shall be deemed to be related to any other person being the child or adopted child of the adopter or (in the case of a joint adoption) of either of the adopters—

  1. (a) where he or she was adopted by two spouses jointly, and that other person is the child or adopted child of both of them, as brother or sister of the whole blood;
  2. (b) in any other case, as brother or sister of the half-blood.

(2) Notwithstanding any rule of law, a disposition made by will or codicil executed before the date of an adoption order shall not be treated for the purposes of the last foregoing section as made after that date by reason only that the will or codicil is confirmed by a codicil executed after that date.

(3) Notwithstanding anything in the last foregoing section, trustees or personal representatives may convey or distribute any real or personal property to or among the persons entitled thereto, without having ascertained that no adoption order has been made by virtue of which any person is or may be entitled to any interest therein, and shall not be liable to any such person of whose claim they have not had notice at the time of the conveyance or distribution; but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person, other than a purchaser, who may have received it.

(4) Where an adoption order (as defined by the last foregoing section) is made in respect of a person who has been previously adopted, the previous adoption shall be disregarded for the purposes of that section in relation to the devolution of any property on the death of a person dying intestate after the date of the subsequent adoption order and in relation to any disposition of property made after that date.

(5) Subsection (2) of section five of the principal Act is hereby repealed.")—

(Viscount Simon.)

VISCOUNT MAUGHAM

I am in some trouble about this Amendment and the course which I am going to ask the Committee to allow me to take will save time. Having considered this clause or a clause to this effect which was suggested to me about a month ago, I am of opinion that subsection (2) with regard to intestacy is quite right and just. I think that if the adopted person dies intestate, his property ought to go to the child, if there is one adopted child, and if he has children of his own they must share equally. With regard to that I feel little difficulty, because the adopting person whose property we are considering has not taken the trouble to make a will. He could easily do something different. But if he has done anything different, it is the duty of the Legislature so far as possible to ensure that his property shall go where he wished it to go, and where in nine cases out of ten it would go. That is the principle on which we work.

Then we come to something in regard to which I am probably not a very good judge because I began life as a conveyancer and I am accustomed to the laws of property of this country, and particularly the way in which we construe wills. To my mind it is quite a different idea from the idea of disposing of property on an intestacy, to step in and say that in future in a case where there are any adopted children a will is to be construed in a different way from that which the testator may have intended, in a different way from what the courts would have said was its meaning immediately before the Bill came into force, and in some cases in a way which would be quite contrary to the wishes of the testator.

VISCOUNT SIMON

Would my noble and learned friend forgive me? I very much value his observations, but might I draw his attention to page 2, the fourth line from the bottom, where these words appear: after the date of an adoption order. There is no proposal to alter the construction or the effect of any will made before the date of the adoption order. We limit ourselves entirely to such wills as are made after the adoption order. May I also call attention to the words which appear in the first new clause, just after paragraphs (b) and (c): unless the contrary intention appears That means that once a man has obtained an adoption order which makes a child his child, if after that he makes a will and says in it: "I give my property to be shared among my children" it is to be taken as meaning "including my adopted child." If he has a contrary intention he will say so, using words to the effect that he leaves his property to his children excluding the adopted child.

VISCOUNT MAUGHAM

I hope I shall not be thought to be a bad-tempered person, but I do not think my noble and learned friend was called upon to intervene. I was quite aware of the facts which he has just mentioned, and I was going to allude to them myself. I said nothing contrary to that which he says is the effect here. Of course a contrary intention might be made clear, and it would govern the whole question. I was going to put the concrete case (there are many others which could be cited but I select this one) of a man who adopts a child, and his wife, perhaps, dies and he marries again. We will suppose that he then has two children who are his own children, and for whom, of course, he has naturally a great affection. His adopted child, meantime, may have reached an age for going out into the world, may have left the home of the adopter and may have gone to live in a Dominion or somewhere else a long way away. In such circumstances it is quite probable that the relations between the adopting parent and the adopted child may become very faint after the lapse of time. The man then makes a will and leaves all his property "to my children." I do not think I am wrong in saying what I believe to be quite obvious—and it has been laid down again and again—that reference to children in a will means legitimate children.

The result of inserting the Amendment would be that we should be altering the fact that the courts say that "children" in the absence of context indicating otherwise, means legitimate children: we are saying: "it includes an adopted child." That, I think, is clear. I could give a number of other illustrations, but it is fairly reasonable to assume that we should be defeating in some cases the intention of the testator who might, at the time of making his will, have no desire to benefit an adopted child at all, but who, if he did have such a desire, could easily include in the will the phrase "my adopted child." There is the point. I think my noble and learned friend is wrong in thinking that any clause to which he has drawn attention meets that case. It does not do so at all.

