CHILDREN BILL [H.L.]

HL Deb 02 April 1958 vol 208 cc634-87

2.58 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.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair]

Clause 1 agreed to.

Clause 2 [Meaning of "foster child"]:

On Question, Whether Clause 2 shall stand part of the Bill:

LORD BURDEN

In subsection (1) of Clause 2 the word "guardian" appears. Nowhere can I find the word "guardian" defined in this Bill. It is defined in Section 59 of the Children Act, 1948, as A person appointed by deed or will or by order of a court of competent jurisdiction to be the guardian of a child. May I respectfully submit to the Lord Chancellor that that point might me considered with a view to a definition being included somewhere or other.

THE LORD CHANCELLOR

I will gladly look into that point. I thought it was sufficiently clear from other legislation, but I am always grateful to have my attention drawn to points of this kind. I will look into it and communicate with the noble Lord.

LORD BURDEN

I am much obliged.

Clause 2 agreed to.

Clause 3:

Duty of persons maintaining foster children to notify local authority

(5) A person maintaining or proposing to maintain a foster child is not required to give a notice—

1. (a) under subsection (4) of this section in respect of the removal of the child from his care, if the child ceases to be a foster child on the removal;
2. (b) under subsection (1) of this section, if he has previously maintained the child as a foster child and the child last ceased to be a foster child while in his care or on removal from his care.

(6) A local authority may exempt any person from the duty of giving notices under this section, and any such exemption may be granted as regards all or any such notices and for a specified period or indefinitely, and may be revoked at any time by notice in writing served on that person.

LORD LATHAM moved to leave out subsection (5). The noble Lord said: Before moving the Amendment, I should like, with your Lordships' permission, to express for myself, and I am sure I can include therein all those noble Lords interested in this important social measure, our sincere thanks and appreciation to the Lord Chancellor for his kindness in circulating an admirable schedule of the principal recommendations of the Hurst Committee and showing in detail which were accepted, how they were accepted and where they are in the Bill, or, if they are not in the Bill, how they will be dealt with in the Rules. He also indicated which recommendations the Government were unable to accept and briefly the reasons why. I am sure that this schedule has greatly assisted all those concerned. As I see it, out of forty-eight principal recommendations of the Hurst Committee, thirty-six have been accepted either wholly or in part and some are still under consideration. This is perhaps a unique, as it is certainly an enduring, tribute to the excellence of the Hurst Report. May I also say that the acceptance of so wide a range of recommendations does credit to the broad-minded approach to this problem by Her Majesty's Government?

Nevertheless, some of us have felt it necessary to put down certain Amendments, and we trust that the mind of the Government will be sufficiently broad to accept them. We shall also from these Benches have something to say in the direction of improving other clauses in the Bill where no Amendments have been put down. May I add my personal thanks to the noble and learned Viscount the Lord Chancellor for so handsomely meeting the point which I ventured to raise on Second Reading—namely, the confusion and complexity likely to arise from Clause 35, as it appears in the Bill, in relation to Part I? Although the proposed new Schedule which it is intended to substitute for Clause 35 is longer, in my opinion it is much easier to understand, and I am sure that this recasting of the Bill will be greatly appreciated by the officials who will have to administer the law as it may emerge from Parliament and, even more so, by the many thousands of voluntary workers who, with exemplary devotion and dedication, do so much in the service of these children and generally in the welfare of the young.

I come now to the Amendment. The effect of subsection (5), as it stands in the Bill, is to remove from foster parents the necessity of giving notice in writing every time a child in their care goes away temporarily—that is to say, to hospital—and again every time the child returns. It also obviates the necessity of giving notice in writing every time the foster child goes home to his parents and returns to the foster home. The local authority whose officer was visiting the foster home would become aware of these temporary changes only on the occasion of the next visit, and this (I stress these words) may not take place for some time. Within that time much could have happened, probably, or possibly, to the detriment of the child. One can argue that the proposal to exempt foster parents from giving this notice has some procedural advantages, but I would submit to your Lordships that they are greatly offset by the disadvantages, as I think I shall be able to show.

The subsection as drafted would have a much wider effect than that of only relieving the foster parents from the duty of giving notice in writing to the local authority. It could involve serious potential dangers for the child, three of which I take leave to mention. First, the protection given to children by existing legislation—that is to say, the provisions of the Public Health Act, 1936, and of the Public Health (London) Act of the same year—has been wider than simple supervision of the children in their foster homes. The present practice is to check when the foster parent gives notice of a child's removal to his or her new home. If, for example, the child's new home with another foster parent or his own home is not in the authority's area, one authority consults the other. In this way, matters such as school attendance or the need for medical attention can be quickly followed up. Thus it is possible to ensure that the welfare of the child concerned is continuously safeguarded.

The removal in certain circumstances of the obligation on foster parents to give notice of removals or placings for adoption of children does much to reduce the efficiency and value of this present practice, which could not function immediately after the child's removal, but would be delayed, as I have indicated, until the next visit of the local authority's officer, with the result that the wellbeing of the foster child might well be put at risk. If necessary, I could give some rather painful and disturbing instances where this has been the case.

Secondly, it is considered that the provisions of this proposed subsection would increase the difficulties experienced by officers of local authorities who are supervising foster homes and who are told by foster parents that the foster child is no longer in the home. The officer might not be able to verify quickly, as she can at present, a foster child's safe arrival at any new address which might be given by the foster parents, and she might be unable to obtain a warrant in accordance with the provisions of Clause 8 of the Bill after the child had left the foster home. Nor, in these circumstances, would any offence be committed under Clause 14 if the necessary giving of notice were removed, as is proposed.

Thirdly, if in the circumstances mentioned in subsection (5) the requirement for giving notice is dispensed with, the power of supervision of foster homes by a local authority in order to prevent overcrowding and similar abuses will be diminished and, it is feared, seriously impaired. Clause 1 of the Bill places a duty on every local authority to secure that foster children within their area are visited from time to time in order to safeguard their well-being. This duty cannot be regarded as discharged by a local authority until they are satisfied that the children concerned have ceased to be foster children, and unless they know where the children have gone after leaving their foster homes they cannot make the necessary investigation on this point. I will not weary your Lordships with a recital of the other disadvantages which would flow from the proposals in the Bill. I conclude by saying that local authorities and others concerned are disturbed at the proposal to relieve, in the circumstances indicated in subsection (5), the foster parents from the obligation of giving notice. I beg to move.

Amendment moved— Page 4, line 4, leave out subsection (5).—(Lord Latham.)

THE LORD CHANCELLOR

As the noble Lord, Lord Latham, has said, this subsection relieves a person who is main taining a foster child from the duty of notifying the local authority of the child's removal if he then ceases to be a foster child, and of the corresponding duty when the child returns. As Lord Latham said, also, this provision is designed to apply to short temporary absences of the child; and the noble Lord quoted two examples which I, too, had in mind, of when the child returns to its natural parents, or when the child goes to hospital, which are probably the most common cases. It seems to me that there are two questions the Committee has to consider: first, whether some sort of provision of this kind is not necessary; and secondly, whether the Government have the right provision in the Bill as it stands.

On the first point, I should say that it is not only obvious, but implicit in the arguments of the noble Lord, Lord, Latham, that some provision of this sort. must exist. I think your Lordships will agree that to leave no help for the case of the child going for a week-end to its own parents would be wrong; and, indeed, if this subsection were omitted, if the child was going home for a weekend it would be necessary to give notification before it left. One really must make the Bill not only fit the facts of life, but remove from people irritations and annoyances which appear unreasonable. If one does not do that, there are two dangers: one, that people will be annoyed unnecessarily; and the other, that they will become unwitting breakers of the law. If one makes too detailed and too great restrictions in the law, people do not learn about them. They break the law unwittingly and in that case become liable to a penalty of up to six months' imprisonrnent or a fine of £100; or else, which is much worse, they do know about the law, and yet ignore it. Therefore I feel that some provision of this kind is necessary, and I am anxious to avoid placing unnecessary burdens on those who look after foster children and who are, in the main, conscientious and competent people.

That is on the main question, but it leaves the next question of whether we have got it right. On a matter like this I hope I shall never be dogmatic, and I should like to consider carefully the weighty words the noble Lord, Lord Latham, has advanced to-day. I am open-minded as to whether we have not drawn the clause too wide; and, as the noble Lord has shown us, it is possible to envisage circumstances in which the local authority would be put to unnecessary trouble, or would not know that a person had resumed the care of a foster child. If I might put it colloquially, I think it is up to the noble Lord—I say this in the friendliest way—to make some more specific suggestion. I have, I think your Lordships will agree, made a case that there must be some provision of this kind to avoid unnecessary irritation and annoyance. Therefore, I make the noble Lord the offer that if he will consider whether he can give me some specific suggestion for narrowing the subsection before the Report stage, I will do the same, with my advisers. If it suits the noble Lord, we can meet to discuss it, or if it suits him better, we can correspond on the matter. I shall be pleased to consider a specific narrowing of the subsection, but for the reasons I have given I cannot go so far as to say that the subsection should be omitted. I hope the noble Lord will think that that is a reasonable approach to the matter and that we may together find a solution which will meet him. On that understanding, I hope he will not press the Amendment.

LORD SALTOUN

One point occurred to me while the noble Lord, Lord Latham, was speaking, and it is this. I think it is a fatal thing for any child to feel that it is the child of any institution, however great it may be. A child wants to look within its own home for the centre of authority and wants to feel that it is stable and able to be trusted. Therefore, I feel that one has to be careful in putting on foster parents the duty of always giving notice to a local authority of whatever they may do. The child is bound to find it out in the end, and that will do more harm to the child, by shattering what it looks on as its normal surroundings, than anything else. I do not speak as an expert, but I do know something about children.

LORD LATHAM

I will only say to the noble Lord, Lord Saltoun, that the other side of the problem is that Parliament should not cast upon local authorities certain obligations unless they also provide the means by which the local authorities can satisfactorily carry out those obligations. The Committee cannot have failed to be impressed by the weighty statement made by the Lord Chancellor. He will not misunderstand me if I say that the procedural difficulties to which he referred were present in my mind and in the minds of others associated with me when this Amendment was put down. However, I willingly accept the proposal that between now and the Report stage we should discuss the matter as to whether the points I have sought to make would be reasonably and adequately safeguarded, as well as the rights of the foster parent, referred to by the Lord Chancellor. With the permission of your Lordships, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.20 p.m.

LORD BURDEN moved, in subsection (5), to leave out paragraph (b). The noble Lord said: May I first of all join wholeheartedly in the tribute paid to the Lord Chancellor and the Hurst Committee for the excellent work they have done in connection with this Bill? I only hope that the Lord Chancellor has not got himself into difficulties, through his wonderful generosity, by leading us on these Benches to expect a similarly high and generous standard from his colleagues when we come to any controversial legislation. However, we will wait for that day to come.

