§ 2.48 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR
My Lords, it is ten years since a measure bearing this title—the Children Bill—came before your Lordships' House. That Bill, which was enacted as the Children Act, 1948, was a large measure of social reform. The present Bill deals with two categories of children who are cared for apart from their parents but not by local authorities or voluntary organisations—those who are fostered for reward and those who are adopted. I hope to show that this is an important measure which can justly claim our closest attention and sympathy. I am most grateful to the various societies and individuals who have written to me about the Bill. I invite your Lordships to examine it with critical care. I say "critical care" because this measure concerns the happiness and well-being of children, and I can think of few subjects of legislation where we need to be more sure that our proposals are the wisest, the safest and the most humane that we can devise.
The first Part of the Bill consolidates and modifies what have hitherto been called the child life protection provisions of the law. The second Part amends the law of adoption in the light of the recommendations made by the Hurst Committee in their Report on the adoption of children. I shall discuss each Part in turn. The child life protection provisions of the existing law are contained in the Public Health Act, 1936, and the corresponding enactments relating to London and Scotland and in the Children Act, 1948. They provide that anyone who undertakes for reward the maintenance of a child under school leaving age apart from his parents must give notice to the local authority. The local authority must arrange for the child and the premises to be visited; may fix the maximum number of children to be kept in the premises; may impose other conditions to be complied with, and may apply to a summary court for an order for the removal of a child who is being kept in unsuitable premises, by unsuitable persons, or in an environment that is detrimental to him. Where the foster parent is a relative or guardian, or where 5 the child's welfare is already the responsibility of a competent authority, the provisions do not apply.
These provisions originated towards the end of the last century, when their primary object was to bring baby farming under public supervision and control. The age of the children within the scope of the law was raised in 1908 from five to seven. I hope that your Lordships will allow me a short excursus. If my memory is right, that was done by the Children Act, for which the noble Viscount, Lord Samuel, was largely responsible; and (if he will allow a personal memory) I seem to remember that forty years ago there hung outside his study a cartoon from Punch picturing as Sir Isenbras at the ford those features with which your Lordships' House is now so familiar. I am glad to feel that as one of his successors at the Home Office I was carrying on the work which he developed so well fifty years ago. The age was again raised in 1932 to nine, and in 1948, on the recommendation of the Curtis Committee, to school leaving age. The provisions were not substantially altered in other ways. They are now out of keeping in some respects with other legislation introduced in recent years for the welfare of children, and a judgment of the High Court in 1954, in the case of Wallbridge v. Dorset County Council, has meant that in England and Wales at least their application is uncertain.
We have not found that any radical change in the existing provisions is necessary. The main purpose of this part of the Bill is the same as that of the existing provisions—to ensure the well-being of children fostered for reward. But besides re-stating the law in a way that avoids the uncertainties arising from the High Court judgment, we have thought it advisable to modify the code so as to bring its general shape, emphasis and method more into line with modern ideas and practice. Thus the Bill lays a more positive duty on local authorities to ensure, the well-being of children fostered for reward, and puts a new emphasis on prevention by empowering the local authority, subject to appeal to a court, to prohibit a child's being received in an unsuitable foster home. As under the existing law, there are exceptions for children looked after by 6 a relative or guardian and for those whose well-being is already the responsibility of a competent authority. The Bill also provides a new exemption for children whose care and maintenance are undertaken for not more than a month, and thus excludes many holiday arrangements to which it is inappropriate that the provisions should apply.
I turn now in more detail to some of the main clauses of the Bill. Clause 1 places in the forefront the purpose of Part I. It says that it is the duty of every local authority to secure that children within their area who are foster children are visited from time to time by officers of the authority; and these officers are required to satisfy themselves as to the well-being of the children and to give such advice as to their care and maintenance as may appear to be needed.
Clause 3 provides the means whereby the local authority obtain the information they need to enable them to carry out their duty. A person who proposes to maintain a foster child must tell the local authority not less than two weeks before he receives the child (unless he is received in an emergency), and the local authority have the power to obtain information about the child or its parents or guardian, or any person who was previously looking after him. At present, the requirement is to give one week's notice in advance. The extra week will facilitate inspection and other necessary action by the local authority before the child is received. This duty placed on people who propose to maintain foster children may be an inconvenience to citizens who are admirable foster parents; but we have simplified the form of notification, making it as short as possible, and some arrangement of this kind is inevitable if the local authority are to be enabled to detect those cases in which children may be harmed either deliberately (there are, unfortunately, a few people who are capable of that) or by ignorance. The local authority can exempt anyone from the duty to give notices.
Clause 4 also deals with the local authorities, and gives them the powers they need to carry out the duty of ensuring the well-being of foster children. A properly authorised officer of the authority is entitled to inspect any 7 premises in which foster children are to be or are being kept. Where premises are used wholly or mainly for keeping foster children—in practice this will usually be a commercial institution, as contrasted with a private house—the local authority can impose requirements on the person keeping the children. The local authority may specify, for example, the number, age and sex of the children who may be kept there, and may make requirements about the accommodation and equipment, the medical arrangements and the staff. The local authority may also prohibit a person from keeping a foster child if they think it would be harmful to the child. There is a right of appeal to a court against any requirement or prohibition, and there are penalties for any contravention of a requirement or prohibition and also for any failure to give notices or information.
Some people are prima facie unsuitable to keep foster children. The existing law specifies certain categories of people who may not keep foster children without the consent of the local authority. The list is now out of date, and we think that Clause 6 now comprehends people whose past history contains some recorded event that would justify special precautions before they are allowed to look after other people's children for reward. The sort of thing we have in mind is if the people have been convicted of offences against children or have had their own powers and rights limited in regard to children. Disqualification is not absolute, since circumstances may have changed or may prove, on investigation, not to be such as to warrant barring the person from keeping a foster child. My Lords, I have dealt so far with conditions and prohibitions on the keeping of foster children. There is also a power, similar to the power under the existing law, to remove a foster child from unsuitable surroundings. This power, in Clause 7, may be exercised only on the order of a court on the complaint of a local authority, and there is provision for a single justice to act in an emergency.
The provisions of Part I of the Bill extend to children kept during the holidays—I repeat, during the holidays—in a school not maintained by a local education authority in England or Wales. In 8 those cases the provisions apply with certain modifications. The school authorities are not required to give particulars of each child, and the local authority do not have the power to impose requirements or prohibitions; but if conditions are so bad as to justify such a course, the local authority can apply for a warrant for the removal of children. In Scotland, where the numbers are much smaller, and the Secretary of State bears the central responsibility for both education and child care, supervision of these children will be exercised by the Secretary of State's child care inspectorate; no special provision is needed to enable this to be done.
In continuation of a provision made in the Children Act, 1948, there is also an extension of all the provisions in Part I to children above compulsory school age if, first, they are already under supervision when they reach the upper limit of compulsory school age, and, secondly, they continue to live with the same person. These children remain under supervision until they reach the age of eighteen or leave the foster home, or for any other reason, apart from age, cease to fall within the definition of a foster child.
My Lords, I now turn to Part II of the Bill, which consists of amendments of the Adoption Act, 1950. It may interest your Lordships if I very shortly remind you of the history of adoption legislation in this country, because the first enactment relating to adoption dates from as recently as 1926. There was a Scottish Act in 1930; and again, I think, if my memory is right, the Scottish Act owes many of its provisions to the noble Lord, Lord Mathers. There were other enactments in 1939 and 1949. These Acts were consolidated into the Adoption Act, 1950. In 1953, two Secretaries of State (my right honourable friend Mr. James Stuart and myself) appointed a Departmental Committee to consider the present law relating to the adoption of children and to report whether any, and if so what, changes of policy or procedure were desirable in the interests of the welfare of children.
This Committee, under the chairmanship of the late Sir Gerald Hurst, whom many of my older colleagues will remember in another place, reported in 1954 9 and Part II of this Bill is based in substance on the main recommendations of the Hurst Committee's Report. I desire once again to express my personal gratitude to the Committee for the work that they did. I do not propose to discuss in detail the recommendations of the Report, many of which deal with technical matters, but I would say here that, of the recommendations which do not find a place in this Bill, many will be implemented by means of rules and regulations. Despite the comparative modernity of legislation with regard to adoption, it is already established as a social practice in the community. But experience has shown ways in which there is room for improvement, and I propose now to discuss the principal changes made by Part II of this Bill.
