HL Deb 28 July 1949 vol 164 cc679-94

5.37 p.m.

Amendments reported (according to Order).

Clause 1:

Scope of power to make adoption orders, 16 & 17 Geo. 5. c. 21.

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 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.

VISCOUNT SIMON moved, in subsection (1) to omit "or natural father." The noble Viscount said: My Lords, this Amendment, and, indeed, the other Amendments in my name, all deal with a single point. As the Bill is now drawn we have used in several places the phrase "natural father" and in one place, I think, "putative father." My noble and learned friend Lord Maugham pointed out that the language of the first subsection was not as clear as it might be. All that is cured, if I may point to a later Amendment, by the Amendment to Clause 14 which will insert the definition: 'father' in relation to an illegitimate infant means the natural father. Once that is done these other expressions can be cut out of the other clauses. Therefore the Amendment I am now moving will make Clause 1 read much more clearly, as Lord Maugham suggested. It will read as follows: 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 infant by the mother or father of the infant, either alone or jointly with her or his spouse. That, I think, is very clear, and that is the sole effect of the Amendment. I beg to move.

Amendment moved— Page 1, line 9, leave out ("or natural father").—(Viscount Simon.)


I beg to move the next Amendment.

Amendment moved— Page 1, line 11, leave out from ("spouse") to the end of line 14.—(Viscount Simon.)

Clause 2 [Restrictions on making of adoption orders]:


I beg to move.

Amendment moved— Page 2, line 9, leave out ("or natural father").—(Viscount Simon.)

Clause 3 [Consent to adoption]:

5.39 p.m.

LORD FARINGDON moved, after subsection (2) to insert: () A consent given for the purposes of this section shall not be withdrawn after the expiration of three months from the date on which it is given. The noble Lord said: My Lords, this is, in essence, the same Amendment which was moved by the noble Lord, Lord Darwen, in Committee. We had hoped that the alteration which has now been made in the wording would meet the objections of those who did not like the Amendment in its previous form. The Amendment deals with a very difficult problem. I think all the problems in this Bill really arise from the fact that we are divided in our minds between a number of interests. There are the interests of the natural mother, of the adopting parents and of the child itself. These are not necessarily all in accord, and one desires to be absolutely fair to all of them. But I would suggest that of those particular interests, the one which must take precedence—and I am certain your Lordships will agree—is the interests of the child.

We had hoped, and it is with great regret that I understand our hope is not to he gratified, that the alteration we have made, from a six weeks' to a three months' period, would meet the major objection that was made to my noble friend's Amendment during the Committee stage. It seemed to us that the objection taken was that our suggestion removed, as it were, the position of reciprocity as between the natural mother and the adopting parents. We thought that by extending the period to the same length as the probation period, we should have met that objection. Unfortunately, it appears that we have not been able to satisfy all those with whom we have been in touch. Whilst I myself appreciate the strength of some of the objections, I still feel that basically this Amendment is in the interest of the child. It is surely the case that nothing can be more inimical to the child's interest than constant choppings and changings of its home life. What worries us is the ability of the natural mother for a prolonged and, in fact, an indefinite, period to withdraw her consent. We desire to limit that to a distinct, stated period, so that the adopting parents shall know that, after the natural mother has given her consent in writing and this period has expired, the child shall not be torn away from them.

I have been in touch with a woman who has possibly more experience than almost anybody in this country in the matter of adoption. I understand that she has arranged for the adoption of about 10,000 children in the last twenty-five years, and I think, therefore, her views should carry considerable weight—they certainly do with me, and I believe they will with your Lordships. She maintains three fundamental points. First of all, in her view, there is no doubt that the most tragic aspect of the whole situation is that in which adopting parents are compelled to give up their children. She has described to me really pitiful scenes when these children have been taken away from the adopting parents. She says that these cases are not as rare as one might wish. She claims that there has been—and she has produced the figures—an increase since the 1939 Act, and she expresses anxiety lest, as the result of this Bill, there may be a further increase. Her third point is that which I have already made myself in a general way, that the revocation is contrary to the interests of the child. She claims that in nearly every case it is contrary both to the economic and psychological interest of the child. Usually the natural mother will not be in the same economic condition to look after the child satisfactorily as are the adopting parents. Clearly they would not have undertaken this charge themselves, nor would hey have been accepted as adopters, unless their economic circumstances justified it. She says it is psychologically bad for the child, because she claims—and one states this with some regret—that the vast majority of these revocations are not made with the motive of the child's interest, but rather from selfish motives.