I think it is only right and proper that I should say that this Amendment, and subsequent Amendments standing in my name on the Marshalled List, are put down at the instance of the Association of Municipal Corporations, of which I, together with other noble Lords in this House, happen to be one of the Vice-Presidents. I am sure the noble and learned Viscount will agree that they are not frivolous Amendments, and that they are put down by men who will be closely concerned with the working out of this Bill when it becomes law. This Amendment does not cover so wide a field as that moved by my noble friend Lord Latham, and I would strongly urge that they should not be taken as alternative proposals. Therefore, I think the right and proper thing for me to do is to state briefly what I have in mind in regard to this Amendment, in the hope that, in the general consideration of the operation of this clause, the Lord Chancellor will be good enough to take my points into consideration and let us know the result.

As has been explained, a person proposing to maintain a foster child must, by Clause 3. notify the local authority, But subsection (5) (b) provides that in a case where a person has once maintained a child, who has subsequently left, if that child later returns to his care no notification to the local authority need be given on the second occasion or, it may be, on subsequent occasions. Thus, if a parent removes his child from a foster parent and subsequently again places the child with that foster parent, no notification would be given; and an irresponsible parent could thus elude supervision by the local authority, to the detriment of the child. In that way I think the generous purposes of this Bill would be defeated. I beg to move.

Amendment moved— Page 4, line 9, leave out paragraph (b).—(Lord Burden.)

THE LORD CHANCELLOR

I am sure the noble Lord, Lord Burden, heard what I had to say about the general problem raised by this subsection, and again I should be glad to consider his views and, if he will allow me to say so, the views of the Association of Municipal Corporations. In my political life I have had a great deal to do with the Association on a variety of points, and I have always found, as he has said, that their suggestions are reasonable and worthy of consideration. If one may be informal on this matter, perhaps he would care to tell whoever is dealing with it in the Association to communicate on an official level as a first step. I am saying merely that I want to be quick and practical in the matter.

The noble Lord will appreciate from what I have just said that there is an obvious difficulty in his suggestion—which is an interesting one. If the Amendment were made, a foster parent would still be exempt from giving notice to the local authority of the child's removal if the child ceased to be a foster child, but would have to give notice of its return. I attach importance to the point, and I hope the noble Lord will consider what I said, about people dropping unwittingly into crime or the law being brought into disrepute. It seems to me there is a real danger there, and, therefore, we ought to consider the matter again. I shall certainly consider what he has said, and I have made the suggestion—I am sure he will not misunderstand me—that the Association of Municipal Corporations should write, because that might be of assistance and might save time. I would be most pleased to consider the matter.

Thanking noble Lords for thanking me leads to rather a long spending of time, but I should like—I hope the House will bear with me—to say how much I appreciate what the noble Lord, Lord Latham, said, and what the noble Lord, Lord Burden, has now said, and to assure them that it is always a pleasure for me to carry out my first duty, which is to be of assistance to the House. I hope that with that assurance the noble Lord will not press his Amendment at this time.

LORD SILKIN

Before the noble Lord decides what course he is going to take on this Amendment, I hope the noble and learned Viscount will give consideration to this kind of case. It is the case of a child who is with foster parents and then leaves them—leaves them perhaps for two years—and comes back. The provision here is that no notice is required when the child comes back. The remarks of the noble and learned Viscount have been directed to the case where the child might go for a very short time—it might go to hospital. I ask him to take into consideration whether, if the deletion of this subsection is carrying the thing too far, the clause itself does not go too far, because it would excuse the notification of cases which I think the noble and learned Viscount would agree ought to be notified. Conditions may be completely different when the child comes back after a lapse of time, and the local authority ought to know.

THE LORD CHANCELLOR

I take the noble Lord's point. That is what I had in mind when I said that we should see whether we could not find specific proposals for some via media, and that is what I shall be glad to consider.

LORD BURDEN

I should like to thank the noble and learned Viscount, but may I give a similar case to that of my noble friend? In a children's home with which I had some connection for many years (the position there would now be that the child would be with a foster parent) a travelling hawker who had a daughter always wanted her out during the summer time and back again in the children's home in the winter. The position is that she would not now go to a children's home, but to a foster parent. I must say the resources of civilisation were not exhausted, and the child did not go out on every occasion when the father wanted it. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.30 p.m.

LORD SILKIN moved to leave out subsection (6). The noble Lord said: Clause 3 of the Bill contemplates that there will be a duty on persons maintaining foster children to notify the local authority. One of the main purposes of the Bill is, of course, the protection of these children, and the notification is necessary in order that the local authority may know which children are under foster parents, so that the officer of the local authority can visit the premises and judge whether the conditions are satisfactory. All this is common ground. We then come to subsection (6), which enables the local authority to grant to people exemption from giving notice. I can well understand that there may be circumstances in which the local authority, in their wisdom, would not think it necessary that people should give notice. But does not subsection (6) go far too widely? It enables a local authority to exempt any person from the duty of giving notices under this section. Incidentally, it does not say in what circumstances or give any reasons why they should be exempted. The subsection goes on: and any such exemption may be granted as regards all or any such notices and for a specified period or indefinitely, and may be revoked at any time by notice in writing served on that person.

The purpose of this Amendment is to probe what is in the mind of Her Majesty's Government in giving exemption on this exceedingly wide basis. I recognise that, as I have said, exemptions may be desirable. If they are, should it not be clearly set out on what basis exemptions would be given? Should these reasons for giving exemptions not be incorporated in the subsection, so that we might know the circumstances in which certain foster children will remain unprotected? For these reasons I am moving the Amendment. I do not know that I would go so far as to say that this power to grant exemption should be entirely deleted from the Bill. I think a local authority ought to have some kind of power, properly regulated and properly circumscribed and delimited, to exempt some people, properly defined, from the requirement to give notice. I hope the noble and learned Viscount, the Lord Chancellor, will be able to give the same assurance on this Amendment as he has given on the earlier one. I beg to move.

Amendment moved— Page 4, line 9, leave out subsection (6).—(Lord Silkin.)

LORD LATHAM

I agree substantially with what my noble friend Lord Silkin has said with regard to this Amendment. It could be argued that in certain circumstances the Amendment would give authorities too wide a discretion, and it might be that some authorities—not always the smaller authorities—might be careless, or that small authorities might be short of staff and not have the rateable value which would provide them with the necessary finance to obtain an adequate and proper staff. On the other hand, it would, I think, be a disadvantage not to grant to the local authorities an appropriate measure of discretion. As my noble friend Lord Silkin was speaking, it occurred to me that Clause 3 (6) as it now stands might be considered as one of the means, or the means, by which the point which was raised in connection with subsection (5) could be met. Perhaps the noble and learned Viscount the Lord Chancellor would be willing to agree that the two subsections might well be taken together and we might, through that consideration of both of them, find an appropriate and acceptable means of protecting the interests not only of local authorities and foster parents but also—which is paramount—the foster child.

THE LORD CHANCELLOR

I am very ready to respond to a request to take another look at the provisions, but I try to be frank with the House on these occasions, and I should not be doing so if I did not indicate that, whereas on the last occasion I felt that a via media was an admirable course if we could find one by common effort, here I have somewhat greater reluctance to restrict the discretion of the local authority. I feel that in general this is essentially a local matter, where local authorities ought to have the power, and I would point out that although the subsection gives them the power to give exemption for a specified period or indefinitely, on the other hand, as I am sure the noble Lord, Lord Silkin, has noticed, they have also a power to revoke at any time, so it is a complete discretion which is not handicapped in any way. Whether the local authority are going to exercise the power on wide and generous terms or whether they are going to apply any restrictive terms is entirely a matter for them; in fact, as the clause is drawn they could almost shut the door on exemptions. I think that as the word is meant in this context they would have to consider them, but they could say it would require very serious conditions before exemption would be allowed.

As I said in my answer on the last Amendment, I want to see that this Bill is workable and does not cause irritation. The noble Lords who have spoken may remember the point which was raised by the noble Earl, Lord Iddesleigh, on the Second Reading, about exchanges of children. Of course, as the Bill is drawn, where the exchanges are for money or money's worth, they would prima facie come in. I said in answer to the noble Earl, Lord Iddesleigh, that on an occasion like that, where there is an exchange of children (there are many thousands of eases in the country, which I think is an admirable thing—children coming here from abroad and our children going abroad; I am sure a great number of us have done it in one way or another) one should be able to drop a line to the local authority and say: "I have got Mademoiselle de Carabe coming to stay and my (laughter is going to France". The local authority in those circumstances would probably say, "We shall not trouble you with notices on all the occasions". I think we should all like to see that. It would make the rest of the provisions, which we are so anxious to see not only enacted but carried out by people, more palatable to them. I also feel that a great number of local authorities would know of people in their area who could be thoroughly trusted to look after foster children and from whom they would not wish to receive the notices.

Apart altogether from my point about exchanges, that local authorities or their children's officers or appropriate people would know very well that these people were completely trustworthy and that the fears dealt with under the Bill were not likely to arise, I feel that there is a strong argument for a very wide discretion. Therefore again, as that is my view, I should be most grateful to noble Lords if they would give me more detailed particulars of any suggestions they have for cutting it down. I should also like to consider the suggestion of the noble Lord, Lord Latham, in regard to the inter-action of subsections (5) and (6). Quite honestly, I had not thought of that approach. Therefore, while I will willingly consider the matter, I hope noble Lords will consider both the points I have made, and if, after that, they think there is a suggestion which we could pursue, I shall, of course, be glad to consider it.

LORD SILKIN

The noble and learned Viscount has indicated on this particular Amendment that although his mind is still open it is only slightly open—much less so than on the previous Amendment. I asked him, as a lawyer, whether he would not agree that subsection (6) would give any local authority the right to say, "We are not going to operate this clause at all. We do not want any notice from any foster parents." If that is so, is it not quite contrary to the intention of the Bill? They have to give no reason; they do not have to exercise any discretion; they can merely exempt. That, I would submit, is wholly undesirable. Of course, I agree with the noble and learned Viscount about the exchange of children, and about reputable people who have become foster parents and whom the local authority know all about. I would willingly give the local authority discretion to excuse them from giving notice, but I cannot think it is right that it should be possible for the local authority virtually to say, "We are not going to bother about this. We do not see why we should have welfare officers visiting homes. We think it is an intolerable interference with the liberty of the subject. We want to 'set our people free. "We do not believe in this. We are going to give everybody exemption, and not operate the section." I am sure the noble and learned Viscount does not approve of that. It is for that reason that I should be glad if he would open his mind just a little wider and again look at this subsection in conjunction with subsection (5), and see whether we cannot thresh out something which is a little more satisfactory and would give rather more protection to the children than the Bill does at present. In that confident hope, I beg leave to withdraw the Amendment.