The first important change is in Clause 18, which, amongst other things, provides a further ground on which the court is able to dispense with the consent of a parent to the adoption of his or her child. The proper balance between the best interests of the child and the rights of the natural parent is often very difficult to obtain. Adoption is not a case in which the welfare of the child can be the sole and paramount consideration: we are bound to provide that courts should consider also the reasonable wishes of the natural parent. But there are occasional cases in which a parent has for long shown no sign of carrying out the ordinary responsibilities of a parent and no sign of any intention to do so; yet nevertheless refuses to consent to an adoption which would in every way be in the interests of the child. The Bill provides that a court may dispense with the consent of the parent on two grounds: first, that the parent has persistently failed, without reasonable cause, to discharge the obligations of a parent; and, secondly, that the parent seems likely to continue to do so if the adoption order is not made. I hope that this amendment will commend itself to your Lordships as reasonable and desirable.
Clause 22 contains a number of provisions the general intention of which is to extend or clarify the effects of an adoption order in the interests of the adopted person. These provisions are perhaps better discussed in detail in Committee, and all I will say here is that they extend the circumstances in which an adopted child shall be treated as a child 10 of the family for the purposes of succession to property, and equate adopted children with natural children for purposes of certain insurance policies. There are also provisions in respect of affiliation proceedings.
My Lords, I come to another and perhaps a rather more controversial point. One of the ways in which the existing law has been found to cause hardship in its operation is in its requirement that an applicant for an adoption order must be domiciled and resident in England or Scotland. To those of your Lordships who are not lawyers, "domicile" is roughly equivalent to permanent residence, which may either be a domicile of birth or a domicile which the person himself has adopted—a domicile of choice; but it is permanent residence as opposed to residence for the year. The effect of a judgment in the High Court some years ago on the meaning of "resident" is to rule out people whose time is spent mostly abroad, even though they regard this country as their home. For example, people working in the Commonwealth or foreign countries, or abroad in the armed services, are not eligible, even though they may spend some months at a time on leave in this country. Clause 23 enables these people to apply for an adoption order, provided that they can spend the requisite three months' probationary period in this country.
I have dealt so far with people domiciled in England or Scotland but ordinarily resident abroad. We have also considered people who are not domiciled in Great Britain but who are living here and want to obtain the custody of a child during their stay and to be able, if they desire to leave the country at any time, to take the child with them with a view to adopting him in the country of their domicile. Clause 24 allows them to do this.
My Lords, I am well aware of, and I have tried to consider, the view that this provision may on the face of it appear a dangerous one; but I want to point out at once that the Bill provides stringent safeguards. I also ask your Lordships not to forget that the provision will apply to suitable adopters of British nationality who are domiciled abroad—to Canadians and Australians, for example—as well as to those of other nationalities. A person who wants to 11 obtain the custody of a child—and he will obtain it by what we call a "provisional adoption order"—must satisfy the court of his suitability and must in every respect, except that of his domicile, fulfil all the qualifications required of an applicant for an ordinary adoption order. Furthermore, applications of this kind can be heard only before a sheriff in Scotland, or the judge of a county court or the High Court, in England, so that the more difficult questions of adoption law in other countries, which may sometimes fall to be considered, may be examined by a highly qualified judicial Bench.
Although it is true that there are more people in this country wanting to adopt children than there are children available for adoption through adoption societies or local authorities, there are still many children for whom no suitable adoptive home can be found. But there are sometimes people domiciled abroad who are eminently suitable and willing to adopt these children, and we have asked ourselves whether it is right to continue to prevent the children from enjoying the benefits of adoption, restricting them to a childhood and youth spent in institutions which, however admirable they may be, can never fully take the place of a good home.
For example, several cases are known where some people have quite evidently shown themselves to be admirable candidates for an adoption order. Some were coloured Americans who wanted to adopt coloured British children, for whom there is little prospect of adoption in this country. But when the time comes for these people to return home, the child cannot go with them because the law forbids it. We think that the time has come to change the law. I would emphasise once again that this is not an unrestricted right, that the application is considered by the court, and we can be confident that courts will grant orders only when they are fully satisfied as to the suitability of the applicants and of the home to which the child will go.
At the same time as it introduces the provisions in Clauses 23 and 24, the Bill revokes the provision in section 40 of the Adoption Act, 1950, under which British people resident abroad can, if they get a licence from Bow Street or a sheriff court, have a British child sent to them or take 12 him with them for adoption. The Hurst Committee thought—and the Government agree—that the licensing scheme was unsatisfactory because it omitted the three months' probationary period. If that safeguard is needed where the child is to remain in this country after adoption, it is surely needed where the child is to go abroad. I know that this matter has worried some people—I have in mind especially international social services. I should ask those who are worried about the omission of this provision, which previously existed in Section 40 of the 1950 Act, to consider again our Clauses 23 and 24 and perhaps to do me the honour of considering the argument that I have put forward in this speech.
The last of the major provisions to which I wish to draw attention are those in Clause 35 which apply Part I of the Bill—that is, the provisions for the supervision of foster children—to children who have been placed for adoption, whether in law or in fact, under arrangements in which some agent has taken part, and to all children who are awaiting legal adoption. This follows the pattern of the existing law. In both classes of case the object of supervision is to ensure the wellbeing of the children.
My Lords, I come now to a point where we have not followed the recommendation of the Hurst Committee. As your Lordships may remember, I mentioned earlier that not all the recommendations of the Hurst Committee are dealt with in the Bill, and that many will be implemented by rules and regulations. But a few have not been accepted, and of these perhaps the one which has aroused most interest is the recommendation that in England and Wales an adopted person should be given the right, on reaching the age of twenty-one, to have a copy of his adoption order and be able to find out the names of his natural parents and other information about them that is given in his original birth certificate. In Scotland, since 1930, he has been able to do so at the age of seventeen, but the Committee recommended that the age should be raised to twenty-one. The noble Lord, Lord Mathers, perhaps will remember moving a provision in regard to Scotland when that Bill was before another place.
There are arguments for and against making these changes, but since the innovation proposed for England has caused 13 anxiety to some of those with great experience in adoption matters, Her Majesty's Government propose to leave the law as it stands and do not propose to adopt the Committee's recommendation that in England the child should be entitled to this information as of right at the age of twenty-one. We propose to leave the law as it stands in both England and Wales, where the information can now be disclosed only if a court of competent jurisdiction so orders, and as it is in Scotland—that is, as the noble Lord. Lord Mathers, proposed it to the House of Commons some twenty-eight years ago. Accordingly, the Bill makes no provision in this matter.
Thanks to your Lordships' patience. I have outlined the main provisions of the Children Bill. I am confident that its general aims are sure of receiving support. No doubt the detailed methods employed to achieve its objectives will be the subject of careful examination in Committee. I should be the last to claim perfection at the time of Second Reading for any Bill which I introduced; but I am sure that I can ask this House to give this Bill a Second Reading, thus signifying our support in principle for yet another measure designed to safeguard the happiness and security of children who for one reason or another, are denied a home of their own. I beg to move that the Bill be now read a second time.
§ Moved. That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.13 p.m.
§ LORD SILKIN
My Lords, I should like first to associate myself entirely with the thanks which the noble and learned Viscount has tendered to the members of the Departmental Committee on the adoption of children. They sat for a year and a half. They made their Report in September, 1954, and have had to wait only three and a half years (as against the usual seven years) before their Report was put into legislative form. I should like also to congratulate the noble and learned Viscount on having, as Sir David Maxwell Fyfe, set up this Committee and on having, as the noble and learned Viscount, Lord Kilmuir, introduced the Second Reading of this Bill here—all within a period of five years. That is not bad going, 14 and I am sure it must be a great satisfaction to him to be able to introduce a Bill of this kind which he had the duty of initiating in another place some years ago.
This debate is really an interlude between two days of discussion last week on defence and a continuation of that debate for two days this week on foreign affairs. I would submit that the interlude to-day is not wholly unconnected with the world problems which we have been and will be discussing. Last week we discussed the defence of our way of life by military means, but a number of speakers in that debate emphasised the importance of competition in ideas and in service in demonstrating that what we have to offer in our care for the welfare of the individual, and especially of those least able to take care of themselves, is worth preserving and is something for which it is worth making sacrifices; and that we can set in our domestic life an example which will stand comparison with anything that exists in those countries with whom we are at present engaged in the so-called cold war.
Many of your Lordships will have read the Reith Lectures of 1957 by Mr. Kennan, and I should like to make one short quotation from those lectures:Many of us dislike to think of domestic problems as battlefields on which our contest with Soviet power is transpiring; but that is exactly what they are. In a thousand ways the tone and spirit that characterise our internal life impinge themselves on our external fortunes.So I welcome this Bill, not only on its merits as a further step towards the protection of the most vulnerable section of our nation—children who are virtually parentless—but also because it is a recognition of the fact that, in spite of our own preoccupation with military defence, we have other weapons in this world struggle, and this is one of them. Legislation relating to children is not very much publicised and, judging by the appearance of this House this afternoon, not very popular. It is not glamorous or exciting. It does not lend itself to violent political controversy; and I can promise the noble and learned Viscount that so far as we on these Benches are concerned there will be no violent political controversy this afternoon.