It is a fact, as I started by saying, that this Bill alters the true construction of wills according to the views that have been held in courts for hundreds of years. Is there a conclusive argument for so doing? I do not think so. I think we ought to consider with great care whether, in certain cases, we wish to alter the construction of a will. I do not think it would be wise for this Committee, with the not very large attendance which we have to-night—indeed I think it would be very unwise—to decide a matter which is really a question of principle. A short time ago, we heard my noble and learned friend Lord Simon inveighing against the impropriety of retrospective legislation. It is just as bad to alter a man's will contrary, it may be, to his intention by Act of Parliament. That is a point which has to be considered. It would be a precedent and it might be followed by other cases. I am not now prepared to express a final opinion upon it, and I do not think the Committee, as now constituted, ought to express any final opinion to-day. All I do is to give notice that in my belief there is a definite point of great importance in the administration of the law to be considered; and that point, I think, ought to be raised on a future occasion.

I shall endeavour if I can—though I know I shall have some difficulty in doing so—to find out what other noble Lords (particularly some of my old colleagues who are sitting daily in the House of Lords) may think about this matter. If I find that most people whom I consult think it right in such cases, even in the extreme case I have put of an adopted child having disappeared almost from the mind of the testator, to include the child as a person designated under the will I shall not move an Amendment. But, if I may respectfully say so, I desire an opportunity of consulting with other lawyers, people who are accustomed to dealing with matters of this sort, to see (whether they agree with me that the matter is very doubtful or whether they do not. I agree with the clause as regards intestacy. As regards the rest, let us treat the Amendment as going through but with clear notice that it may be that I shall fight with all the force at my command the part of the Amendment which I have indicated.

LORD CAWLEY

In such an Assembly as this I feel that it is rather venturesome for me to ask a question. It may sound a silly question, but I hope the noble and learned Viscount will not think it so. The question I wish to ask is this: does the clause as drafted make it clear that this provision applies only to the will of the adopter or his wife, and that it would not affect, say, the will of a father and mother who might say that they left their property to the children of their daughters Alice and Jane, shall we say, or whatever their names might be?

VISCOUNT SIMON

I will not continue the debate but would like to say how grateful I am to the noble and learned Viscount, Lord Maugham, for his observations. Before dealing with them, may I answer the question which the noble Lord, Lord Cawley, has just put to me? The answer is that it does not apply to any will that is not made after the date of the adoption order. Any will made before that date is not affected at all.

May I now say a few words with regard to what the noble and learned Viscount, Lord Maugham, has said. I am sorry that I interrupted him unnecessarily. I thought from the language that he was using at the beginning of his remarks that he might not have observed the limitation that this applies only to wills made after the date of an adoption order. I was mistaken in thinking that, and I apologise to the noble and learned Viscount. It is quite clear, of course, that it would be the height of nonsense to say that there is anything retrospective about this. It is entirely in respect of wills made in the future. I am not referring necessarily to wealthy persons who consult solicitors and draw up elaborate wills. I take the simple case of a man who has adopted a child and who for every purpose counts that child as one of his own children. When he comes to make a will he says: "I want my property to be shared among my children." Which is the better view to take—to say that it has been the law that when a man says "children" he means only legitimate children?

VISCOUNT MAUGHAM

I do not want to argue it, but there is a complete answer to that.

VISCOUNT SIMON

I am only saying that that is the sort of case that appeals to me. I am sure that in most cases when a man says "children," he really means children that call him father, live in his home and are members of his own family, though as the law stands, as my noble and learned friend explained, he may desire that and say that but the adopted child gets nothing. It is purely a question of which is the better rule of the two: whether, if we say "children," we do not mean to include adopted child; or whether, if we say "children" in a will after adopting a child, we do mean to include the adopted child.

LORD KERSHAW

All adopted children are not illegitimate children, are they?

LORD DARWEN

I should like to support this Amendment. I know nothing at all about the law, but there is a real psychological reason for supporting this Amendment. At all times it is difficult to weld an adopted child into a family where there are other children. It is difficult to make an adopted child feel it is really a part of the family, and I think the mere fact that it was differentiated against in the law would make a difference to it after it grows up. Therefore, I hope this Amendment will be carried.

On Question, Amendment agreed to.

Clause 10 agreed to.

7.11 p.m.

Clause 11 [Registration of Adoption Orders]:

THE LORD CHANCELLOR

This is the only effective part I am taking in this Bill, and it is not a big part. The point of this and the following three Amendments is that when one cancels anything, one puts a pen through it; when one erases it, one has to rub it out or use acid. We have had enough of the use of acid recently, so I think we will just have cancellation. I beg to move.

Amendment moved— Page 6, line 41, leave out ("erase") and insert ("cancel").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Amendments moved—

Page 7, line 10, leave out ("erased") and insert ("cancelled").

Page 7, line 12, leave out ("erased") and insert ("cancelled").

Page 7, line 14, leave out ("erasure") and insert ("cancellation").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 11, as amended, agreed to.