LORD HAWKE

Before the noble Lord withdraws the Amendment, may I say that it rather sounded, from his last speech, as if he did not believe in local government, because this subsection is leaving discretion to the local authority to decide whether or not to give people exemption. But I really rose to ask about a point mentioned by my noble and learned friend the Lord Chancellor. Is he right in linking au pair arrangements with this particular subsection? This particular subsection seems to deal only with notices from people who maintain a foster child. I am asking for information—whether an au pair arrangement is, by definition in the Bill under Clause 2, a foster child because it does not seem to be undertaken for reward.

LORD CONESFORD

Might I intervene briefly? I find myself in agreement with the points made by my noble and learned friend the Lord Chancellor in resisting the deletion of this subsection. But I am sure he would agree that this subsection would be wholly unsatisfactory if it could possibly mean what the noble Lord, Lord Silkin, suggested it might mean. With every hesitation in differing from anybody of the legal attainments of the noble Lord, Lord Silkin, I should have thought it was quite impossible to construe "a local authority may exempt any person" as meaning that the local authority could decide to exempt all persons and not to operate the clause at all. I agree with the noble Lord, Lord Silkin, that, if it were possible in law to construe the subsection as he suggested, the Committee would wish to reconsider the wording. I do not think the subsection can possibly have that meaning. I share the reluctance of my noble and learned friend the Lord Chancellor to change this subsection, because it seems to me to have two desirable features: it saves both the local authority and suitable persons from unnecessary trouble, and it leaves with the local authority a discretion which can quite properly be left with them.

LORD BURDEN

May I ask the noble Lord who has just spoken to give his mind to this problem: who would there be to take action? Who would there be to take exception to the decision if the subsection should read "every application" instead of "any application"? So far as I can see, there would be no person who could take action, and everybody would be happy except probably the poor child.

LORD CONESFORD

I think I could answer that, but I am certain the Committee would much rather have the reply from the Lord Chancellor.

THE LORD CHANCELLOR

May I take the matters raised in order? The noble Lord, Lord Silkin, raised the point of a local authority abrogating its duties by using this subsection. My noble friend Lord Conesford has put the answer, that clearly this ought to be beyond doubt. Both my noble friends will remember the difficulty that was raised during the period of the Government of noble Lords opposite in regard to the exercise of the prerogative regarding the death penalty, when my late noble and learned friend Lord Simon raised a very serious point of constitutional law. I want the clause to allow the exercise of an individual discretion in each case, and I gather that both the noble Lord, Lord Silkin, and my noble friend Lord Conesford agree with that. I think that that would be an improvement and would go some way to meet the general point which the noble Lord has raised. I will certainly see that that is done. It seems to me absolutely right and that the Committee would want me to do it. Therefore I shall try to find the appropriate words before the Report stage, and I will communicate with those noble Lords who are interested in this point.

With regard to the point made by my noble friend Lord Hawke, I was assuming—I hope I have not been slovenly in my homework—that the words: a person … shall be deemed to"— have undertaken for reward for the purposes of this Act— if he receives any payment or gift of money or money's worth or any promise of such a payment"— the position about which the noble Lord was speaking—come within the provisions of the Bill. That was a reason why I was so anxious that there should be a complete discretion exercised in individual cases in order to deal with that situation and prevent trouble. That was why I expressed the view I did. If the noble Lord, Lord Hawke, has any doubts about it, I shall be very pleased to look into it again. That was certainly the view I formed on reading subsection (1) of Clause 2 with subsection (6) of Clause 2; and therefore I think, at any rate, that we had better proceed with regard to the present problem on the basis that that difficulty about the cases of au pair arrangements is covered by it. I shall certainly be pleased to go as far as I have done—and that opens the door just a little more—and look at it in the spirit which I have mentioned.

LORD SILKIN

The difficulty is this rather narrow door.

LORD HAWKE

While my noble friend is looking at Lord Silkin's point, could he see whether by deleting the words "money's worth" at a later stage he could exclude these au pair arrangements completely, because I feel the Bill was never intended to cover them? Certainly no intimation is made to local authorities at the moment. People will much resent having to do so, and I believe that by the deletion of those words, "money's worth", it would be possible, without any deleterious effect on the duty of foster parents, to remove these au pair arrangements completely.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4:

Power to inspect premises, impose conditions, or prohibit the keeping of foster children

(3) Where a person proposes to keep a foster child in any premises and the local authority are of opinion that it would be detrimental to that child to be kept by him in those premises, the local authority may prohibit him from doing so; and if the premises are not for the time being used by him for the keeping of any foster child and the local authority are of opinion that it would be detrimental to any foster child to be kept by him in those premises, the local authority may prohibit his use of the premises for the keeping of any foster child.

3.53 p.m.

LORD BURDEN moved, in subsection (3), page 5, line 10, leave out "in those premises," where the phrase first occurs, and to insert: either because those premises are unsuitable or because he is unfit to have the care of the foster child, The noble Lord said: When the Lord Chancellor was explaining this Bill to your Lordships' House on Second Reading he stated that Clause 4 gave local authorities the powers they needed to carry out the duty of ensuring the wellbeing of foster children. And if I may venture to quote his own words, they were [OFFICIAL REPORT, Vol. 208 (No. 43), col. 7]: The local authority may … prohibit a person from keeping a foster child if they think it would be harmful to the child. I venture to submit to the Lord Chancellor that Clause 4 does not completely give effect to that assurance, and that in some way it is deficient. Subsection (3) of Clause 4 empowers the local authority to prohibit any person from keeping a foster child in certain premises if the local authority considers it will be detrimental to the child to be kept by him "in those premises". I would submit that the premises might be perfectly suitable, but the person proposing to keep the child might be far from suitable, and the local authority would have no power under Clause 4, at least as it is construed.

From my own experience I know that, notwithstanding the most careful and stringent inquiries made by children's officers, premises have, on the surface, been admirable, yet, when young girls have been placed there, it has been subsequently discovered that they were in grave moral danger, and the children's officer had to deal with the position. This is probably only a matter of drafting. It may be said that Clause 7 would give the local authority some power to deal with the position. Action under Clause 7, however, would take time, and it is suggested that this is an instance where the local authority ought not to be placed in the position of acting after the trouble has arisen. They should be able to deal with the position at once, so that a child is not allowed to go into premises which may be quite suitable in themselves but, for many other reasons, quite unsuitable for the child. I beg to move.

Amendment moved— Page 5, line 10, leave out ("in those premises,") and insert ("either because those premises are unsuitable or because he is unfit to have the care of the foster child,").—(Lord Burden.)

THE LORD CHANCELLOR

I hope that the noble Lord, Lord Latham, will forgive me for intervening at this point: he will understand the reason, I hope, when I have spoken. Our intentions are exactly the same—to make this clause as wide as possible. It is a matter of construction; I believe that the clause I have drawn is wider than the clause as it would stand if the noble Lord's Amendment were carried. The clause as drawn says that if the local authority are of opinion that it would be detrimental to the child to be kept by that person in those premises, the local authority may prohibit that person from keeping that particular foster child in any premises. If the Amendment of the noble Lord, Lord Burden, were made, the power could be exercised by the local authority only when the harm would result either because the premises were unsuitable or because the person concerned was unfit to have care of the child. I do not think that goes far enough. Circumstances might well arise in which the local authority would wish, and ought, to prohibit a foster child's being kept, yet could not do so because of the limitation: both the premises and the person intending to keep the foster child would be suitable, but there might be some other person living on the premises whose health or mental stability or morals were such as to expose the foster child to harm.

I believe that my words cover not only an objection to the person and the premises but any other good reason which the local authority might have. I want to give the local authority the widest discretion, because, after all, a person aggrieved by the local authority's exercise of the discretion has the right of appeal, so that one cannot say the clause is oppressive. That is the position and I would ask the noble Lord to consider what I have said, since we both have the same objection. And again, if I may put it that way, the legal staff can consider it too. I want to make the clause as wide as possible, and I think this is a circumstance where it ought to be as wide as possible, and therefore I welcome any suggestion for giving it the widest effect. I hope that the noble Lord. Lord Latham, will understand why I intervened before he did. I did not want him to have the unnecessary labour of pushing at an open door, when our intention is the same; but the last thing in the world I should desire is to be deprived of hearing what he has to say.

LORD LATHAM

This is not the same door. My noble friend Lord Burden and the noble and learned Viscount the Lord Chancellor have dealt with the nature of the premises and the character of the parents; the point I want to raise concerns the use of premises. I am advised that under the Bill as drafted there is no power such as exists to-day for visitors to give directions. Under the current Act, local authorities have power to fix the number of children who may be kept in any foster home and may also impose conditions. Clause 4 (2) of the present Bill contains similar provisions, but they apply only with regard to premises "used wholly or mainly" for the care of foster children. In our view, this definition does not cover the ordinary foster home, the private household, and therefore the power of visitors to give directions has had to be dropped from the clause. This seems to me to be a quite unnecessary relaxation of the present appropriate detailed control over ordinary foster homes, and I doubt whether it is wise. I should like the noble and learned Viscount to look into this third aspect of the clause.

THE LORD CHANCELLOR

Certainly. I did not anticipate the point being raised on this Amendment. I have had no chance of discussing this matter with my advisers from the Home Office who have been helping with the Bill, and if the noble Lord will allow me to look into the point, I will do it with great pleasure and we can return to it on Report stage.

LORD BURDEN

Far be it for me to attempt to put my construction of words in the Bill against that of the noble and learned Viscount. I would only say that, as a layman, I concentrated on the word "premises", which seemed to me to exclude the wide connotation given to it by the noble and learned Viscount. In view of the assurance that has been given, however, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Appeal to juvenile court against requirement or prohibition imposed under section four]:

On Question, Whether Clause 5 shall stand part of the Bill?

4.3 p.m.

LORD LATHAM

I should like to raise a point on subsection (1) of Clause 5. This subsection provides for appeal within fourteen days to a juvenile court against a requirement or prohibition imposed by a local authority under Clause 4. It also provides that while the appeal is pending, such requirement or prohibition shall not—I stress the word "not"—have effect. Doubtless this second provision was designed to prevent the removal of a foster child from its home until the court had given its decision; but as at present worded it would enable foster children to be placed, pending the hearing of an appeal, in premises which might be considered to be detrimental to the welfare of the foster child. In effect, it seems that this subsection provides more for the protection of the appellant than for the protection of the welfare of the child.

It has been suggested that the subsection should be amended by the deletion of the word "not" and the addition of the words provided that nothing in this section shall require a foster child to be removed from the foster home in which it is placed until the juvenile court has decided accordingly. It might be argued against this suggestion that other legal means could be used to prevent a placing which would put the child in jeopardy and that therefore there is no need to amend the clause. This, however, ignores the disparity of standard between other Acts concerned with the protection of children and this Bill. The important thing is to try to prevent children from being pushed around, as it were, and put into unsuitable homes. Even if they are removed soon afterwards, they cannot avoid being disturbed by these unnecessary changes. It is thought better to clear up any real doubts about foster homes before allowing children to be placed there, and I should much appreciate it if the noble and learned Viscount would, be willing to inquire into this point and consider whether there is any way of meeting it.