The Bill provides an opportunity for paying a tribute to many people who in 15 the cause of children are working quietly behind the scenes without any hope of honours or reward. It is not often that we have the opportunity of saying a kind word for them; but there are in this country a vast number of people who have given years of their lives, often at considerable sacrifice, in the cause of children. I know of some who have spent thirty or forty years in this single-minded manner, devoting the whole of their thoughts and energies to this one cause; and I would submit that this is an occasion when we might pay a tribute to the work that they have done.
I would say a word particularly on behalf of the adoption societies. In the last thirty years their number has doubled, and a very large number of people are concerned in making those societies a success. This Bill is their reward. It is by no means all they desire: there are some things omitted from this Bill which they would rather have had included, and there are included in the Bill some things which they would rather have had omitted. They are not unique in that respect: we all find ourselves in that position. But they would be the first to admit that, on the whole, this Bill is a very great improvement and, generally speaking, is satisfactory.
In view of the full and careful explanation which your Lordships have heard from the noble and learned Viscount, I do not think it is necessary for me to speak on anything in any great detail. I want, however, to draw attention to the fact that adoption of children is playing a considerable part in the social life of this country. Last year there were some 14,000 legal adoptions, apart from unofficial adoptions, every one of which had to be scrutinised by a competent court and approved; and, as the noble and learned Viscount has said, there is still, contrary to general belief, a considerable unsatisfied demand for suitable children to adopt.
In the last fifty years there has been a considerable amount of legislation on the subject of children, and quite rightly. If your Lordships will look at the First and Second Schedules to the Bill you will get some idea of the large number of measures that have been passed between 1908 and the present time. In this Bill no fewer than twenty-seven 16 Statutes are referred to, either by way of comment or by way of amendment.
The noble and learned Viscount has put his finger on two points in the Bill which will be the subject of considerable discussion and controversy, and before I say anything on those points I should like to make one suggestion which I hope he will see his way to accept. He will observe that the Hurst Report deals most exhaustively, and in a thoroughly interesting manner, with the subject in some 300 paragraphs; the Committee made forty-eight principal recommendations and a number of minor ones. It is difficult for anyone taking an interest in this Bill to ascertain, without an immense amount of work, which of these recommendations have been accepted and which rejected. I have tried, but life is short and I just had to give it up. No doubt the information is available to Her Majesty's Government, and it would be a great help if we could be told which of those recommendations are being accepted, which of them can be dealt with by administration, as the noble and learned Viscount has suggested, and which require legislation.
So I would suggest that we might have a table showing in simple form how the Government have dealt with each of these recommendations. In cases where they have not been accepted, perhaps it would be possible to state in a few words the reasons. If this could be done, I think it might simplify and curtail the work on Committee. It would save some of us from putting down Amendments which are already covered by the Bill, and generally. I think, would increase the interest of noble Lords in the measure besides helping us to understand exactly how far the Government have got in implementing the Hurst Report. If the Government agree to provide this table, I hope that they will do it so as to give ample time for it to be studied before the Committee stage.
The noble and learned Viscount on the Woolsack has dealt with two main subjects, one of which is in the Bill and the other is not. These were in fact the two matters on which I was going to venture to say a few words to your Lordships. The first, the provision not in the Bill, is the recommendation set out in paragraph 201 of the Hurst Report, dealing 17 with inquiries by the adopted person himself. I myself have given the matter very careful thought and I have come to the conclusion that the Committee were right. They were unanimous in recommending that, at the age of twenty-one, an adopted person should have the legal right to go to the registrar of the court before which his adoption was approved and to see what documents are available there which will throw light on his origin and the circumstances under which his adoption was carried out. The noble and learned Viscount was quite right: there are, of course, two sides to this question. Both sides were put to the Committee, and the Committee were unanimously in favour of giving to the person this right. I recognise that there are grave dangers. There is the danger, as is set out in the Report, of the adopted child using this information wrongfully; of the child breaking into a happy family where his existence was not known, and there are all the other dangers which your Lordships can conjure up—even the danger to the child himself of finding out something which it would be better that he did not know. May I reassure your Lordships on one point? Most of the children are illegitimate, and they know from a very early age that that is so. It is a good thing that they should know that, and should get over such unhappiness as they might feel on the subject and take it for granted as they go on in life. So it is not the discovery of illegitimacy which we may fear. They already know that.
Those then are the dangers. On the other hand, there are some children who have a burning desire to know about their origin, and in such cases if the knowledge is kept from them it may do them considerable psychological injury. They will go through life with a question mark: Who are they? What are they? Where do they come from? That does not apply to many. I think the majority of young people at the age of twenty-one who have been happy with their foster parents would be quite content to leave well alone and not to bother. We have the experience in Scotland where this practice has been in operation as regards children from the age of seventeen upwards. So far as I am aware, no harm has been done and relatively few children take advantage of the opportunity. But in the case of those who do wish to do so, I submit that it would 18 be wrong of us to deprive them of the right to knowledge about themselves and about the origin of their birth.
I know that the Government have considered the matter and have given great weight, as they should do, to the views of those who are taking an active part in the work of adopted children; and I freely admit that those people, who ought to know, take a different view from my own. However, I think it right to put this view before your Lordships. It is a view which is very strongly held by a number of people, and, to put it no higher, it seems to me to be an infringement of human rights to prevent a child from having as much information as is available about his origin. There I leave the matter. I do not know whether it would be possible on Committee stage to have another discussion on it, but I think it might be well worth while to have the matter fully threshed out.
One the second point, with which the noble and learned Viscount dealt—the question of taking children abroad—I am completely in agreement with the view which he put forward and have nothing to add to it. I think that he has put the case fairly. Of course there are arguments for and against. In this case the noble and learned Viscount has disregarded the advice of the adoption societies, and the Government have taken their own line and also the line of the Committee. We recognise that the alternative, in the case of a good many of these children who would otherwise have an opportunity of being adopted and going abroad, is that they should live in an institution. I feel that they should not be deprived of this opportunity. But, having said that, I would add that we must recognise that there is some danger in sending children abroad; and if we grant these provisional orders we must be absolutely sure, so far as human thought and effort can prevail, that these children will be properly cared for in the land of their adoption.
It may be that further safeguards might be considered on the Committee stage of the Bill to ensure that that is so. But, speaking for myself—and this is by no means a Party question—I take the view that, provided we can import into this Bill, either by legislation or by administration, all possible safeguards to prevent 19 children from going abroad and living in wholly unsatisfactory conditions, we ought to accept the provisions of Clauses 23 and 24.
Of course there will be other points, with which I have not attempted to deal on Second Reading, at which we shall look when the Bill is considered in Committee. I have said nothing about Part I, which relates to foster parents, because there is no particular comment I wish to make. I will conclude by wholly welcoming this Bill as marking a further stage in the advancement of the welfare of the least fortunate section of the community—these children—and I hope that it will have a speedy passage through your Lordships' House and another place and will meet with the success which we all wish for it.
§ 3.33 p.m.
My Lords, after the two speeches to which we have just listened, happily it will not be necessary for me to attempt to detain your Lordships at any great length. The noble Lord, Lord Silkin, has dealt with a number of points which no doubt will be fully and further investigated in Committee, none of them points with which I specifically wish to deal. First, I should like to say how grateful I am to the noble and learned Viscount on the Woolsack for the lucidity with which as ever, he has expounded this rather complicated Bill, some of the language of which is legalistic rather than perfectly clear to the layman. I think the Government are to be felicitated on having brought forward, after this long time, a Bill which certainly carries this important matter considerably further.
The noble and learned Viscount said that this was an important Bill, and I do not think that there can be any possible question of the accuracy of that statement. We have moved considerably forward in the last thirty or forty years in this matter of the care of children. I can remember some thirty years ago writing an article to call attention to the evils of what was then rather prevalent in the form of baby farming, of children, unwanted by their parents, being passed on to foster parents, without any inquiries, for a lump sum of money. In that article I ventured to say that this was tantamount to hanging round their children the label "Please murder 20 baby." I was a little horrified to see that taken up and put on a poster all over London with my name underneath, especially as within a week or two of that my own child was born. As she still survives, perhaps any more may be left unsaid. Although that kind of thing is still not impossible, it is made much more difficult by this Bill, and I think that we can all congratulate the Government on having proceeded a long way to the implementation of the Hurst Committee Report.
It seems to me that adoption is becoming more and more important in these days. Both the noble Lords who have spoken have emphasised that there are more babies wanted than there are available. There is, indeed, a baby hunger among many childless couples in this country, and adoption is obviously the only decent and honourable method of meeting this hunger, apart from the rather distasteful method we discussed in your Lordships' House not so very long ago.