She has given me a number of instances—in fact, she gave me an unlimited number—and if your Lordships will excuse me and have patience for a moment, I should like to mention one or two cases which seen to me typical. They are the type of case which make those of us who move this Amendment so anxious that this particular danger should be met. This woman spoke to me of a case in which a mother thinks that, by taking the child back and by showing it in her arms, she can force the father of the child to marry her. She will take the child back, and apparently more often than not her stratagem is unsuccessful. There was one case in particular she mentioned, in which a woman took back her twins at the eleventh hour and thought she could induce the father to marry her, but he refused to do so. There was another case—and this is, I think, a particularly distressing case—in which an unmarried mother who was serving a term of imprisonment was pestered (I hesitated to use the word, but it is the word she used) by the representative of an adoption society, who put it to her that it was, as it were, a form of penance, of expiation, that she should take this child back and make herself responsible for it. The child was taken from a good home and is now the child of a convicted mother who does not want it. In cases of this sort there can be little doubt where the true interest of the child really lies.

I have heard recently an additional objection which I think may be made in your Lordships' House to-day. It is the objection that if the mother's consent cannot he withdrawn after three months, she will none the less, until such time as the adoption order is made, be legally responsible for the child. Now that is perfectly true, and I would not deny it. But, on the other hand, when she has given her consent she is still legally responsible until the adoption order is made; and because the child is returned by the adopting parents does not mean that she therefore withdraws her consent in any way; the full responsibility is thrust back upon her regardless of the fact that she has given that consent. The fact that that consent can no longer be withdrawn after the three months does not seem to me to change the situation. But this is really very largely a hypothetical situation.

I am informed that there are somewhere around twelve would-be adopting parents waiting for every child available to be adopted. There is therefore no chance, except in a purely transitional sense, of the child going back to a mother who does not want it. It will in fact be found another home immediately. I do not wish to labour this point, because it has been made most ably in Committee by my noble friend Lord Darwen, but it is a matter which gives us great anxiety. We feel that the interest of the child is in some jeopardy. We feel, too, that the very natural feelings of the adopting parents deserve every possible consideration: indeed, I am sure that all your Lordships will agree with that. I have been assured by those who have had much to do with adoption that in a remarkably short time the adopting parent acquires all the feelings of a true parent, and that to remove the child is as agonising and as dreadful an experience as it is for a natural parent.

To expose adopting parents to this indefinite period—indefinite, because it must await the making of the adoption order, which cannot take less than a month and may, I am told, take up to two years—and to put them, as it were, in jeopardy during the whole of that period, is in effect to discourage the object that we desire to encourage, the adoption of children into good homes. I had hoped that this Amendment would receive support from other members of your Lordships' House, as well as those with whom I am associated on the Order Paper. I still hope that perhaps its reception may be more favourable than I was given to understand was likely. But, if it is not, all I can say is that I believe that there is a serious danger here, and it is one which ought not to be beyond the wit of noble Lords in this House to meet. I beg to move.

Amendment moved— Page 2, line 32, at end insert the said subsection.—(Lord Faringdon.)

5.51 p.m.


My Lords, this point was raised in very suitable terms, if I may say so, by the noble Lord, Lord Darwen, in Committee, and I then felt a sincere desire to see, so far as I could, how it could be dealt with. And, since the Committee stage I have done everything in my power to obtain the best advice. The view which I must present to the House I can explain very briefly; but I would first state that it is not from any want of sympathy with this particular case that I must ask the House to reject this Amendment. In so doing, I hope I may be permitted to say that I shall be acting in accordance with the view of the Home Secretary, and I believe that I shall receive support from other quarters.