THE LORD CHANCELLOR

Of course, I shall be pleased to consider it. I am sure that the noble Lord is too reasonable to expect me to answer a point of this nature at once, but I will look into it and communicate with him about it before the next stage of the Bill.

Clause 5 agreed to.

Clause 6 agreed to.

Clause 7 [Removal of foster children kept in unsuitable surroundings]: (5) Where a child is removed under this section the local authority shall, if practicable, inform a parent or guardian of his, or any person who acts as a guardian of his.

LORD CONESFORD

This is a drafting Amendment, intended to improve the language without altering the meaning. I beg to move.

Amendment moved—

Page 7, line 17, leave out ("his, or any person who acts as a guardian of his.")and insert ("the child, or any person who acts as his guardian.")—(Lord Conesford.)

THE LORD CHANCELLOR

I have had occasion before in your Lordships' House to refer to my noble friend Lord Conesford as "a well of English undefiled"—an appellation hitherto restricted to William Shakespeare. Once again my noble friend has proved the rightness of my description, and I have great pleasure in accepting his Amendment. I hope that my noble friend will not object if I use this opportunity to deal with the question of a guardian, which the noble Lord, Lord Burden, raised earlier to-day. The noble Lord will note that the reference to a "person who acts as a guardian", in juxtaposition to "a parent or guardian", makes it clear that a guardian must be a person with the legal status of a guardian. As the noble Lord knows, there are various methods by which that status may be conferred. It may be conferred by deed, by will or by order of a court. I am not certain that it is necessary to set these out every time, but I will look into the point again. I wanted to take the earliest opportunity to let the noble Lord know what was in my mind on this point, and if he has any further aspects which he would like to draw to my attention I shall be glad to consider them. In the meantime, I thank my noble friend Lord Conesford for his linguistic supervision of our efforts.

LORD BURDEN

I am most grateful to the noble and learned Viscount—but was not the reference made to Addison?

THE LORD CHANCELLOR

Probably that is so.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clauses 8 and 9 agreed to.

4.10 p.m.

THE LORD CHANCELLOR moved, after Clause 9 to insert the following new clause:

Sittings of juvenile courts in proceedings under Part I

"10. Subsection (2) of section forty-seven of the Children and Young Persons Act, 1933 (which restricts the time and place at which a sitting of a juvenile court may be held and the persons who may be present at such a sitting) shall not apply to any sitting of a juvenile court in any proceedings under this Part of this Act "

The noble and learned Viscount said: Clause 5 provides that an appeal against a requirement or prohibition imposed by a local authority under Clause 4 of the Bill shall be heard, in England and Wales, by a juvenile court and Clause 7 provides that a complaint by a local authority with a view to the removal of a foster child from unsuitable surroundings shall, in England and Wales, be to a juvenile court. Proceedings under the existing law correspond to those under Clause 7 and are heard by ordinary magistrates' courts. The change is being made because in each case the welfare of a child will be at stake, and a juvenile court seems a more appropriate tribunal for such cases. But the appellant or defendant will be an adult, and the respondent or complainant will be a local authority. There will thus be no need to apply in these cases the special provisions that govern the work of juvenile courts when they are dealing with juveniles.

Section 47 (2) of the Children and Young Persons Act, 1933, provides that: A juvenile court shall … sit either in a different building or room from that in which sittings of courts other than juvenile courts are held, or on different days from those on which sittings of such other courts are held; and no person shall be present at any sitting of a juvenile court except—

1. (a) members and officers of the court;
2. (b) parties to the case before the court …;
3. (c) bona fide representatives of newspapers or news agencies;
4. (d) such other persons as the court may specially authorise to be present: …"

I was anxious to have the proceedings heard by a juvenile court, because I have a great respect for the way these courts have worked for the benefit of the child, but I do not think it is right that the proceedings should be heard behind closed doors when allegations are made. I thought this was a method of getting the best of both worlds. I beg to move.

Amendment moved— After Clause 9, insert the said new clause.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 10 agreed to.

Clause 11 [Duty to notify death of foster child to coroner]:

THE LORD CHANCELLOR moved to omit Clause 11. The noble and learned Viscount said: Clause 11 provides that if a foster child dies the person who maintained him must give notice of the death to the coroner (in Scotland, to the procurator fiscal). In the debate on the Second Reading, the noble Earl, Lord Iddesleigh, suggested that it was no longer necessary to impose this duty upon those who were caring for foster children, and urged me to consider whether it should not be discontinued. Clause 11 contains less rigorous requirements than the existing law, which also prescribes the circumstances in which the coroner is required to hold an inquest. The provisions about notifying the coroner derive from earlier enactments which were primarily designed to control the evils of baby-farming.

After considering what the noble Earl, Lord Iddesleigh, had said, I thought that one could dispense with this requirement, relying on two things. The first is the general law about notifying the coroner or the procurator fiscal of deaths. May I remind your Lordships of that? It is the duty of every person to give information which may lead to the coroner having notice of any circumstances which may lead to the holding of an inquest. There are special statutory duties on the registrar, and there is a provision—I must be careful about my quotation this time—

LORD BURDEN

I am sorry.

THE LORD CHANCELLOR

Not at all; I am obliged to the noble Lord. But he will find in Bacon's Abridgement that it is the Common Law of this country that if the coroner is not notified in suitable cases the local authority may be amerced. I must say that I cannot remember a local authority being amerced because there has not been a notification to the coroner, but it shows clearly what the Common Law was. There is, however, the further provision, which your Lordships may think of much greater importance: that is, the duty laid on a person maintaining a foster child, under Clause 3 (4) to notify the local authority within forty-eight hours if the child dies. It seems to me that if the foster parent has to notify the local authority, and there is a general law which requires a citizen to notify the coroner if there are circumstances which may lead to the holding of an inquest, then the matter is covered. Therefore, in my general desire not to place unnecessary restrictions on people, f thought I could accept the suggestion of the noble Earl, Lord Iddesleigh. I beg to move.

Amendment moved— Leave out Clause 11.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 12 [Extension of Part I to certain school children during holidays]:

LORD BURDEN moved, in subsection (1), to leave out "one month" and insert "two weeks". The noble Lord said: I am bound to say that I do not attach much importance to this Amendment. It deals with an entirely new thing. It is a duty which is placed upon the Ministry of Education, as I understand it, to safeguard the welfare of children who remain more than a month at a school. It is thought that "exceeding a month" is rather a long and possibly somewhat indefinite period, and that something more precise and less than "exceeding a month" might be put in the Bill. I leave the matter with the noble and learned Viscount, the Lord Chancellor. I beg to move.

Amendment moved— Page 8, line 4, leave out ("one month") and insert ("two weeks").—(Lord Burden.)

THE LORD CHANCELLOR

I hope the noble Lord will not press this Amendment, for these reasons. He will find that under the provisions of Clause 2 a child who is in the care of any person in a school within the meaning given in the Education Acts is excluded from the definition of "foster child". Clause 12, however, provides that when a child resides in an independent or direct-grant school during the school holidays for more than a month the provisions of Part I, subject to certain modifications, shall apply as if they were not so excluded. This clause supplements the Education Act, 1944, under which the schools to which the clause applies are subject to inspection during term time. The clause applies to children who stay in the school during the holiday period the same sort of criterion as applies to children who are looked after elsewhere for reward—namely,that supervision under the Bill is justified only if the care and maintenance of the child is for a period of more than one month.

Therefore, it seemed to me to be illogical to provide a shorter qualifying period in respect of children in a school than is provided in respect of other children looked after for reward. It really would mean, in effect, that probably the Christmas and Easter holidays would not be covered, because they might be under a month, but if the schools made a practice of having children there for the summer holidays, then they would be liable to the supervision. It seemed to me wrong to put schools in a more difficult position than ordinary people, and that is why I ask the noble Lord not to press his Amendment.

LORD BURDEN

I think the noble and learned Viscount had some idea of what was in my mind from my opening words. With the leave of the House, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clauses 13 to 17 agreed to.

Clause 18:

Consents to adoption

(2) It is hereby declared that the reference in paragraph (a) of the said subsection (4) to a parent of an infant does not include a reference to any person having the rights and powers of a parent of the infant by virtue of any of the following enactments, that is to say—

1. (a) section seventy-five of the Children and Young Persons Act, 1933, or sub-paragraph (1) of paragraph 12 of the Fourth Schedule to that Act (which relate to the exercise of parental rights in respect of children and young persons who are committed to the care of fit persons or ordered to be sent to approved schools);
2. (b) section seventy-nine of the Children and Young Persons (Scotland) Act, 1937, or sub-paragraph (1) of paragraph 12 of the Second Schedule to that Act (which make corresponding provision in Scotland);
3. (c) section three of the Children Act, 1948 (which applies to children in respect of whom the local authority have assumed parental rights by resolution under section two of that Act).

(3) If upon application for an adoption order the court is satisfied that any person whose consent is required under section two of the principal Act as parent or guardian of the infant has persistently failed without reasonable cause to discharge the obligations of a parent or guardian of the infant, and that the failure is likely to continue if the order is not made, the court may dispense with the consent of that person whether or not it is satisfied of the matters specified in paragraph (a) or paragraph (c) of subsection (1) of section three of the principal Act.

4.22 p.m.

LORD BURDEN moved to omit subsection (2). The noble Lord said: This, I venture to think, is a somewhat more important Amendment. Clause 18 (2) provides that where the child to be adopted had been committed to the care of a local authority by an order made under the Children and Young Persons Act, 1933, or a local authority had assumed parental rights under Section 2 of the Children Act, 1948, the consent of the local authority would no longer be required to the making of an adoption order. I agree that this is in accordance with the Hurst Committee recommendation in paragraph 110 of their Report. It is there suggested that the local authority should be regarded only as a temporary guardian, since its responsibility ceases when the child attains the age of eighteen. I can assure the noble and learned Viscount that up-to-date chil dren's homes, after the children reach the age of eighteen and are placed in employment through various agencies, keep close touch with the young persons, although they have technically no responsibility for them. If the proposal as it stands is accepted, it will be possible for foster parents, with whom a child has been billeted out by a local authority, to make arrangements direct with the parents for the adoption of the child, and the local authority will have the right merely to object at the time of the hearing of the application for an adoption order.

Those of us who have been in touch with work among children over a number of years know that it is not an unusual thing for parents to disappear without trace, and the court is asked to dispense with their consent under this clause. In such cases, I beg to submit that it would be most desirable that the local authority, to whose care the children have been committed and who have been responsible in a supervisory capacity for a number of years for their wellbeing, ought to be the necessary parties to giving the consent to adoption. The right of the local authority to express its views at the hearing of the application does not seem to carry out in full—and I am sure the noble and learned Viscount does not wish me to read the sections; they are no doubt well in his mind—Section 2 (1) of the 1948 Act and Section 75 (4) of the Children and Young Persons Act, 1933. The clause as it stands takes away those responsibilities placed on local authorities by previous legislation. I would beg the Lord Chancellor to look carefully at this Amendment because it is one to which considerable importance is attached. I beg to move.