There are one or two points to which I should like to draw attention. The noble Viscount said, very properly, that in several respects the Bill did not follow the Hurst Committee's Report. If I may say so, he dealt extremely fairly with the dual sides of the controversy in relation to Clause 18, about the position of the parents as against the adopters. I know that there are two views either of which can be taken. I understand that the law at present says that consent must not be "unreasonably" withheld. The Bill goes further than that, and I am bound to say, though many with whom I am closely associated would not agree with me, that the words:…has persistently failed without reasonable cause to discharge the obligations of a parent or guardian of the infant, and if the failure is likely to continue…represent a very fair holding of the balance, and I am entirely in favour of it.
As the noble and learned Viscount said, there are one or two points in which the Hurst Committee's Report has not been followed. He mentioned in particular the proposal that the child should be able to find out his natural parents' names. But there is one other point, of considerable importance, to which he did not refer, nor did the noble Lord, Lord Silkin—that is. Clause 35, where the 21 period of notice has been lengthened, I am glad to see, to two weeks instead of one. I should have liked to see it Lengthened to six weeks, because two weeks is a very short time for proper inquiries to be made. If a child welfare officer calls several times and gets no answer, it is difficult to remove a child even from unsuitable surroundings. But the Hurst Committee lengthened the time to two weeks and I think that we must base ourselves on that.
There is another recommendation which has not been followed by the Bill and the noble and learned Viscount has not told us why. The Hurst Committee laid down as one of their principal recommendations that all third parties should be made respondents to applications. There is no mention of third parties in the Bill, except in a side-note to Clause 35, which is not part of the Bill. I cannot see why third parties should not be made respondents to an application. Those with whom I have been associated—and I speak with twenty-one years' presidency of the National Council for the Unmarried Mother and her Child—feel very strongly on this point. The noble and learned Viscount on the Woolsack did not refer to it. He said only that there are certain things in the Bill which might be implemented by regulation, and, of course, this may be one of hem. I hope he will be able to give us that assurance, at least. If it is the intention that they should be made respondents, it would seem to me to be more satisfactory that that should be part of the Bill. That is the only real criticism I have. I think the Bill is a good one; am pleased it has been brought in, and I have every hope that it will be passed successfully through both Houses of Parliament.
§ 3.40 p.m.
§ LORD AMULREE
My Lords, I should like to follow the example of the two noble Lords who have already spoken and give a warm welcome to this Bill. I want to associate myself with what the noble Lord, Lord Silkin said: that it would be a great advantage if we could know which of the various recommendations of the Hurst Committee cant be dealt with by regulation, and which cannot. I think that would clear away a great deal of confusion and we should know much better where we 22 stood. One of the most important things referred to by the noble and learned Viscount, the Lord Chancellor, is that when considering the question of adoption the welfare of the child is of paramount importance. I think I should go even further and say that if the parents are unsatisfactory or difficult, then the welfare of the child is the sole matter that should be considered. That is why I would entirely support what the Bill does in Clause 18, where it makes it possible to dispense with some of the precautions previously taken in the adoption of a child.
One of the points made in the Hurst Report and which, I imagine, is implicit in the Bill is that the child should be told that it is an adopted child. It is a great advantage if the child is told that at a comparatively early age. This will not make any great difference to the development of the child, and if the parents are satisfactory it will accept the fact quite well. But if the information is kept from the child until it is of school age, then it may cause great trouble. I am sure it is right that the child should, as soon as it begins to understand things, be told that it is adopted and that these are not the real parents.
That brings me to the point of whether the child should be told the names of the original parents. There, in spite of the persuasive words used by the noble Lord, Lord Silkin, I cannot agree with him, but agree with what is laid down in the Bill. I know that the provision in Scotland is different and I know equally well that there has been no trouble in Scotland. Being a Scot myself, I should tend to support what they do in Scotland, but I am bound to say that in this case I think that what is done in England and Wales is preferable. I am sure that the vast majority of children do not want to know the names of the original parents, and that of those who do want to know, a number want to know for the wrong reasons. I am sure it will make for instability in some families if the children know that at the age of twenty-one they can find out who their parents are. I trust, therefore, that there will be no question of weakening on the part of the Government in respect of that matter.
23 I should like to support the noble Lord, Lord Gorell, on one point which he made. He said that the third party should be made respondent in adoption cases. It seems to me a pity that that point has not been put in the Bill. Possibly this provision can be made by regulation, but I do not know, and perhaps the Lord Chancellor will tell us something about that. On only one point I found the Bill a little difficult to follow. It is in Clause 25 (2), where it appears from the wording at the end that there may be occasions when the name of the child's natural parents will be given in some kind of document which which will not be kept secret but will be kept among the family's papers, to which the child may have access. Possibly I may have read the clause wrongly, but I should like the noble and learned Viscount to give me some satisfaction on that point when he replies. Apart from those few comments, I have nothing but praise for the Bill, and I trust it will have a speedy passage through this House and through another place.
§ 3.49 p.m.
§ LORD BURDEN
My Lords, the noble and learned Viscount on the Woolsack has been overwhelmed by congratulations, but that will not prevent me from adding my mead of thanks to him for this Bill. I should like to associate myself, too, with the congratulations paid by my noble friend Lord Silkin to the work of the adoption societies. I am glad to say that, on the whole, the Bill is welcomed by the Association of Municipal Corporations. After all, it is the local councils who will have a large measure of responsibility for its administration. For example, in Clause 4 (3) a new power is given to local authorities—subject to appeal, of course—to prohibit a child from being received by a person for reward if the local authority considers the person unsuitable. That is a power which the local authorities have for a long time sought in regard to the administration of the Children Acts. It may be that when we come to Part II there will be some observations to make, but I think they can be left to the Committee stage of the Bill.
The Bill is welcomed because—and this is a fact that is sometimes overlooked—the Curtis Committee was set up as a 24 result of conditions of neglect, and something more than neglect, of children, not in local authority institutions, but boarded out. I will not trouble your Lordships by recalling the details. On a Second Reading of a Bill, it is, I believe, in order to refer not only to what is in the Bill, but to what is not in it. Therefore I feel I am justified in asking your Lordships to consider for a moment the position of children who are already in the care of local authorities and in institutions. If my information is correct, the conditions in some of the large institutions in this country are getting as bad, or nearly as bad, as those described by the Webbs in the famous Report of 1909.
May I give one example? In one institution such was the pressure on the accommodation that the only place that could be found for a new born baby to sleep in was in the drawer of a dresser in the kitchen. I suppose no one is to blame in regard to that matter. The local authorities are not to blame; certainly the Home Office is not to blame; nor are the people running the institutions. It comes down to the question of the lack of adequate accommodation for children in institutions, notwithstanding all that has been done for the boarding out of children by local authorities. In fact, the boarding out policy, which is now the officially recognised policy, may in some measure be a reason for the troubles to which I have referred.
The Children Act, 1948, if my memory is correct, effected a sudden change in administration. Prior to that Act, the masters and matrons—or, if you like to call them so, the superintendents and matrons—of children's homes had direct access to the appropriate committees. But the Act of 1948 superimposed on that administration the children's officer, and placed on the children's officer those responsibilities which up to that time had been those of the officers of the institutions. That, I think, caused a sudden change in administration, because the whole pressure, so to speak, is towards the boarding out of children. Whether that is right or wrong is a question into which I will not enter into at the moment; but how many learned psychiatrists know what is going on in the mind of a child of two, three, four or five? It is these learned psychiatrists who tell us that these children should be boarded out.
25 The pressure for boarding out being so strong—not, I would suggest, because of the cheapness of boarding out as compared to the cost of a child per head in an institution—the necessity for adequate accommodation recedes into second place, in the hope, of course, that things will adjust themselves. But I would repeal that if my information is correct—and I have no reason to doubt it—in some of the large institutions to-day conditions so far as children are concerned were never worse. I know I should give the names to the noble and learned Viscount, but I feel I should be wanting in my duty if I did not mention that this afternoon.
There is one minor point I should like to raise, and perhaps I am being hypercritical. It is with regard to Clause 37, which prohibits anonymous advertisements by persons offering to keep children. Again I may be taking an entirely wrong view. Here I should like to pay a tribute to the work of the children's officers, who work in very difficult circumstances. They are doing an onerous and responsible job. But some local authorities or children's officers advertise children to be boarded out, and a list of the desirable qualities of the children are enumerated in the advertisement. I have always felt that to be somewhat objectionable. We have to realise that children going into a family where there are other children rarely really belong to that family. The other children know that that child is being received for payment. They know it is not one of them, and children, despite the idyllic stories we sometimes read, can be very cruel one to another, and the cruelty might not come to the surface. Therefore, while one welcomes this Bill and welcomes the increased powers given to local authorities, I hope that, so far as the local authorities are concerned, when the financial arrangements come to be considered they will have adequate financial provision to enable them to carry out fully and completely the responsibilities which this Bill places upon their shoulders. With that, I give the Bill an exceedingly hearty welcome.