It is not possible to judge this case fairly if one emphasises too much some particular instance with which the noble Lord has been provided by the lady to whom he has referred. I am sorry she is not one of those who communicated with me, because she must have known, since she is interested in this matter, that, with the help of the adoption societies, of the London County Council, of the Home Office and others, I have been studying it for some weeks now. We ought to understand what is the central machinery of the law relating to the adoption of children. It is this. In the first place the child is put in the care and custody of some persons who are hoping to adopt it; they do not adopt it blindfold. This period is an experimental one; the child is put in their care, and by the law it has to be in their care for three months before they can apply for the adoption order. If at the end of the three months they want to have the child as a legally adopted child, there is not the slightest reason why they should wait for months or years more.

The noble Lord was in error when he talked about an indefinite time; nothing of the sort happens, elf the proposed adopters do wait, it is because they choose to wait; but they are perfectly entitled to go and apply to the court for an adoption order as soon as the three months' period is over—though I agree that it may take a little longer before the application comes before the court. Then the court has to know whether the mother of the child consents to the adoption. I think that, properly speaking, the consent has to be a present consent—a consent at the time the order is made; but as soon as the order is made, the consent 'being in existence, from that moment the child (passes into the new family and the mother has no claim whatever.

The whole machine would break down —as I am advised, and believe—and there would be most unwelcome results if the proposed adopters remained free to reject the child though at the same time the mother were not free to withdraw her consent. There are cases, of course, in which the proposed adopters receive the child—it is not necessarily a baby; it may be a child of eight or ten years of age—and when they have it they do not desire to keep it; and in such cases they return it. I do not see myself how this scheme could work in this experimental period (which need not be more than three months) if the would-be adopters were able to reject and the mother were not free to withdraw her consent. The noble Lord said that in such a case somebody else might adopt the child. But that would not be likely, perhaps, if the child were, as is sometimes the case, not a very desirable child. It is therefore essential in this scheme that these two things should work together. From the moment the would-be adopters apply for an adoption order they have got to look after the child.


I am not sure whether I have understood the noble and learned Viscount aright. He said, I thought, that from the moment the adopters apply for an adoption order they have no right to return the child. Is that what the noble Viscount said?


That was not strictly correct. I should have said, "From the moment that they apply and, in accordance with their application, the order is made."

I have looked into this matter as well as I could, and I have taken the greatest care to get the view of both adoption societies and local authorities. I have been in communication with the Home Office, who are entirely sympathetic, and I find that both the official and the unofficial feeling is unanimous on the matter. I only wish I were entirely in agreement with the noble Lord. I realise that the interest of the child is his concern, as it is mine, but I can hardly imagine a worse case than that where a mother is prohibited from changing her mind. There must be this experimental period; and in practice, as I am disposed to think, this problem is skilfully and sympathetically handled. The number of cases in which difficulty arises, through people desiring to return a child is really very small indeed.

I am quite satisfied that our view is the right one. I will not argue further about it. I wish very much that I could meet the difficulty that does sometimes arise. I think the remedy, SD far as it is a remedy, is to say: "Make up your mind whether you really want to have this child. I hope you do. If you do, then under Clause 3 you can apply for an adoption order as soon as you have had this child in your custody for three months." If the mother consents, in the ordinary course of events this order will be made. But, even if the mother was debarred from withdrawing her consent, if she turned up in court and said: "I do not agree with the child being handed over," I do not suppose that any court would make an order against tier demands. Of course, they would not. I am extremely sorry that there should be controversy over this, because we are trying to do the right thing, but I sincerely believe that is the right conclusion and it is the one with which I hope the House will agree.

6.2 p.m.