Clause 12 [Definition of "relative"]:

VISCOUNT SIMON

I think the three Amendments to this clause can be considered together. They are the result of the draftsman's efforts to put the language of the Bill in a more convenient form. If any noble Lord is interested, I would add that the object of the Amendments is to introduce into Clause 12 the words "adoption order" for the purpose of attracting a new definition in Clause 13 as proposed to be amended. That new definition will make this clause operate on an adoption order made by a Scottish or Northern Ireland court so that a person who is a relative by adoption will rank as such under Clause 12, although the relevant adoption order was made in another part of the United Kingdom. That, with a certain improvement in drafting, is the effect of the clause. It is little more than formal.

Amendment moved— Page 7, line 45, leave out ("a legitimate") and insert ("an").—(Viscount Simon.)

On Question, Amendment agreed to.

Amendments moved—

Page 7, line 47, after ("half-blood") insert ("or")

Page 7, line 47, leave out from ("affinity") to the first ("the") in page 8, line 1, and insert ("and includes— () where an adoption order has been made in respect of the infant or any other person, any person who would be a relative of the infant within the meaning of this definition if the adopted person were the child of the adopter born in lawful wedlock; () where the infant is illegitimate,").—(Viscount Simon.)

On Question, Amendments agreed to.

Clause 12, as amended, agreed to.

Clause 13 [Interpretation and construction]:

VISCOUNT SIMON moved, in subsection (1), in the definition of "adoption order" to omit "has he same meaning as in the principal Act," and to insert: means an order under section one of the principal Act and includes, in sections eight, nine, ten and twelve of this Act, an order authorising an adoption under the Adoption of Children (Scotland) Act, 1930, or the Adoption of Children An (Northern Ireland) 1929, or any enactment of the Parliament of Northern Ireland for the time being in force; The noble Viscount said: Here again, I think your Lordships can safely accept the proposal which the draftsmen have given careful consideration to preparing. It is designed to secure that in Clause 8 and the new clause to replace Clause 9, and Clauses 10 and 12, an adoption order made by a Scottish or Northern Ireland court has the same effect for the purposes of the law of England as an order made by an English court. I beg to move.

Amendment moved— Page 8, line 18, leave out from ("order") to the end of line 19 and insert the said new words.—(Viscount Simon.)

On Question, Amendment agreed to.

VISCOUNT SIMON

The Bill as it stands is required to be construed both with the 1926 and 1939 Acts. It is pointed out to me that those Acts are not themselves construed as one, and so confusion might be caused. It seems better to make this Amendment. I beg to move.

Amendment moved— Page 8, leave out line 33.—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 [Application to Scotland]:

VISCOUNT SIMON

This Amendment is only re-drafting. I beg to move.

Amendment moved—

Page 9, line 31, at end insert— ("() section nine of this Act shall not affect the law of Scotland relating to the distribution of the moveable estate of a person dying domiciled in Scotland or the devolution of heritable property situated in Scotland;").—(Viscount Simon.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

On behalf of my noble friend Lord Morrison, I beg to move the next four Amendments.

Amendments moved—

Page 10, line 33, leave out ("erase") and insert ("cancel").

Page 11, line 6, leave out ("erased") and insert ("cancelled").

Page 11, line 10, leave out ("erased") and insert ("cancelled").

Page 11, line 12, leave out ("erasure") and insert ("cancellation").—(The Lord Chancellor.)

On Question, Amendments agreed to.

VISCOUNT SIMON

This is a drafting Amendment. I beg to move.

Amendment moved—

Page 11, line 44, at end insert— ("() in section thirteen for the definition of 'adoption order' there shall be substituted the following definition '"Adoption Order" means an order under section one of the principal Act and includes in sections eight, ten and twelve of this Act, an order authorising an adoption under the Adoption of Children Act, 1926, or the Adoption of Children Act (Northern Ireland), 1929, or any enactment of the Parliament of Northern Ireland for the time being in force';").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Short title, commencement and extent]:

VISCOUNT SIMON

I am glad to say that this is the last Amendment with which the Committee will have to deal. Perhaps your Lordships will let me give a word of explanation. Parliament in Northern Ireland has power to legislate on the subject of adoption, but nationality is a reserved subject and must be dealt with by Parliament at Westminster. It is therefore necessary to provide that Clause 8 of this Bill, which deals with the acquisition of citizenship of the United Kingdom and Colonies by foreign children when adopted by United Kingdom citizens, is extended to Northern Ireland in order that, if the Parliament of Northern Ireland should pass legislation enabling the adoption of foreign children on the lines of subsection (2) of Clause 1, those children should obtain the benefit of Clause 8 of this Bill. I beg to move.

Amendment moved— Page 12, line 10, after ("Act") insert ("except section eight").—(Viscount Simon.)

On Question, Amendment agreed to.

Remaining clause, as amended, agreed to.

Schedule agreed to.

House resumed.