§ 3.58 p.m.
§ LORD CONESFORD
My Lords, I rise also to welcome this Bill and to congratulate Her Majesty's Government upon 26 it. I do not think that any of our Departments has a longer or more honourable tradition of humane legislation than the Home Office. I believe that my noble and learned friend on the Woolsack would concur with me in that view had his experience been no more than that of the ordinary politician or even of a Law Officer. But, of course, he knows the Home Office also as Home Secretary, and I think it must have given him peculiar pleasure that it fell to him, as Lord Chancellor, to introduce this Bill this afternoon—a Bill which carries out many of the recommendations of the Departmental Committee which he, as Home Secretary, set up. I should like to associate myself with what the noble Lord. Lord Silkin, said in congratulating the Departmental Committee. The Chairman of that Committee was an old friend of many of us. I also welcomed what the noble Lord, Lord Silkin, said about the excellent work of the adoption societies.
There are two major matters concerning that part of the Bill which deals with adoption that have been the subject of some discussion this afternoon. I would say a word on each of them. The first is the provisions now contained in Clauses 23 and 24 of the Bill. My noble and learned friend on the Woolsack, cogently though briefly, gave the reasons that persuaded the Government to put in provisions of this kind. Like other noble Lords who have spoken, agree that it was right to do so. I think that many children who under these clauses may get good homes might otherwise have had to continue to live in institutions. That does not mean, however, that there may not be very good reasons for the most searching examination of those clauses to make certain that the safeguards against possible abuses are adequate, and I am certain that my noble and learned friend on the Woolsack will welcome such examination.
If I might mention just one matter that strikes me on reading the Bill (I have no suggestion on how it should be dealt with), some of the most important words in the first subsection of Clause 24 are that the court has to be satisfiedthat the applicant intends to adopt an infant under the law of or within the country in which he is domiciled.27 I was wondering whether it was desirable for the court to be satisfied not merely of the intention to adopt but of the likelihood of such adoption being accomplished, and whether full consideration has been given to the position that might arise if a provisional adoption order made in this country were not, in fact, followed by legal adoption in the country to which the infant was taken. I expect that that matter has been fully considered by Her Majesty's Government, and I think it is a difficult matter. I draw attention to it now only in order to mention one matter on which I think noble Lords in all parts of the House will desire to get as much reassurance as possible, when we consider these clauses in Committee.
The other matter which has been mentioned is the recommendation which was contained in paragraphs 201 and 202 of the Departmental Committee's Report. That is the one important point on which Her Majesty's Government did not follow the recommendation of the Departmental Committee. I am convinced that Her Majesty's Government were quite right in making the decision they did. I agree fully with that decision, and I was glad that it was also supported from the Liberal Benches by the noble Lord, Lord Amulree. There are three parties concerned in this recommendation; the child, the natural mother and the adopting parents. I believe that the change in the law recommended by the Committee would not have been in the interests of any of those three parties, and I believe, therefore, that Her Majesty's Government came to a right decision in proceeding as they did.
There is only one further matter on which I would say a word. I may here be pressing at an open door, because my noble and learned friend on the Woolsack may be contemplating doing what I now suggest that he should in due course do. When the Bill now before the House has been carried into law, the law of adoption will be contained in the existing Adoption Act. 1950—in itself a consolidating measure—and in Part II of the present Bill. That will make it extremely difficult for any layman interested—and many laymen are interested—to find out what the law of adoption is. I very much hope that. when this Bill is on the Statute Book, my noble and learned friend contemplates a new consolidating Act from 28 which the law of adoption can be more readily ascertained. There is no greater authority on consolidation than my noble and learned friend, and if he tells me this is not practicable I should accept his word, but I should also be surprised. I hope that he will give us a word of hope in that respect. There is nothing more wish to say upon this Bill on Second Reading, though there are various matters which we shall no doubt carefully consider in Committee. I welcome the Bill and I thank Her Majesty's Government for it.
§ 4.5 p.m.
§ LORD HADEN-GUEST
My Lords, I am glad to have the opportunity of supporting this Bill, which will be of the greatest service and will be one of the revolutionary changes in the treatment of children that have characterised the last half century, and particularly the last quarter century. For a long time, many years ago, I conducted a clinic in Southwark where we had examples of all the horrors to which child life could be exposed; and there were very many. I feel, therefore, all the more glad to be able to speak to-day, very briefly, as I shall, because it means that now the doorway has been opened to the rearing of healthy, well-proportioned and competent children fit to live in our civilisation and to contribute to it. There is nothing particularly valuable about any particular strain of people in this country. We are all very mixed, and one discovers. if one is a doctor, in a poor area or in a wealthy area, that there is a great deal of mixing of population in heredity, and that there is no special class difference one way or the other, except in so far as it is reflected in their upbringing, in the care which is given to them and in the assistance which is available to them to succeed in life.
This Bill is a very great step forward. I am very glad to find that we are going to pass the Bill—for I have no doubt that we shall. I believe that it will be of the greatest service; and I say that after a great number of years of experience in work in connection with children. Few things can do more good than to improve the condition of the upbringing of children. especially those who are likely to be neglected. In the early days of my work in, Southwark the neglected child, the dying child, the 29 rickety child, the malformed child, with very had rickets, almost unbelievable at the present time, was very common. Now it is very much less common; though it still exists; and there are many other evils which do exist.
I am, as I say, very glad to be here this afternoon and to listen to the speeches which have been made, because it means that there has been a complete revolution in the attitude of a great many people towards the care of children and their future. These children are part of the nation, and they should be given the chance to become fully equipped for life, to have all their faculties developed and to bring our civilisation some steps further. I do not wish to speak to-day on the details of the Bill. I think they are a matter for examination when it comes to the right stage for that purpose. but I feel that we might pride ourselves on dealing with this Bill to-day and look forward to the immense improvement that it is bound to bring to the children of the nation, especially those horn in the poorer ranks.
§ 4.10 p.m.
§ The EARL OF IDDESLEIGH
My Lords, as I was a foster parent "for reward" for some ten years of my life, ceasing in that capacity only some four years ago, I would venture to offer a few comments to your Lordships on Part I of this excellent Bill. The principal point that I would beg the noble and learned Viscount who sits upon the Woolsack to consider is one of publicity. For many of the years during which I exercised my foster functions I was totally ignorant of the obligations which the law imposed, even at that epoch, upon foster parents, and I trust that the lapse of time will be held to have condoned my crime; but I did not, in fact, notify the authorities because I was entirely ignorant that such was my obligation.
This state of ignorance still exists. I came across a case of it the other day—good people who were taking charge of a baby under a most kindly arrangement with the parents. It was entirely proper, and there was nothing wrong about it at all: but they had not notified, and had net the least idea that it was their duty to notify, he local authority of what they were doing. Therefore, I would ask the noble and learned Viscount to convey to the Home Secretary my urgent plea that 30 the means of publicity available to Her Majesty's Government should be exercised to make the provisions of this Bill, when it is enacted, better known. In this matter I am grateful for the remarks of the noble Lord, Lord Conesford. I would also support the noble Lord in his plea for consolidation. When the last Adoption Act was receiving its Third Reading in your Lordships' House I asked the Labour Government of the time for a consolidation of enactments, and that consolidation was granted. I feel justified in making the same request to-day.
There is a further point on which I fear that the provisions of this Bill will not be adequately known. I would remind your Lordships that it affects a great many parents who take foreign children for the period of summer holidays. As your Lordships are no doubt aware—certainly those who are parents will be aware—to-day it is a common thing for parents in France and England, or in Italy and England, or in other foreign countries and England to exchange their children for the purpose of enabling the children to learn a language. I have sent my children to France, and I have received foreign children, some of them under fifteen years of age, in my house, for the purpose of their learning the English language and English customs and ways. Sometimes this is done on an exchange basis, which would still, I think I am right in saying, come within the terms of fostering "for reward"; sometimes it is done on a simple monetary payment. I am a little concerned at the thought that all these numerous arrangements, if they endure for more than one month, as they commonly do, will be brought within this Act.
In the first place, I am not quite sure how one can make people realise that they have the duty of notification; and in the second place, I am not quite sure how local authority children's officers are going to cope with the rush of work which the Bill imposes. It will come principally during the summer, when we try to give our children's officers, who bear a case-load already heavy, a certain amount of time for holidays and when, therefore, the children's department is short-staffed. If we are now to have imposed upon us the duty of inspecting 31 the numerous homes to which foreign children are sent during the summer holidays, consideration will have to be given to how the necessary personnel is to be found. I am not quite certain whether the period of one month mentioned in the Bill might not be extended to two months. For the reasons which I have stated, I would ask for that point to be considered.