My Lords, I may say that the Home Office have gone into this matter most carefully, because I have represented the views of the noble Lord to the Home Office. The noble and learned Viscount, Lord Simon, was perfectly right in saying that the advice of the Home Office is that we should not accept this Amendment. That is the advice I must give your Lordships. I can assure your Lordships that that view was not reached without very careful consideration and close consultation with those who are best qualified to advise. For my own part, I will say this. I confess that I feel a little anxiety about this matter and, therefore, though I am going to ask the noble Lord to withdraw this Amendment, I want to give him two pieces of consolation.

The first is this: that I think it is becoming clear that this measure will need carefully watching. I do not for a moment suppose that the last word on the adoption of children has been written in this Bill. I think it is certain that, in the light of experience gained under this measure, we shall have to consider the whole matter again in the not too distant future. In regard to this particular matter, I think it is one which should be watched very carefully in order that we may learn what is the right course to adopt. That is the first piece of consolation I have to offer to the noble Lord. The second is this. So far as it rests within my power—and I think it does—I propose to give instructions, by order or otherwise, that persons who wish to apply to the magistrates should take all the preliminary steps and get all their cards in order before the three months are up, so that directly the three months are up, having taken all the necessary steps and got all the necessary documents, they can promptly apply. So it may be possible to get the consent, not after a long or considerable interval of time, but almost at once.

I confess frankly that this matter has given me personally some worry. I do not know very much about it. It is partly for that reason that I have been unable to form a clear idea. But I have been to the Home Office, who know about these problems, and they have been at great pains to consider the matter. Their advice, as the noble and learned Viscount has rightly said, is that we should not accept this Amendment. Therefore, I hope the noble Lord will withdraw it.

6.6 p.m.


My Lords, before we part with the matter, there is one question I should like to ask. I have taken a great interest in these adoption of children cases. I have mentioned before that I used to be concerned in a number of cases of that kind when I was a Judge in the Chancery Division. Therefore, I have followed this question with much interest, and I have some statistics and figures which, to my mind, are ex-ceedingly interesting. The question I want to ask—because I do not know the answer and because I want information—is this. As the matter stands, and without the Amendment to Clause 3 that we are now discussing, I suppose that a consent once given cannot be recalled, because there is nothing in the Bill to authorise its being recalled in any circumstances. I would ask whether it would not be right to allow the mother to withdraw her consent if, before the expiration of the probationary period, she finds that so far as she can judge it would be much better if she took back her child. I really do not know the answer to that problem. It seems to me that the noble Lord who is in favour of this Amendment would be on strong ground if he said: "Inasmuch as the order will not be made till the expiration of the three months, it is only fair that the mother, if she has given a previous consent shall be entitled to withdraw it within that period."

On the other hand, I agree with what was said by the noble and learned Viscount, Lord Simon—that after the order has been made, after the great and important act has taken place of removing from the mother her obligation for the child, and it has been transferred to other people, I think it would be quite impossible to allow the mother to withdraw the consent. I hope I have not been at all dogmatic in that, because this probationary period is something new to me. When I had to deal with these matters, what had to be proved were a number of things with regard to the parents and the fact that there was a consent by the mother. They were not, as a rule, cases of much difficulty. They may be more difficult in future.


My Lords, I am obliged to the noble and learned Viscount for those remarks. If I may presume to say so, the noble and learned Viscount makes a real point. I suggest the answer is this. I did indicate it—perhaps not very clearly—in Committee. If your Lordships will read Clause 3, you will see that An adoption order shall not be made except with the consent of… and I read there "the mother." I understand, as I think the Lord Chancellor understood when he spoke in Committee, that the real question for the court is: "As we are making this order now, does the mother consent now?" Sometimes, the mother actually appears before the tribunal and says: "I consent." But there are also, under the Rules which the Lord Chancellor makes, a series of very useful forms, which include the signing of a written consent. Under this Bill, that has to be done: … not earlier than six weeks after the birth… and before a justice of the peace.