Amendment moved— Page 10, line 20, leave out subsection (2).—(Lord Burden.)

THE LORD CHANCELLOR

I think I can come a considerable way, if not the whole of the road, to meet the noble Lord. Lord Burden. As he said, the Hurst Committee discussed in paragraph 110 whether the consent of a body having such parental rights as he mentioned should be required to the making of an adoption order, and concluded that it should not. They argued that the responsibility of the local authority ceased at the latest when the child reached the age of eighteen, whereas the natural parents continued to be parents, and may be presumed to have an interest so long as they and the child are alive. The Committee took the view that the local authority should be regarded as a temporary guardian and that it would be wrong for them to have equal powers. But the Committee recommended that a local authority having parental rights should be made a respondent to the application, so that the court may take their views into consideration. I entirely agree. It is intended to implement this recommendation by statutory Rules, so that the local authority will be enabled to appear in the court; and, I am sure, in the cases the noble Lord had in mind, if they have real objection to the order their views would be given great weight by whatever court considers it. The statutory Rules will enable the local authority to be heard and make their views felt.

LORD BURDEN

That appears to be satisfactory on the surface, but I should like to look at it again and examine it. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

4.28 p.m.

LORD LATHAM moved, in subsection (3), to leave out "and that the failure is likely to continue if the order is not made,". The noble Lord said: It may be recalled that I raised this question on the occasion of the Second Reading of the Bill, and I then took leave to refer to what I described as the three indeterminates in subsection (3) of Clause 18. I do not regret doing that, because as a consequence the noble and learned Viscount the Lord Chancellor treated us to what I thought was an interesting and, indeed, intriguing exercise in construction—an exercise which was very luminous. But, if I may say so with respect, I doubt whether it would be likely to help the lay magistrate dealing with a neglectful and unworthy parent. My Amendment seeks to free the lay justices from having to look into the future, as it were, and to appraise the likelihood that the sinning parent will repent, with the risk that to accept that that might be the case would be at the expense of the welfare of the child who had been sinned against.

This problem greatly exercised the minds of the Hurst Committee, as is apparent from the Report, and it is clear that they devoted much and penetrating consideration to it. Section 2 of the Adoption Act, 1950, provides, among other things, that an adoption order shall not be made in any case except with the consent of, among others, every parent or guardian of the infant. Under Section 3 of the Act of 1950 the court may in certain circumstances dispense with such consent if satisfied, inter alia, in any case that the person whose consent is required cannot be found or is incapable of giving his consent, or that his consent is unreasonably withheld. Although the court is required by Section 5 of the Act of 1950 to be satisfied, before making an adoption order, that such order, if made, will be for the welfare of the infant, the courts have from time to time indicated that in deciding whether a parent is acting reasonably or unreasonably in withholding his consent to an adoption order the welfare of the child is only of indirect and not of primary importance, and that the crux of the matter is whether the parent is being reasonable as a parent.

That really is the issue involved in this Amendment. The Hurst Committee, in paragraph 120 of their Report, recommended the removal from the Act of 1950 of the ground that consent is unreasonably withheld and the addition of a further specific ground in terms which allow the court to dispense with the consent of the parent who in its opinion has made no attempt to discharge the responsibilities of a parent—not whether he is likely to discharge them in the future but whether he has attempted in the past to discharge the reasonable and proper, and indeed natural, responsibilities of a parent. In my view, the court's power to dispense with parental consent should be accompanied by the addition of a requirement that in the exercise of that power the court must have regard to the welfare of the child. We come back to the difference between myself, and maybe others, and the Lord Chancellor, in taking the view that the interest of the child should, in all normal circumstances at all events, be paramount.

The Bill proposes by Clause 18 (3) to give the court a new power to dispense with the consent of a parent or guardian upon application for an adoption order if the court is satisfied that such parent or guardian has persistently failed without reasonable cause to discharge the obligations of a parent or guardian of the infant … It will be seen that in order to dispense with the consent of a parent or guardian under this subsection the court must be satisfied on three grounds—and, I submit, on all three grounds: first, that the parent or guardian has persistently failed to discharge the obligation of a parent; secondly, that he or she had no reasonable cause for such failure; and thirdly, that the failure is likely to continue if the order is not made.

Supposing it be conceded that the first two of those requirements are matters of fact, the third relates to the future intentions of the parent or guardian towards the child—a parent or guardian who has, it is admitted and accepted, failed in the past. Whether the guardian is likely to repent and to reform is a matter that is incapable of proof. It will therefore be seen that a hitherto neglectful parent who announced his intention of fulfilling his parental obligation in the future might justify his refusal to the consent to the making of the adoption order. This third requirement is incapable of proof, and it would result in many cases, in my submission, and in the view of many others, if it were retained in the Bill, in children who might be the subject of an adoption order being unable to obtain the advantages of such an order. It will be observed, as I have already indicated, that in recommending an additional ground the Hurst Committee did not suggest any such restrictive provision as that which is contained in this subsection.

As I said a little earlier, this is an important Amendment; I think it is probably the most important Amendment; at all events, it raises perhaps the most important question throughout the whole Bill. This is a fundamental issue. It is really a question of whose interest shall prevail. Shall it be the interest of the child, the child's welfare, the child's future, or shall it be the interest of the parent who has admittedly been neglectful, who has failed to discharge his responsibilities, who has indeed persistently failed to discharge his responsibilities, and done so without reasonable cause? What rights can such a parent have? Rights rest upon a recognition and a performance of obligations, and upon acting in a natural, proper and human way towards one's offspring. Moreover, surely the child also has his rights—rights to his life, to his future. He has not failed in his duty, as his unworthy parents have, who may be refusing, and may indeed be permitted to refuse, to consent to an adoption order. Can it be questioned that the interests and welfare of the child should prevail over those of an unnatural and neglectful parent? As I have said, it is his life which is in jeopardy; and his interests, in my submission, should be paramount.

The purpose of this Amendment is to remove the danger that the child may be sacrificed to what I think one can fairly describe as the notional rights of a neglectful parent whose assurances as to his conduct in the future cannot, in my submission, be relied upon. A parent who has belied his rights by refusing to recognise the responsibilities which flow from rights has no claim to impede and to bar the adoption of the child he has neglected. I therefore sincerely hope that the Government may see their way to accept this Amendment, or in some way to amend the provisions of the clause, so that the rights of the child shall prevail and that this uncertain, unappraisable condition—namely, as to what is likely to happen in the future—is removed. I beg to move.

Amendment moved— Page 10, line 43, leave out ("and that the failure is likely to continue if the order is not made,").—(Lord Latham).

LORD SILKIN

I rise to support this Amendment in, I hope, a few words. I fail to understand why these words are added to the provision at all. In order to dispense with the consent of the parent the court has to be satisfied both that the parent has failed to maintain the child and that there has been no good reason for it. Is that not sufficient? If it also has to be satisfied on a third criterion, on what evidence will it act? It is quite clear that the parent has failed to maintain; and the court can form a judgment that there has been no good reason for it. I would submit that any court having to decide the third criterion would rely solely upon the other two facts, and would say that in view of those two facts the parent is unlikely to maintain the child in the future. Therefore I would submit that these words serve no useful purpose but may be an embarrassment to courts which will try to interpret them and possibly get themselves into difficulties. For the sake of simplification I would suggest that those words might well be omitted.

THE LORD CHANCELLOR

After the most eloquent speech of Lord Latham—I hope he will take that as a real tribute; I thought he put his points with great force and feeling—and the reinforcement on a more practical plane from the noble Lord, Lord Silkin, I do not like disagreeing; but, as Lord Latham says, this is an extremely important point. The noble Lord very frankly came back to his basic view that the interest of the child ought to be the dominant consideration. As I have said, I find great difficulty in accepting that in regard to the question of consent to adoption, because in many cases it is almost impossible to leave sufficiently on one side the material benefits that may come from the new home when it is offered by people who are rich as well as being good. Therefore, I feel that true philosophic difficulty in being able to agree with Lord Latham on that point.

LORD LATHAM

Would the noble and learned Viscount allow me to say a word? Would that arise in a case where the child had been neglected persistently and without reasonable cause? I can understand its happening that, ordinarily, a person might wish, for material gain or otherwise, for the child to be adopted by a wealthy family. But here you have a child neglected for no reasonable cause.

THE LORD CHANCELLOR

That, of course, relates to the second point which Lord Latham put and which I will certainly argue, because again it is a most important point. But on the first point I had to register not only my doubt but my view that this is a case where you cannot lay down the interest of the child as being dominant, because parents have a special position and there is the danger which I have mentioned. Lord Latham very rightly says that, even if he agreed with me (which he does not) on my major premise, the present circumstances take him completely outside that. He would say that if a parent has persistently failed to discharge the obligations of a parent and, secondly, done so without reasonable cause, that is enough. He quotes, with complete accuracy and I think fair addition to his argument, the last words of paragraph 120 of the Report: We recommend the removal from the Statute of the ground that consent is unreasonably withheld, and the addition of a further specific ground in terms which allow the Court to dispense with the consent of a parent who in its opinion has made no attempt to discharge the responsibilities of a parent. We then come sharply to the second point—namely, is it enough to look at the past only? The noble Lord, Lord Silkin, says, with great force, that you can judge the future only in terms of the past. I do not like to be either dogmatic or debating on as serious a point as this, but I should like to put to the noble Lord, Lord Silkin, for his consideration, my own experience when, for six years, I was Recorder of an industrial town in the North—the same problem arises for every Judge. There one had to consider, in sentencing, not only whether the person concerned had committed the offence, but had he done it in circumstances which, if you like, made the offence worse; and also, what was the likelihood of the future. That is a point which I have had to consider scores of times, especially where a young delinquent had not only committed that offence but might have committed a previous offence. I then had to consider, was it likely that he would go straight if I put him on probation or adopted some equivalent procedure. One had to make the assessment. As I say, I am anxious not just to make a debating answer, because that is not the way in which I am approaching the Bill. What I have in mind is the case where there is a correspondingly profound shock in the family. It may be that in certain circumstances proceedings have been taken. There may be some other factor. It may be sufficient that, for the first time, they realise they are in danger of losing a child, which is a terrifying thought even to irresponsible parents. I believe that it is right that one should try to calculate the likelihood of the future.

There is one point on which I venture to correct an impression of the noble Lord, Lord Latham. Subsection (3) does not mean intention; it does not say intention. If you will look at the words again you will see that they are: and that the failure is likely to continue. That is an objective test, not a subjective statement. The court would not have to consider what is said. The noble Lord knows from his magisterial experiences, and I know from mine, that it does not take you very far when somebody says, "I won't do it again."

LORD LATHAM

It would be part of the submission by the parent, would it not?