I would also draw attention to Clause 11 which requires a foster parent, on the death of a foster child, to notify the coroner or procurator fiscal. I know that at one time, when there was much baby fostering and much unsatisfactory fostering, when there was no adequate provision for the inspection of foster homes to which children were sent, and when there were few or no local authority officers to carry out that work, such a provision may have been most necessary and important: it may have helped to eliminate "baby farmers". But I would ask the noble and learned Viscount to consider, in conjunction with the Home Secretary and his advisers, whether it is strictly necessary to-day. Speaking as a foster parent, if I had had the great misfortune to lose my foster child, I think I should have felt this additional necessity somewhat keenly. I would ask for consideration of that point.
Finally, as I am a co-opted member of a children's committee, I feel that I should comment on the remarks that fell from the noble Lord, Lord Burden. There, I would ask that the House should preserve in this matter a sense of balance. I hope that all local authorities are well aware of the need to maintain a certain number, indeed, a considerable number, of empty places in their homes to provide for the emergency commitment of children. On the other hand, I am sure that the noble Lord will admit that it is most uneconomic and expensive for a local authority to maintain homes with a 50 per cent. occupancy or less. Yet unless a large number of free places are kept in local authority homes, there may be occasions on which overcrowding occurs.
One must remember that not infrequently a local authority is asked to take into its charge, quite quickly and suddenly, up to half a dozen children 32 from one family, the mother being suddenly taken ill and no other provision existing. If, as might well happen, and as does occasionally happen, several such children are brought into the care of the local authority, some degree of over-occupancy of homes is almost inevitable. In my experience, however, the over-occupancy is mitigated at the earliest possible moment, use being made of that very valuable class of citizen, the temporary foster parents, who are willing to receive foster children at very short notice. I hope that the noble Lord, Lord Burden, who was perfectly justified in all he said (I have no quarrel with him upon that subject), will admit that this is a matter on which we must preserve a sense of reasonable balance and on which we cannot provide for every possible contingency that might—and occasionally does—arise.
§ 4.21 p.m.
§ LORD LATHAM
My Lords, I believe that we in this country are entitled to feel a proper sense of pride and satisfaction at the progress which has been made over the past fifty years in the direction of promoting the protection and welfare of children. I think it can be fairly said that this policy has received the common consent of all informed persons of good will. This social policy is now paying some very handsome dividends—dividends which are continuous and growing; and I believe there is no limitation to such social dividends in respect of this corporate social activity. Thus it comes about. naturally, I feel, that this Bill has been warmly welcomed on all sides. The noble and learned Viscount the Lord Chancellor may rest assured that no one in this House would wish in any way to impede its speedy and smooth passage on to the Statute Book.
As always, the noble and learned Viscount was clear and concise in his explanation of the provisions of the Bill which he properly said he trusted would be approached with sympathy but also critically; and it may well be that on the Committee stage, as the noble and learned Lord, Lord Conesford, has suggested, there will be occasion to examine certain of its provisions and also to inquire whether some of the recommendations of the Hurst Committee which do not appear in the Bill are likely to be dealt with satisfactorily by rules 33 and regulations. There may he honest differences as to some provisions of the Bill and as regards the absence of some of the recommendations of the Hurst Committee; but I feel that we can be fairly satisfied that there will be no barren controversy but that there will be a desire on the part of all concerned to make the Bill as satisfactory in the interests of the children as it is possible so to do.
As the noble and learned Viscount has said, Part I of the Bill draws into one Act most, if not all, of the current legislation relating to foster children and their care and supervision. It also confers further powers of supervision and removes doubts as to the definition of a foster child which I believe arose from a court decision. Those doubts have generated doubts in the minds of those who have to work the provisions of the law as to the applicability of the regulations and the working code, both generally and. in particular as regards children in boarding schools.
Part I also confers additional powers and obligations on local authorities as well as obligations on persons proposing to maintain a foster child for the first time. In that respect the present period of seven days' notice is extended to fourteen days. Moreover, there is in the Bill an important provision which revises the grounds for the removal of a child from an unsuitable foster home. I gather from those concerned with the operation of this activity that the current provisions, although they are detailed and in some respects very far-reaching, are also in some respects virtually unworkable. It is hoped that the proposals in the Bill will greatly ease the workability of the regulations and provisions.
As the noble and learned Viscount clearly explained, Part II amends the Adoption Act, 1950, which is in itself a Consolidation Act. As several noble Lords have said, the provisions of the Bill are largely based on the Report of the Hurst Committee, and I should here like to join in the tribute which has been paid to that Committee. The Report, although voluminous, is an admirable document, full of comprehensive, penetrating and balanced judgments and wise recommendations. Parts I and II of the Bill deal with separate matters, but in one respect, at least, they overlap. Clause 3 of Part I and Clause 35 of Part II 34 overlap, and it is thought that, as a consequence, some confusion in application may arise. I should like to come back to that particular point a little later on.
All our legislation in connection with foster children or adopted children has insisted that the welfare of the child—his happiness and his future—must rank very high indeed in the priorities. I would myself go so far as to say, with the noble Lord, Lord Amulree, notwithstanding the view expressed by the noble and learned Viscount on the Woolsack, that the interests of the child must be paramount, without question. This does not mean that we should disregard the foster parents or the charity of feeling and of kindness which they exhibit when they take on the responsibility of rearing and caring for the child of another. Nor must we disregard the rights and interests of the natural parents: that is to say, those natural parents who accept and discharge their responsibilities. They, too, have their feelings and their parental attributes and rights.
That brings me to the provision of the Bill dealing with the dispensing with the consent of the parents, a matter which is dealt with in Clause 18 (3). This has always been a difficult matter, as I understand. There have been changes either of provision or of emphasis in successive Acts, and there have been two High Court decisions, all of which have left the position and the rights of parents in an imprecise, if not a confused, state; and certainly the question has not in any way been free from doubt. The Hurst Committee themselves were much exercised in the matter and devoted several paragraphs of their Report to consideration of this vexed, and indeed vexatious, question.
At the present time, to enable the court to dispense in adoption applications with the consent of the parents they must have failed in the past and be likely to continue to fail in the future to discharge their parental responsibilities to the child, without due cause. Parents may show willingness to discharge their responsibilities at least by sending the child tokens of affection from time to time, by remembering him on his birthday or at Christmas. At present, an adoption order can normally be made only if the parents consent, but their consent may be dispensed with in certain prescribed 35 circumstances, which, under the present law, derive largely from case decisions in the High Court. A parent's consent cannot be dispensed with if he or she wishes to continue in parental relationship to the child, notwithstanding that the parent may previously have failed completely to provide for him. This occasions great difficulty and injustice, which may very well in certain circumstances amount to cruelty.
In Clause 18 (3) there are, if I may say so with every respect to the noble and learned Viscount, three indeterminates, all of which it appears have to be determined before the magistrates' court may come to a decision whether the consent of the parent can be dispensed with. There are the words "persistently failed"; and then "without reasonable cause to discharge the obligations of a parent or guardian of the infant"; and there is an additional requirement expressed in the words "and that the failure is likely to continue if the order is not made". This has given rise to considerable anxiety in the minds of those who have had experience of administering the law, in that fractious and neglectful parents may, as they do now, wait until the last moment before they indicate whether they will grant their consent or not. This waiting, as it were until the eleventh hour and the fifty-ninth minute, is of importance by reason of the judgment given in one case, in which it was held that consent must be given at the time the adoption order is made and can be withdrawn up to the last moment before the order is made. That can occasion, as I have said, great difficulty and can seriously impair the proper workings of the provisions of the law and the regulations made thereunder.
It is correct that the clause carries out the recommendation of the Hurst Committee that the word "unreasonably" should not be used; but, as I have said, it brings into the clause the words "without reasonable cause". I am not a lawyer, but I should have thought it would be a little difficult to distinguish between doing something "unreasonable" and doing something "without reasonable cause"; but no doubt the noble and learned Viscount will assist me and other noble Lords to an understanding of the difference.
36 There is also considerable anxiety as to how the magistrates' courts are to construe the words "the failure is likely to continue". This clause seems to me to be so worded as to cast a heavy burden for decision on the court. We must bear in mind that the magistrates and the lay justices are not trained lawyers; they are capable, upright persons doing their duty as magistrates in the best possible way. And they will, I think (and in this I gather that quite a number of persons concerned in the administration of the law hold the same view) find that this clause provides almost a happy hunting ground for lawyers and others. The difficulties which will face the lay magistrates are perhaps likely to be increased by reason of the fact that there is conferred by Clause 21 a new right, or there will be a new right, of appeal from the decision of the magistrates' court as to dispensing with the consent of the parent.
There is anxiety that this clause, as presently drafted, may seriously prejudice the interests of the child, and in some cases the child's welfare may be sacrificed to a notional, unreal and unjustified refusal to consult by a thoroughly unworthy and neglectful parent. If the noble and learned Viscount the Lord Chancellor could look into the wording of this clause and find means of clarifying it. I am sure that it would be greatly appreciated by those who will have to operate the new law.