I apprehend that the way that provision will work is this. If one speaks strictly, when the mother signs that written document she is giving her consent at the date when she signs. The document is attached to the application, the application is then filed before the tribunal, and they examine the documents. In most cases, they will say: "Well, we see that this consent was written in proper circumstances. There is nothing to suggest that the woman has altered her mind. We consider there is sufficient evidence here to show that the mother consents." So that, although the written document has in fact been signed before the date when the order is made, the court is entitled to infer that the consent is what I may call the present consent.


Is not the consent consequently given before the probationary period has even started, or at any rate at a very early stage in the probationary period?


Yes. I do not think there is any difference between us.


I think there is. If consent is given just before the end of the probationary period, power to withdraw the consent does not seem to me to matter at all. But if the three months is when the matter is in medio and you cannot tell whether or not the adoption order will be made, it does seem to me that the mother might have a right to claim.


I agree. That is the whole point. The mother, of course, has the right to change her mind up to the moment that the adoption order is made.


I am not sure about that.


Everybody else sees the point.


I may be quite wrong, but I cannot see it.


Would the noble and learned Viscount mind looking at the first words of Clause 3: An adoption order shall not be made except with the consent.…


Yes, but the consent may have been given three months before.


I do not think so, with respect. If one reads right through, I think it is plain that the principle of the thing is that the order is made because the consent of the mother has been obtained. If the evidence of that is a document signed some time before, in most eases that will be regarded as sufficient. But whether that is so or not is entirely for the court. The court might say, "We should like to have a more recent proof of this consent." But my noble and learned friend is perfectly right in saying that from the moment the order is made, the mother cannot withdraw any more than the adopting parties can withdraw. That is the moment when the thing becomes final on each side. I think you will find that the present form says, "I, the proposed adopter, apply to the court for an adopter order which will cause such and such a child to be my adopted child, and I annex to my application the consent it which has been signed by the mother,"—and which will now have to be signed under special conditions. In the ordinary way the court says that that is enough, but they are perfectly entitled to ask whether the mother consents now. There are cases where the mother comes forward and says, "I do not cons ant now," just as there are other case; where she says, in face of the court, "I do consent."

6.12 p.m.


My Lords, I do not want to detain the House at all, but I would like to say how great is my disappointment at the line that has been taken. My disappointment is only slightly tempered by the kind words of the noble and learned Viscount the Lord Chancellor, and the promise that he has made. As I said in the previous discussion, I feel the tremendous difficulty of the question regarding the primary consideration which ought to be given to the matter. I also feel, however, that not sufficient consideration has been given to the position of the adopter, to the period of serious suspense and anxiety through which the adopter is likely to pass, and, I think I may say, to the influence upon the child itself of that suspense and anxiety. The very fact that a person wishes to adopt a child makes it almost certain that that person cares for children, loves children, and is going to become more and more attached to the child as the child stays with him. Therefore, one has to face the fact that the anxiety and suspense on the part of the adopters is bound to be increased until the child is securely theirs. I must say that I do not feel that sufficient weight has been given to that consideration. I hope however, as the Lord Chancellor has said, that in working out the regulations it will be possible for the date of the adoption order to be fixed more immediately at the end of the three months, and that there will not be any considerable extension of time.


My Lords, the noble and learned Viscount, Lord Simon, used one argument which would have very great weight with me. Incidentally, and I think all members of the House are indebted to him for his exposition of this extremely complicated subject. He made one point which was not an elaborate legal point but was one which seemed to me to have tremendous weight. He said that even though the mother had no legal right to withdraw her consent, if she went down to the court and said that she would withdraw if she could, no court would in fact make an adoption order. I am quite certain that the noble Viscount is perfectly right in that—


I confess I have great doubt about it. I do not think you must take that as being clear.