THE LORD CHANCELLOR

It would; but it is not what the court has to consider. The court has not to consider his intention at that moment; the court has to consider the likelihood of his continued failure to discharge the obligations of a parent. That is an objective matter. And, of course, it may well be—and I ask the noble Lord to consider this—that a person intends very fully to do what he should, and intends it absolutely sincerely at the time. But the court can go beyond that; it can say that he is (as we say in Scotland) feckless; that there is not the slightest chance that he will be able to do it; and it would have the right to decide that although at the moment the man honestly intended what he said, there was not the least chance of its being carried out. That is not an issue, in my view, upon which courts cannot come to a decision. It seems to me to be a material matter, because, as I say, parents may have behaved badly, in the past, and without any cause, but the court may be quite satisfied that the whole balance of probability is that they will behave well in the future. In these circumstances, I am still not convinced that the consent of the parents should be dispensed with against their will.

I will, of course, consider, and I will draw the special attention of my right honourable friend the Home Secretary, to what the noble Lord, Lord Latham, has said, and has said with complete sincerity. It was a very moving and forceful account, and we will consider it before the next stage of the Bill. But I felt it was only right, after the great consideration he had given to this matter, that I should try to explain the matters that weighed with me. But, as I say, I will certainly draw my right honourable friend's attention to it, and we will consider it again before the next stage of the Bill. I cannot make a further promise, but I will certainly do that.

LORD LATHAM

One cannot, of course, disregard the impressive statement which the Lord Chancellor has made; but I should like just to amplify one or two points in my earlier remarks. We are here considering not a person who has by a sudden dereliction of duty done something wrong, however bad it may be, but a person who has been indulging in a course of conduct which has been persistent: it has been going on for some time, and so far as the court can discover there is no good reason why it should have—it was entirely unjustified. I should have thought that, in those circumstances, if the court was satisfied that the person had persistently neglected his or her duty for no reasonable cause, that ought to be sufficient, and the court should not also be required to determine (notwithstanding the fact that the delinquent parent is before the court), whether he or she is likely to reform in the future. If those two requirements are satisfied, I should have thought that, in so far as they could in these circumstances be really regarded as subsisting, the rights of the parent would be sufficiently acknowledged.

I would not go so far as to say that the Hurst Committee's Report supports the doctrine that in every circumstance the interests of the child and the welfare of the child should be paramount, but I think it is fair to say, on this question of consent, that the Committee got very near the point of view that the interests of the child should prevail. I am very grateful to the Lord Chancellor for his promise to look into the matter again and to discuss it with his right honourable friend the Home Secretary. I very much hope that in respect of this proposal it will be found possible to meet the situation which my noble friend Lord Silkin and I have submitted to your Lordships this afternoon. I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Other conditions of adoption]:

On Question, Whether Clause 19 shall stand part of the Bill?

4.58 p.m.

LORD LATHAM

I should like to raise the question of the health of the applicant. The Hurst Committee took the view that the present arrangements as regards the ascertainment of the health of the applicant were not satisfactory. At paragraph 140 the Hurst Committee stated: It is of the utmost importance that the court should be fully apprised of the circumstances if there is any reason to suspect that before the child has reached an age at which he will be capable of social or economic independence either of the adoptive parents may be dead or an invalid. The present requirements are set out in paragraph 141 of the Committee's Report, which states: At present one of the duties of the guardian ad litem in England is to enquire whether either of the applicants suffers or has suffered from any serious illness, and whether there is any evidence of tuberculosis, epilepsy, or mental illness in their families. Presumably this is what is referred to in the Lord Chancellor's schedule (if I may so designate it), as the courts' existing power to call for medical reports. But the Hurst Committee went on to say, in paragraph 141: This is not "— that is to say, the requirements I have just read out— wholly satisfactory, because, to a great extent, the guardian ad litem must be dependent on the information which the applicants choose to give him, and the family doctor, if consulted, cannot he expected to disclose medical history to a layman. Further on in the same paragraph, the Committee go on to say: In all cases, however, we think it right that the court should have proper advice about the state of the applicants' health, both physical and mental. Indeed we think that it is of fundamental importance and we considered whether an examination by the applicants' own doctor should be required. The cost of this might deter prospective applicants of small means, however, and we therefore recommend that all applicants for an adoption order other than the father or mother of the child (and his or her spouse on a joint application) should be required to undergo a medical examination by a doctor appointed by the court …. In the light of these strong and unanimous opinions and recommendations, I must say that I find the words in the clause not very impressive or imperative. The words are: In determining for the purposes of paragraph (b) of subsection (1) of section five of the principle Act whether an adoption order if made will be for the welfare of the infant, the court shall have regard (among other things) to the health of the applicant. The applicant's health is one thing among many others, whereas, as the Hurst Committee have stated and as all informed people of good will would agree, the health of an applicant is clearly of prime importance in relation to the welfare and interests of the child. I should like to ask the noble and learned Viscount, out of his abundant consideration this afternoon, to consider seriously whether this clause cannot be strengthened by requiring the applicant to undergo a medical examination, as recommended by the Committee.

Here is a case where a child, either young or adolescent, is going to live with the applicant until he reaches adult life, and it is important that the court should be satisfied without doubt that the health of the applicant at the time of adoption is satisfactory and is not such as would inure to the detriment of the welfare and interests of the child. I hope that the noble and learned Viscount will be able to give us some encouragement on this point.

THE LORD CHANCELLOR

I should like to assure the noble Lord that we considered this point fully before the Bill took its present form. I consulted the county court judges, who, I think, deal with more adoptions than other courts, and they said that, despite what the Committee had stated, in existing practice they were most careful to consider this point, and if there was the slightest indication from any source they saw to it that they had information about the applicant's medical condition. I want it to be clear that any court, whatever its present practice, would consider this matter. Therefore we put in the provision, to which the noble Lord referred, that the court … shall have regard … to the health of the applicant". This had to be "among other things", otherwise, it might be said that it was the only or dominant matter, which clearly it is not: it is one of a number of important matters to be considered. This leaves it to the discretion of the court.

Where the court have the slightest doubt about the health of the applicant in any aspect that might affect the future of the child, I should think that they would require to be satisfied by medical evidence; but it seems to me that that is as far as we can go. To insist that everyone should produce a medical certificate seems to me to be going too far and adding an unpleasant element to adoption. It is a matter rather of feeling than of logic. I think that the insistence on the production of a medical certificate, where the court does not call for it, is getting too near the regimented State; and though I sympathise entirely with what the noble Lord has said with regard to the children, I hope that he will not press this Amendment but will rely on the common sense and judicial experience of the courts to deal with the matter.

LORD SILKIN

We are discussing this question with the same object, and therefore the noble and learned Viscount will not mind if I say that I do not think that his answer has been entirely satisfactory in meeting the powerful point that my noble friend made. Under the clause the courts are directed to have regard among other things to the health of prospective adopters. But there may be nothing about the prospective adopters, in their appearance or manner or anything else, to attract the attention of the court to the question of their health. The noble and learned Viscount knows well that often people who look the fittest are the least fit and that there are some diseases which are not apparent by inspection; therefore there would be no reason why a court should be concerned to make inquiries.

If the noble and learned Viscount thinks that the requirement to submit to a medical examination, which, after all, was the unanimous recommendation of the Hurst Committee—and he paid great tribute to Committees yesterday and spoke of the desirability of assuming that, unless there was overwhelming reason to the contrary, something should be done, even though it did not go so far as to accept a Committee's recommendations—should not be part of the Bill, I wonder whether we could not have some kind of requirement to the court specifically to make inquiries about health and not merely take it into account. I do not know whether this can be done, but I do not think that we ought to let this clause stand as it is without carrying the matter a little further.

LORD SHEPHERD

May I ask the noble and learned Viscount how the court satisfy themselves about the health of a prospective foster parent unless there is some form of medical certificate or examination?

THE LORD CHANCELLOR

The court satisfies itself by the applicant's dossier, which they are given, by the applicant's appearance and by asking the applicant whether he has ever had any serious illness. If anything is disclosed in any of these ways, I am told that the practice is to pursue it by asking for medical evidence. But if somebody comes to court wanting to adopt a child and says that he is a respectable man, who has worked and made a position for himself in a certain occupation, and says: "and I have never suffered from any ill health", I do not like to think that that person should have to produce a medical certificate. I think noble Lords will agree that I have been very reasonable this afternoon. I am not appoaching this point in any way as a debating matter, but I am trying to find what I think is best for the Bill. Therefore, I hope noble Lords will not take it amiss if I say with absolute frankness how it appeared to me and my colleagues. I will again have a word about it with my right honourable friend the Home Secretary, although it is a matter that we considered carefully and we came to the conclusion which I have tried to express. I cannot offer more than that. I want the noble Lord to appreciate that, without giving any undertaking, I will ask my right honourable friend to consider it, and will consider it myself. However, the noble Lord has not really shaken my view.

LORD LATHAM

It is a little Gilbertian. After all, the child who is to be adopted will have periodical medical examinations at school as part of the school medical service. Medical examinations are now required for all sorts of reasons. You cannot become a bus driver unless you have a medical examination and have further examinations at stated periods. There is an increasing number of employments where medical examination is required, and the tendency is for that requirement to be extended. The noble and learned Viscount said that if, when the applicant appeared before the court, any fact was disclosed about his health which was derogatory, then a medical examination would be ordered. But so much can be concealed. The Lord Chancellor referred to the dossier. Does the dossier contain a medical history of the applicant? So far as I know, it does not, but I am open to correction. Does it even contain the last certificate of health of the applicant?

I appreciate the difficulty of the noble and learned Viscount, and I once again pay tribute to his reasonableness this afternoon; but this is a serious matter. We ought not to countenance a procedure under which it would be possible—I will not say necessarily probable—for a child to be adopted by persons who, not for reasons of character or anything like that, but for health reasons alone, ought not to be permitted to adopt another person's child. I sincerely hope that as a result of what has been said this afternoon and the comments of the Lord Chancellor something much stronger than is contemplated by the words in the clause will emerge.

LORD SILKIN

I should like to ask the Lord Chancellor if we could be informed in good time before the Report stage whether it is proposed to make any Amendment. I can think of some words that might meet the case from our point of view, without necessarily going so far as to insist on a medical certificate or examination in every case.

THE LORD CHANCELLOR

I should be grateful if the noble Lord would give me the words to consider, and I will let him know as soon as possible what decision is come to. I cannot help having in mind that, after all, we have not come to the position where a man must have a medical certificate before he marries a girl; and presumably they marry with the intention of having children. I think one wants to be careful to see how far one goes.

LORD LATHAM

I should not have thought that that was a very close analogy.

THE LORD CHANCELLOR

It is one of the purposes of marriage set out in. the Prayer Book.

LORD SILKIN

But neither do you have to go to the court for permission to marry.

THE LORD CHANCELLOR

No. But I say respectfully that one must keep a sense of proportion in this matter, otherwise, with the best of intentions and motives, one is going to slip into the regimented world, which none of us really wants. I know that noble Lords will consider that point of view.