Clause 30 widens the powers of local authorities in the case of a child for whose adoption an application has been made, even if the child is not in the statutory care of a local authority. This will remove another difficulty and uncertainty. The Bill also provides recognition of local authorities as full adoption agencies and quite properly imposes upon them the responsibilities and requirements which at present are imposed upon adoption societies. As I have said, Clause 3 extends the period of notice to local authorities from seven to fourteen days in cases where persons undertake the care of a child for reward—that is, foster parents. Clause 35 seeks to do the same for children to be adopted. Here occurs the overlap which is causing perturbation in the minds of those who will operate the law.
Clause 35 seeks to make Part I applicable to children placed for adoption by 37 third parties or in respect of whom a notice of intention to adopt has been given to a local authority. This involves the framing of Clause 35 on the basis of a complex series of exceptions to Part I—namely, by changing the definitions of foster child in Part I, "for reward" and the without-reward basis of placing, and removing certain clauses, subsections or parts thereof which are not relevant to a child placed for adoption—for example, subsections (2), (3) and (6) of Clause 35. In the result—this is the view expressed by those who will be concerned to operate the law—Clause 35 and Part I together become something in the nature of a legal maze. Adoption case workers who are normally untrained in legal complexities will find it extremely difficult to interpret the provisions for themselves or explain them in a simple way to parents, adopters or third parties without legal guidance. There is a feeling that this Clause 35 will prove unworkable in the day-to-day field work because of its complexities. Something much simpler and more direct, even it be longer, is required.
One suggestion has been put forward of a rather drastic character—namely, that the Bill should be re-cast as two separate Bills, one for the supervision and protection of foster children placed for reward apart from their parents, and the other to amend the Adoption Act, 1950, including its separate provisions for supervision of children placed for adoption by third parties and children about whom notices of intention to adopt have been made. How far that suggestion can be acted upon is not for me to say, but I think that we should all agree that when it is a case of social legislation affecting intimate and intensely human and personal matters such as adoption, the law should be clear and simple and easily understandable to the laymen who have to administer it.
Moreover, third parties are sometimes difficult persons, who resent the intrusion of local authorities and authorised adoption societies and agencies and the imposition of their regulatory requirements. There is great apprehension that this clause may become a happy hunting ground for what are graphically described as "sea lawyers". I am sure that if the noble and learned Viscount the Lord Chancellor could look into the question of simplifying in one way or another the 38 provisions of Clause 35 in relation to Clause 3, those concerned with the administration of the law would be very grateful.
I come now to Clause 23, which deals with the adoption of children by people domiciled in this country. This restores the position, generally speaking, to what it was before the decision of Mr. Justice Harman in 1951, and accordingly there can be no objection in principle if proper and adequate safeguards are maintained. But Clause 24, as the noble and learned Viscount said, goes much further. It intends to permit people, whether British or not, who are domiciled in this country to get a provisional adoption order, which would give them the custody of a child whilst in this country and authority to take the child abroad for adoption elsewhere. It is true that it carries a safeguard that an applicant must satisfy all the normal adoption requirements apart from domicile, but this clause goes a long way. While it may in operation ease the situation which exists as regards certain groups of people—namely, where there are more children than persons willing to adopt them—nevertheless, it contains serious consequential dangers. For instance, one would like to inquire as to what regard will be paid to the general protective laws as to children in the countries into which they are to be taken: whether there is any restriction upon the age at which they can be set to work, and what are the provisions in regard to their education and other requirements which we now regard as being normal for the protection of children in this country.
After all, the standard of living and the level of civilisation in the countries to which the children may be taken is an important factor in the making for or making against the interests of the child. I can appreciate one of the points brought up in support of this proposal: that it would resolve difficulties which are being met in regard to coloured persons in this country who would wish to adopt a coloured child. We do not know, but we all hope that there will come a time—though we always welcome citizens of the United States, whether they be coloured or otherwise—when the reasons why there are so many here in this country as our guests may no longer prevail, and that, therefore, the 39 number will be much less. At any rate, if this proposal is to be part of the Bill, it seems that the strictest safeguards will have to be devised.
Then the question arises as to how far, whatever safeguards may be devised, we can effectually enforce them in a foreign country to which the child has been taken and a citizen of which country the child may well become. I know that persons concerned with the administration of the law are much exercised in their minds whether this may not endanger the future of the child; whether a child should be adopted and taken abroad, especially to a non-English-speaking country, where the way of life and the allegiances are in many cases fundamentally different from those of the parents and from those prevailing in this country.
I should like to conclude with a word or two in regard to the absence of any provision in the Bill implementing the recommendation of the Hurst Committee that an adopted child should, when he reaches the age of twenty-one, have the right to know of his natural parents and other circumstances with regard to himself. I am sorry to disagree with my noble friend Lord Silkin. I admit at once that this is a matter of balance and poise of considerations. We must seek to avoid being doctrinaire about it. There can be advantages in conferring this right upon an adopted child; there can also be disadvantages, both for the adopted child and for his natural parents, as well as for the adopting parents. I feel that one must be completely convinced, without peradventure of doubt or mistake, that the advantages likely to flow from conferring this right will outweigh the risks which it will inescapably involve. No doubt in some cases—maybe in many cases—it would be all right and to the advantage of the adopted child and the other parties; but in many other cases the consequences might well be almost calamitous for the child himself, for the adopters and for the natural parents, or for any one of them. The happiness and the peace of mind of these other persons may be seriously disturbed.
We must remember that years will have passed since the adoption of the child, and the circumstances of the 40 natural parents or parent may have changed completely. The mother may have married or re-married and may have had a family: all sorts of complications, embarrassments, hardships and sorrows might be occasioned. I think it is not putting it too high to say that in quite a number of cases there would be the danger that a happy home might well be shattered. In those circumstances, notwithstanding that the law in Scotland entitles the adopted child to have this information when he reaches the age of seventeen, I think the question must be decided by the dictates of reason and calm judgment rather than by an understandable feeling of sentiment and perhaps emotion. On balance, I think the Government are right in not acting on this recommendation of the Hurst Committee, and in the end I think the advantages will lie in not applying that recommendation.
There are other points, as I have already indicated, that I shall wish to make on the proper stages of the further consideration of the Bill. The noble and learned Viscount on the Woolsack indicated that some of the recommendations of the Hurst Committee will be dealt with in the rules and regulations which are to be promulgated. Suffice it to say this evening that I, with others, warmly welcome this Bill, and wish it a smooth passage to the Statute Book, amended as may be thought wise and proper.
§ 5.0 p.m.
§ THE LORD CHANCELLOR
My Lords, I do not think that anyone who has had the honour to put a Bill before your Lordships' House could have less reason than I to complain of the reception it received. I am most grateful to all noble Lords who have spoken, and I shall do my best to deal with the points that they have raised. If there are any others with which I am unable to deal, I hope that the opportunity will arise either of writing to the noble Lords concerned or of discussing the point in Committee.
If I may take one general point, I was most interested that the noble Lord, Lord Silkin, should revert to that passage in Professor Kennan's lectures. In doing so, he has brought a dangerous possible duty on himself, because, if your Lordships will allow me to say so. I 41 gave a lecture in Toronto University in January which turned on the subject of the highest common factor of international relations. I also was inspired by that passage in Professor Kennan's lectures in which he underlined the importance in foreign affairs of removing suspicions which Communist Powers might have of us. I ventured to develop in my lecture the point that the rule of law and the English Common Law, which we had applied not only to ourselves but to every other country, showed the emphasis which we placed on conduct and was some answer to any suspicion that might arise. Therefore, I was most interested that the noble Lord should have pursued the same line of thought with regard to the treatment of the under-privileged and those who constitute the casualties of life. I am most grateful for what he said, and I join with him in the thanks he expressed for all those who work with and for children. The danger is that, after what he said, I might feel justified in sending him a copy of my lectures, when they are published, and that he might feel he had to read them.
On the second point, which the noble Lord raised, the issue of a document of some sort indicating which parts of the Hurst Committee's Report we had put into operation and which parts not, and why, as he will appreciate these questions are easier to pose than to answer shortly, because in some cases it is necessary to explain why there is a slightly different slant. However, I am anxious to help, and I wonder whether the noble Lord would consider it helpful if I tried to get prepared an informal document—not a White Paper, which has all the pomposity of a State document—which I could circulate to all noble Lords who have spoken in this debate and to any other noble Lords who write to ask me for it. I do not say that it will do everything for which the noble Lord has asked, but it will be an attempt to help in that direction. I will certainly do that, and it will be as full as I can make it. I hope the noble Lord feels that that answers the spirit of his point.