I believe that our courts have that humanity which obviously the noble Viscount, Lord Simon, also believes they have. I do not think they would make an adoption order in face of such a protest. I cannot accept the noble and learned Viscount's argument in regard to the situation where a child is thrown back to a mother who cannot withdraw her consent to adoption. In fact, that will happen anyhow. If the child is thrown back it is thrown back only if the adopters do not want it. That is the present situation. In any case, I do not see that it is fundamentally altered by the fact that the mother has no right to withdraw her consent. However, I was considerably comforted by the remarks of the noble and learned Viscount the Lord Chancellor. I feel appreciative of his guarantee that the working of this Bill will be closely watched, and even more appreciative because I think his guarantee that the processes of the law shall be speeded up and that the making of these adoption orders shall not take an excessive length of time does meet a great deal of our anxiety. That does not cover the case where a natural mother happens to be vacillating, and where the adopting people cannot proceed because they are not sure whether they can—


The only person who can move for an adoption order is the person who wishes to adopt. If there is a delay it is because the application has not been made. No one can guarantee that a person who wants to adopt will apply for an adoption order.


I know of cases where the natural mother who has given consent is vacillating, and the adopting parties who would desire to take out an adoption order are prevented from doing so because the mother might withdraw her consent at the court. However, it is very consoling to hear that the legal delays will be reduced. I thank the noble and learned Lord Chancellor for his assurance and, not wholly happily, I withdraw my Amendment.

Amendment, by leave, withdrawn.


My Lords, I beg to move this Amendment to page 2, line 33.

Amendment moved— Page 2, line 33, leave out from ("of") to the first ("an") in line 34.—(Viscount Simon.)

Clause 10 [Provisions supplementary to s. 9]:


My Lords, this is quite formal. I beg to move.

Amendment moved— Page 6, line 29, leave out from ("order") to ("is") in line 30.—(Viscount Simon.)


My Lords, I beg to move this Amendment.

Amendment moved— Page 7, line 4, leave out ("putative").—(Viscount Simon.)

Clause 13 [Definition of "relative"]:


My Lords, I beg to move the next Amendment.

Amendment moved— Page 9, line 29, leave out ("natural").— (Viscount Simon.)


My Lords, I beg to move.

Amendment moved— Page 9, line 33, leave out ("natural").(Viscount Simon.)

Clause 14 [Interpretation and construction]:


My Lords, this Amendment follows on the others which have been made. I think by inserting this definition of "father" we shall get rid of references to "natural father" and "putative father," and all the rest of it. It is a simpler and much better way in which to do it. I beg to move.

Amendment moved— Page 10, line 14, at end insert ("'Father' in relation to an illegitimate infant means the natural father").—(Viscount Simon.)

Clause 15 [Application to Scotland]:


My Lords, perhaps I may deal with the next two Amendments together. The first is a drafting Amendment, consequential on the Amendment to page 11, line 14. These adaptations are necessary in applying to Scotland a new subsection added in Committee—namely, subsection (4) of Clause 3, as (a) the securing of consents in Scotland is regulated by the Court of Session by act of sederunt, and (b) it is usual, and for the convenience of the public in Scotland, to empower a sheriff to carry out the duties of a justice of the peace. I beg to move.

Amendment moved— Page 11, line 11, leave out ("and").—(Lord Morrison.)

Amendment moved— Page 11, line 14, at end insert ("and in subsection (4) for any reference to rules there shall he substituted a reference to an act of sederunt, and any reference to a justice of the peace shall include a reference to the sheriff").—(Lord Morrison.)


My Lords, this Amendment to the Scottish application clause is consequential on the insertion in Committee of Clause 10. Clause 10 deals with supplementary matters arising out of the provisions of Clause 9, which provides for changes in the law of succession as regards adopted children in England. I beg to move.

Amendment moved— Page 11, line 24, leave out ("section nine") and insert ("sections nine and ten").—(Lord Morrison.)


My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 13, line 43, leave out ("ten").—(Lord Morrison.)

Then, Standing Order No. XXXIX having been suspended (pursuant to the Resolution of July 13), Bill read 3a, with the Amendments, and passed, and returned to the Commons.

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