LORD PETHICK - LAWRENCE

Before we part with this clause, there is another matter on which I should like to ask the noble and learned Viscount the Lord Chancellor a question. As I understand the position under the existing law, there must be twenty-one years difference between the age of the adopting parent and that of the adopted child. That requirement, I understand, is being swept away by this Bill and the new provisions are put in its place. Do I understand that there is no regulation left regarding the age of the child as against the age of the adopting parent? If that is so, it seems to me possible that you might get a case of a child being adopted when it was in its early teens, and there might be only a few years between the age of the adopting parent and that of the child. Could the Lord Chancellor inform me whether that matter was given full consideration at the time of framing the Bill, and whether it might not be reconsidered?

THE LORD CHANCELLOR

Of course, it would be a most important point on the general suitability of the adopter which the court would consider. If there was any fear of what the noble Lord has at the back of his mind, of the adoption degenerating into an undesirable relationship between the adopting father and the child, the courts would be very much alive to that. I do not think the noble Lord need fear that any of the courts that have to deal with the matter will not be extremely vigilant on that point. But I am glad he has raised the matter. What I should like to do is to trace my way back through the consideration that it has had, and if I can find anything of further interest I will gladly write to the noble Lord about it.

LORD PETHICK-LAWRENCE

I thank the Lord Chancellor. At the time when the Adoption Bills were passing through another place and I was taking a great deal of interest, I remember that this point as to the difference of age was one to which a good deal of consideration was given. I do not think it would be a question only of the possible misconduct of the adopting male person with an adopted child. Even if the mother were only ten or twelve years older than the adopted child, it would be an undesirable situation. I realise that the courts would naturally consider those matters carefully when the question came up, but it seems to me rather a big step to jump down from a provision that there must be a twenty-one years' gap between the ages of the adopting parents and that of the child to having no gap at all. I put that point forward and I should be grateful if the Lord Chancellor would look at it and give me subsequently his considered judgment on it.

THE LORD CHANCELLOR

I want to make it clear that the matter has been considered. What I should like to do is to go back through the period of consideration and see whether I can find anything. I should not like it to be thought that the matter had not been considered, but I want to refresh my mind on the various arguments before I give a final view to the noble Lord.

Clause 19 agreed to.

Clause 20 agreed to.

Clause 21 [Procedure and evidence]:

5.20 p.m.

LORD BURDEN moved, after subsection (1) to insert: (2) Where, on an application made in England to a court of summary jurisdiction or the High Court, the Court refuses to make an adoption order, the Court may direct the local authority to bring the child before a juvenile court who shall consider whether the child is in need of care or protection. The noble Lord said: This Amendment seeks to give effect to a recommendation of the Hurst Committee. It is quite brief, and I should like to read it. It says: We think that the most practical way to deal with the difficulty would be to give the court power, when refusing an adoption order, to direct the local authority to bring the child before a juvenile court for consideration whether he is 'in need of care or protection. within the definition of this phrase in Section 61 of the Children and Young Persons Act. 1933 (as amended by the Children and Young Persons Act, 1952) or Section 65 of the Children and Young Persons (Scotland) Act, 1937. We recommend the introduction of such a provision. The use of the power of the adoption court to give this direction should, of course, be permissive, not mandatory, so that if the court saw no reason for the removal of the child he could remain where he was, as at present. If the adoption court did not give such a direction, or the juvenile court were not satisfied that the child was in need of care or protection, supervision by the local authority should continue, as recommended in paragraph 68. This Amendment would give the court—not the local authority; I would emphasise that point—a useful additional power to consider the question of the child's future, particularly in marginal cases where at present it is difficult for a local authority to justify bringing a case before the court. I beg to move.

Amendment moved— Page 12, line 35, at end insert the said subsection.—(Lord Burden.)

THE LORD CHANCELLOR

I do not think this Amendment is necessary, and I should like to give my reasons. If they fail to convince, I shall be pleased to have a look at it again; but this is how the matter appears to me. As the noble Lord said, it is intended to give effect to the Hurst Committee's recommendations in paragraphs 125 to 128, that the court should be given power, when refusing an application for an adoption order, to direct the local authority to bring the child before a juvenile court for consideration whether the child is in need of care or protection within the meaning of the Children and Young Persons Act, 1933. The child who is awaiting adoption is under the supervision of the local authority for at least three months before the application for the adoption order is heard, so that his circumstances will be well known to the local authority. Secondly, under Section 62 (2) of the Children and Young Persons Act, 1933, the local authority already have a duty to bring before a juvenile court any child who seems to them to be in need of care or protection within the meaning of that Act. In addition, Clause 35 and the new First Schedule, which we shall come to in a moment, and which replaces Part III of the Adoption Act, 1950, enable a juvenile court, on the complaint of the local authority, to make an order for the removal of the child from unsuitable surroundings. In these circumstances, when there are all these safeguards, I do not think that this Amendment is necessary.

There is one other point which should be borne in mind. If the noble Lord, Lord Burden, has in mind that the refusal to grant an application for an adoption order should automatically bring the child within the definition of being in need of care—

LORD BURDEN

No.

THE LORD CHANCELLOR

I was not sure whether the noble Lord had that in mind—because clearly the Ingleby Committee can consider it, if they think it is a relevant matter. The noble Lord is aware that there is a Committee on Juvenile Courts, under my noble friend Lord Ingleby, sitting at the moment. I mention that fact because I wanted the noble Lord to know that I have this point in mind. In those circumstances, I hope the noble Lord will find himself able not to press his Amendment.

LORD SILKIN

May I ask whether it is not the case that the court can at any time, when they refuse to make an adoption order, recommend—they may not be able to direct—that the local authority take the matter to a juvenile court?

THE LORD CHANCELLOR

They certainly could; and I think they do.

LORD BURDEN

In view of the explanation given, and the undertaking that the matter will be looked at again carefully (I think the new Schedule has some bearing on the point I raised), I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clauses 22 and 23 agreed to.

Clause 24:

Provisional adoption by persons domiciled outside Great Britain

(3) A provisional adoption order may be made in any case where, apart from the domicile of the applicant, an adoption order could be made in respect of the infant under Part I of the principal Act as amended by this Act, but shall not be made in any other case.

5.27 p.m.

LORD SILKIN moved to add to subsection (3): Provided that the period of notice required to be given in paragraph (b) of subsection (6) of section two of the principal Act shall be six months.") The noble Lord said: During the Second Reading some attention was directed to Clause 24, which deals with the case of children who are proposed to be adopted by people not domiciled in this country, and whom it is proposed to take abroad. The matter was somewhat controversial, and there was a good deal of objection taken to the clause. Obviously, this House has not taken that view. I think it was the general feeling that some additional safeguards ought to be provided in the case of children who are taken abroad. My Amendment is designed to provide one additional safeguard.

In the normal case, before a child is adopted three months' notice has to be given; and in those three months inquiries are made by the local authority, and all kinds of investigations take place. Three months is adequate for that purpose. But my noble friend and I felt that in this kind of case three months might not be adequate. One not only wants to make inquiries about the people who are going to take the child abroad and who are not domiciled in this country; one also wants to make inquiries abroad as to what are the conditions in which the child is going to be living when it gets there; what kind of supervision exists in those countries, and so on. So it was felt that in such a case the time should be six months instead of three. There is one other small factor and that is that there is an advantage in allowing the child to be with the foster parents for a little longer period before it actually goes abroad. Even six months is not too long, but it is substantially better than three. For both these reasons, I beg to move this Amendment.

Amendment moved— Page 14, line 46, at end insert the said proviso.—(Lord Silkin.)

THE LORD CHANCELLOR

May I say at once that I fully recognised in the House the feeling that, while noble Lords were prepared to accept the change in the law, it should be done only subject to safeguards which satisfied people generally. Therefore, I am completely prepared to consider this Amendment. I cannot accept it as it stands, because I am told there is a difficulty, in that during the period between the date of the notice and the date of the hearing the applicants are under the supervision of the local authority. Apart from the merits of the Amendment, it will not in its present form do what the movers want, since it leaves the period for which the infant must be continuously in the care and possession of the applicant at three months. The noble Lord, Lord Silkin, is fully aware of that point. Therefore I should like to consider the form of the Amendment, if he will allow me the opportunity.

This is a difficult point, and if noble Lords will bear with me I should like to put the considerations that we had in mind, so that if the proposal comes up for discussion again noble Lords can help me, and those who have to consider the Bill in another place, upon it. As I see it, there are three objects in having the longer period; first, to discourage casual attempts by people visiting this country to obtain the custody of an infant, with a view to its eventual adoption abroad secondly, to afford the local authority and the guardian ad litem a longer period in which to form the views they may wish to put before the court; and thirdly, to ensure that there is adequate time to make inquiries about conditions in the country of domicile of the applicant.

In regard to the first, I did not feel greatly impressed, because I thought that the usual three months' notice for which the Bill provides is probably sufficient to discourage the casual applicant. In practice, they would need to stay in the country more than three months, since they must first obtain the care and possession of the infant. On the second point, I should like noble Lords to consider (because they have so much local authority experience) whether the six months would really fill a need on the part of the local authorities, or what they think on the period there. As to the third of my suggested objects, to ensure that there is adequate time to make inquiries about conditions, I would inform noble Lords that the intention is that I should provide by rules that the guardian ad litem should notify the court in all applications, whether for provisional or ordinary orders, when his inquiries are complete; and only thereafter would the court be able to fix the date for the hearing. I intend to do that by rules.

I put these points because I should not like noble Lords to think that we had chosen this period without consideration. In view of what the noble Lord, Lord Silkin, has said, and also of his, I think, correct estimate of the general opinion in the House, I shall be pleased to consider this Amendment; and again I shall let him and the noble Lord, Lord Latham, know as soon as I can. I think that my noble friend Lord Conesford was interested in this point too; he mentioned it in his speech on Second Reading. I will let them know what we have in mind with regard to it, after we have given it full consideration.

LORD SILKIN

I am much obliged to the noble and learned Viscount. The noble and learned Viscount has several times referred to the making of rules. They will not be made under this Act, will they? Are they rules under the principal Act?

THE LORD CHANCELLOR

There will be statutory rules. I will give the noble Lord the actual reference.

LORD SILKIN

I beg leave to withdraw the Amendment.

LORD LATHAM

On the question of rules, will the rules prescribe the information which the court must have as regards a child adopted and taken out of this country—for instance, information about the labour laws, the education facilities, adoption law and that kind of thing, in the country to which the child may go?

THE LORD CHANCELLOR

I should not like to tie myself to every one of those, but to the best of my knowledge they will certainly deal with the necessary information.

LORD LATHAM

As a generality.

THE LORD CHANCELLOR

Yes.

LORD HAWKE

I hope that my noble and learned friend, in formulating his rules, will not make them too inflexible, because the periods of time and so on put a very great hardship on some people who may wish to come to this country to adopt a child in this country because they cannot have one of their own. I happen to have known a case myself, which fell through because of the difficulties. Generally speaking, the people who are likely to come to this country to adopt a British child are pretty well-to-do, and there is not much chance of abuse and so on; but they do not necessarily have unlimited time during which they can stay in this country in order to satisfy all the formalities.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25:

Registration

(5) Where a child in respect of whom an adoption order has been made is baptised, the entry to be made in the register under section three of the Parochial Registers Act, 18,12, or, as the case may be, the certificate to be transmitted under section four of that Act, shall describe the child as the adopted son or daughter of the person or persons by whom he or she was adopted (with no further qualification in the case of a provisional adoption order), instead of as the son or daughter of the natural parents.

5.38 p.m.

LORD BURDEN moved, in subsection (5), to omit "adopted," where that word first occurs. The noble Lord said: This is the last Amendment standing in my name, and I should like to thank the noble and learned Viscount the Lord Chancellor most warmly for the patient and informative manner in which he has dealt with the Amendments I have submitted. Paragraph 248 of the Hurst Report points out that the present law relating to parish registers requires the names of the child's natural parents to be entered in those registers. The Committee recommend that the child should be registered as the adopted child of the adoptive persons, and Clause 25 (5) of the Bill is, I take it, designed to give effect to this recommendation.

I think we can all agree that the child should be shown as the child of the adoptive persons, but I want to submit quite seriously to the noble and learned Viscount the Lord Chancellor that to show in the parish register that it is an adopted child is unnecessary. I will not say that parish registers are open to all and sundry, but all sorts of people have access to them. Talk can arise from people who have access to them. And remember, too, that they are the registers of the people in a particular neighbourhood. I can conceive, and I am sure the noble and learned Viscount the Lord Chancellor can, how very grievous harm could be done quite unintentionally by people who pass on small talk that little Johnny Smith is not really the son of the parents but is an adopted child. If there were not a safeguard and the parish register were the only record which would show that it was art adopted child, I could see the force of having it there, but the information obviously would be contained in the full form of the certificate issued by the Registrar General. It may seem a relatively small matter, but, bearing in mind what untold grief could arise from, if you like, careless talk in regard to an adopted child, and harm and trouble to the parents who have taken this child, I beg the Lord Chancellor to look seriously at this Amendment which I beg to move.

Amendment moved— Page 16, line 23, leave out ("adopted").—(Lord Burden.)

THE LORD CHANCELLOR

I think this is the first time this afternoon that I have been urged to turn down the recommendations of the Hurst Committee. I am sorry that the noble, Lord, Lord Silkin, is not with us, because he just made an eloquent appeal to me to remember how important it is that Ministers should abide by recommendations in approved Reports unless they have the strongest reason for not doing so. That is the test. Has the noble Lord, Lord Burden, given us the strongest reason for not doing it?

May I just remind him of the position. At present registers of baptism are maintained under the Parochial Registers Act, 1812—Tchaikovsky: I am right this time. I am glad to have my reference confirmed by the noble Lord. Section 3 of that Act requires entries in the register to be in these terms—I quote from the columns of the register. The first column is the child's Christian name, and the second column is the parents' name, Christian and surname. Baptismal certificates under Section 4 of the Act include the same particulars. Where the child baptised is an adopted child the Act, taken literally, requires the names of the child's natural parents to be entered, and, in many cases—I think this is common ground—that would be most undesirable, for reasons that we have considered. I think that was the general view of the Committee.

The question is, how that provision should be modified. As we have heard. the Hurst Committee, reporting in April, 1954, recommended in paragraph 248 that provision should be made for an incumbent to register the child as the adopted son or daughter. That is what Clause 25 (5) would do. This is not a matter that I would dogmatise upon myself, but, naturally, I have taken the trouble to find out about it. I understood the general view was that the child ought to know at a reasonably early age that he or she was adopted; that that was not a matter which should be kept in secrecy, because it was generally thought that the shock would be worse if it came later. Therefore, on the general view of the Committee, I cannot see why there is an objection to that provision.

It might be argued—I am trying to face up to the possible points—that the Hurst Committee further recommended in paragraph 196 that Section 10 of the Adoption Act, 1950, should be amended. I will quote their words: … so as to give the adopters the status, with all the rights, duties, obligations and liabilities, of parents in relation to all matters concerning the child. But Section 10 of the Adoption Act, 1950, provides that the rights, duties, obligations and liabilities of a parent in relation to custody, maintenance and education of the child shall rest in the adopters.

I have not been able to find any evidence of a defect in that provision or any real need for a change; indeed, I have not so far met anyone who knows precisely what the recommendation in paragraph 196 is intended to mean or what effect it would have in law. But we have considered this point most carefully. Before giving instructions for the drafting of the Bill, my right honourable friend the Home Secretary naturally consulted the most reverend Primate the Archbishop of Canterbury on this point, and the most reverend Primate informed the Home Secretary in due course that the Steering Committee of the Convocations of Canterbury and York and of the House of Laity, having considered the arguments, are convinced that baptismal registers should be factually correct and not misleading. On that, and in weighing up all the considerations, we have decided to follow the view of the Hurst Committee. I hope I have shown Lord Burden that I have tried to consider the point. I have considered what he has said, but I do not think we ought to depart from the Committee's recommendation. In those circumstances, I think we ought to leave the matter where it is.

LORD BURDEN

I am not going to follow the Lord Chancellor into what the most reverend Primate thought. All I can say is that, with the permission of the Committee, I can withdraw the Amendment, because the point about entries in parish registers is not so important to-day as it was in 1812. It may be that a question of conscience comes into this, or rather the desire to have a child baptised. The entry made then may show to the world what has happened, so it would be a question for the person concerned to decide whether or not to have the child baptised. In those circumstances, and against the advice that the Lord Chancellor had, it is not incumbent upon me to press the Amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clauses 26 to 34 agreed to.

Clause 35 [Application of Part I to children awaiting adoption or placed by third parties]:

5.49 p.m.

THE LORD CHANCELLOR moved to leave out Clause 35 and to insert the following new clause:

Children awaiting adoption or placed with strangers

"35. The provisions of the First Schedule to this Act shall have effect for making in relation to certain children awaiting adoption or placed with strangers provision similar to the provision made by Part I of this Act in relation to foster children."

The noble and learned Viscount said: Perhaps the Lord Chairman would allow me, if the Committee so signified, to deal with the next seven Amendments together because they all arise out of the point on which the noble Lord, Lord Latham, was good enough to express his gratitude earlier to-day. I have tried to meet the point that he raised on Clause 35 by leaving out the clause and putting in a short introductory clause and a Schedule, dealing in full with the matters by which Part I of the Bill is related to the adoption cases. That is the plan that we have followed, and the clause does what I have said.

As Lord Latham has already mentioned, the First Schedule may be somewhat long, but it is clear and related to all the introductory parts of the Bill. Unless your Lordships wish me to do so, I do not intend to go through it and give your Lordships a summary of that Schedule. I hope that the noble Lord, Lord Latham, received a note upon it.

LORD LATHAM

Oh, yes.

THE LORD CHANCELLOR

I sent him a second note on that point, which I thought might be helpful. It was a note given to me, and as it was rather long I thought it might also help him in considering the matter. With that short introduction, I think the new clause and the Schedule speak for themselves. The five remaining Amendments are consequential. I beg to move Amendment No. 12.

Amendment moved— Leave out Clause 35 and insert the said new clause.—(The Lord Chancellor.)

LORD LATHAM

I rise only to say how much I appreciate what the Lord Chancellor has done, though there is one little matter which rather intrigues me, and perhaps the Lord Chancellor can answer it. It is not on the question of the proposals actually in the Bill. In the Bill as printed, on page 22, the rubric to Clause 35 uses the words: Application of Part I to children awaiting adoption or placed by third parties. In the new clause and Schedule the reference is to: Children awaiting adoption or placed with strangers. I wonder whether the Lord Chancellor can explain whether the alteration has any real significance.

LORD HAWKE

Perhaps he can also explain what "placed with strangers" means. I was puzzled by those words.

LORD LATHAM

I think the answer to that can be found in the Bill.

THE LORD CHANCELLOR

By a fortunate dispensation of Providence, sidenotes do not form part of the Bill; they are there simply to show courts the drift of the Bill when it is enacted. But looking at the words, "Children awaiting, adoption or placed with strangers", I think the answer to the noble Lord is this. The clause and Schedule provide for the supervision by the local authority of the two following categories of children, which together are defined as "protected children". In category (a) there is the child placed for adoption in law or in fact in the care and possession of an adopter who is not a parent, relative or guardian, in pursuance of arrangements in which an agent other than a parent or guardian takes part; in category (b) there is the child who is awaiting legal adoption; that is where the child is in the care and possession of a person other than the parent of the child, and that person gives notice, under Section 26 (b) of the principal Act, of his intention to apply for an adoption order in respect of the child. There are the two different categories, and I think it is an attempt to deal with the different categories that has led to the sidenote. But whether I am right or not, I take a cowardly refuge in the fact that the side-note is not part of the Bill, and therefore I have not the responsibility myself of having to construe it legally in the future. If that explanation has not been entirely satisfactory, I hope your Lordships will accept it as the best I can do. No man can do more.

LORD CONESFORD

May I put one question to my noble and learned friend? It concerns the provision now found in paragraph 9 of the Schedule, which provides that a notice under paragraph 7 of the Schedule shall be given not less than two weeks before the child is placed, as mentioned in that paragraph. I think I am right in saying that that period of two weeks is double the period under the present law; nevertheless, it is thought by many persons with expert knowledge on this subject to be insufficient. I do not wish myself to express any opinion on what I think must be a difficult question. I was wondering whether my noble friend could assure us that this matter has been carefully considered, and that he is satisfied that this period of two weeks is the appropriate period to put in this paragraph of the Schedule.

THE LORD CHANCELLOR

I was satisfied. I did not know that there was some doubt upon it, and it seemed a reasonable provision to me, because, as my noble friend Lord Conesford will see, paragraph 7 provides: Subject to paragraph 8 of this Schedule, where arrangements are made for the placing of a child in the care and possession of any person and by reason of the arrangements the child would be a protected child while in the care and possession of that person"— that brings the child within the definition of a "protected child"— every person taking part in the arrangements shall give notice in writing of the arrangements to the local authority. And paragraph 9 requires the notice described in paragraph 7 to be given not less than two weeks before the child is placed, unless it is in an emergency. The corresponding provision is Clause 3 (1) of the Bill (that is the provision that applies) which, as my noble friend will remember, states: A person who proposes to maintain as a foster child a child not already in his care shall give written notice thereof to the local authority not less than two weeks before he receives the child, unless he receives him in an emergency. What I was trying to do by the Schedule was to apply Part I of the Act.

On Question, Amendment agreed to.

Clauses 36 to 41 agreed to.

In the Schedules:

Amendment moved— Page 26, line 1, at end insert the following new Schedule—