§ LORD SILKIN
My Lords, may I say I am sure that it does, and I am grateful for the offer, which I at once accept. I am sure that every noble Lord who has spoken will do the same.
§ THE LORD CHANCELLOR
I am grateful to the noble Lord.
The next point which the noble Lord, Lord Silkin, raised was one which I stated would be a matter of controversy, as indeed it is; and that is the right of adopted persons to know, as a right, when they get to twenty-one, who their natural parents are. The point has been discussed in this debate. The noble Lord, Lord Latham, put the contrary view a few moments ago; therefore, I shall not develop it at any length. I have tried, in forming my own view, to follow the line which my noble friend Lord Conesford indicated; that is, to look at the problem from the three points of view—the view of the adopted child himself, the view of the natural parents and the view of the adopting parents.
As the noble Lord, Lord Silkin, said, it is the first that produces the most difficulty. I have read the letters, as I am sure he has, that have appeared from the adopted children on this point, and I have been struck, as he was, by the desire for a respect for their own human individuality which the writers of these letters expressed. But the noble Lord, Lord Silkin, was good enough to agree with me in saying that adoption has become part of our social action and gained a place in the community. In these circumstances, it is difficult to apply the same tests for human rights as one would do if adoption did not exist, because almost prospectively the person who is adopted must take society as it exists with adoption, and accept what makes adoption work best. I have tried to put the matter as reasonably as I can. because I was anxious to meet that point of view and it is a subject to which. as one who is mainly responsible for the European Convention on Human Rights. I have given great attention in the past.
From the point of view of the natural parents, I find the greatest difficulty in seeing the answer to these troubles, with which the noble Lord, Lord Latham, has just dealt. At the time of which he speaks the years may have passed, and an entirely different situation and entirely different relationships may obtain. With regard to the adopting parents, the balance of what has been put before me is that the clean break, in the absence of contesting loyalties, would not only make 43 their task easier but would prevent an undermining of a position which years of trust and affection have built up or, what is almost as bad, the fear that the position has been undermined. Therefore, when these views are coupled with the advice that we received from adoption societies, I felt that we had taken the right course. I have repeated these arguments briefly only in order to show Lord Silkin, whose view I value so much, that the matter received grave consideration before we formed this view.
My noble friend Lord Gorell, who told me that he has had to go to an important engagement, and the noble Lord, Lord Amulree, both dealt with the question of the representation of third parties. That matter can be dealt with by rule. I cannot give any undertaking at the moment as to whether it will be in the rules, because I should like to consider the point they have made and discuss it with my right honourable friend the Home Secretary. I should like them to know that the matter is not ruled out, and they will, of course, have an opportunity, should the decision of my right honourable friend not be palatable to them, of raising later the question of the rules.
The noble Lord, Lord Amulree, asked me about Clause 25, subsection (2), and I should like, if he will bear with me, just to explain what, in my view, it does. It makes clear what names the court is to direct the Registrar-General to enter in the Adopted Children Registers in compliance with Section 18 (1) of the principal Act, the Act of 1950, which relates to England, and Section 20 (1), which relates to Scotland. This is a point which I hope will remove Lord Amulree's doubts. The names to be entered are the name or names and surname stated in that behalf in the application in the adoption order, and no other names. If no name and surname are stated in the application, the original name or names of the infant and the surname of the applicant are to be entered. Those provisions remove the difficulties (which the noble Lord will find mentioned in paragraph 206 and 207 of the Hurst Committee's Report) which have arisen when courts have felt themselves obliged to record in the adoption order an infant's original name or names 44 or the surname of the applicant, even when that was not desired; and they remove also the Scottish difficulty which is mentioned in paragraph 209. So I think the provision is one in favour of, and not against, the view that the noble Lord, Lord Amulree was expressing. That is my view at the moment. However, I will consider it again, and if the noble Lord has any doubts perhaps he will raise the matter in Committee; or, if he sends me a note, I will deal with it when that clause comes before the Committee of the whole House.
§ LORD AMULREE
I am extremely grateful to the noble and learned Viscount for his explanation. I think it does set my mind at rest on that point.
§ THE LORD CHANCELLOR
I am grateful to the noble Lord.
The noble Lord, Lord Burden, as he is perfectly entitled to do on Second Reading, dealt not only with the Bill, to which he was most kind, but with certain matters which he was well aware were not in the Bill. I think he will agree that it is fair to answer him in this way. I will bring his points to the attention of my right honourable friend the Home Secretary, and I am sure he will consider them. They are most important ones, although they are not in this Bill. I should like to join with the noble Lord, Lord Burden, in the tribute he paid, despite his doubts, to the work of the children's officers. I think that was an admirable office to create. I had the great pleasure once of dining with Dame Myra Curtis, so I know personally not only what they do but the sort of people they are, and I willingly join with the noble Lord in his praise. I hope he will be content if I say that I will convey his points to my right honourable friend the Home Secretary.
My noble friend Lord Conesford raiesd an interesting point on the foreign adopter aspect, on the question whether there should also be a provision as to the likelihood of adoption. I certainly thought that would be a matter that the courts would consider, the objective as well as the subjective aspect; but I will look into it again, and here again I will let him know what view we form. I do give him a word of hope on consolidation.
45 The, noble Lord, Lord Latham, raised the question of whether there should not be two Bills. If the noble Lord had to fight for places in the legislative programme he would, I think, on balance be very pleased that he had got one Bill, even if it has two Parts. I was grateful to have the experience of the noble Lord, Lord Haden-Guest, and I was interested in the points raised by the noble Earl, Lord Iddesleigh, because the question of publicity, which was his first point, was very much in my mind. I raised it with those who were advising me, because I think it extremely important, if that part of Part I is to work, that we should try to ensure that the local authorities do their utmost to bring this matter to the attention of all foster parents. I am told that in the cases to which the original legislation was mainly directly, and in the cases where we want to ensure that there is no danger of "baby farming" in the old way, the difficulty will not arise so much, because the children are known to various officials of the local authority. I assure the noble Earl, however, that that point is in our minds.
With regard to the question he raised about foreign children who come for the holidays and the like, I drew attention, when was moving the Second Reading, to the provision for exemptions. I should have thought that if the person who was going to have a foreign child with him dropped a line to the local authority to explain what was going to happen, there would not be any difficulty in getting the exemptions. It is always troublesome when one introduces another regulation into our intensely complicated life. I think I have the story right; it is Wee Willie Winkle, one of Kipling's early stories, which shows how, even in the best regulated sending to somebody else of a child, the most awful things can occur; and the awful effect they may have on the child's mind.
§ THE LORD CHANCELLOR
I had a feeling I was wrong: I knew that I was back in the nursery rhyme field, but I had the wrong one. I am very grateful to the noble Earl. However, it shows the need which justifies the regulations here.
46 The noble Lord, Lord Latham, answered my request in full measure, and gave us a full and critical examination of the Bill, for which I am very grateful. I shall consider carefully all the points he raised. A number of them were legal points, and I am not going to go into them at great length to-clay, though I should very much like to—it is a great temptation to a lawyer. I did not think that the juxtaposition or the non-juxtaposition of Clauses 23 and 25 caused the difficulty, but I think Lord Latham feels that we could, with a further effort, find easier protection for the child to be adopted or waiting for adoption. I will of course, look into that point with pleasure. We have done our best at the moment and I will consider his criticisms on that point.
§ THE LORD CHANCELLOR
Yes. I think the noble Lord will agree that we had to find some protection for the child waiting for adoption. We have taken the protection from the first Part of the Bill, and the noble Lord finds that that has a complicated result. Of course I will look at it.
§ THE LORD CHANCELLOR
With regard to Clause 18 (3), I think the noble Lord was afraid it would mean that the undeserving parent would be able to throw a spanner in the works. Again, of course, I will look at the point, should like him to consider this thought—and perhaps he will be good enough to discuss it with those who are advising him on the legal position. The three tests are all tests of fact. The first one is that the parent or guardian has "persistently failed" to carry out his obligations. "Persistent" is a well-known word which has been construed many times; I do not think it should present any difficulty. But it is essentially a question of fact whether the person "persistently failed…to discharge the obligations of a parent." When the courts have considered that, and if they find as a matter of fact that he has persistently failed, then they have to consider the second point—whether he failed "without reasonable cause." Again, Lord Latham will take it from me that "reasonable cause" is a well-known legal 47 term; it postulates that there must be an existing cause, and that it is a cause which provides a reasonable excuse for failure.
I think that one answer to his difficulty is that if a person says, "I have failed; I have failed more than once; I have failed persistently. I had a reasonable cause; I had 'T.B.'; I was in great trouble with some other children, "or something like that; or my wife was very ill," that is the sort of thing that might be regarded as a reasonable excuse. It is a matter for the court; it is a question of fact, and it is a well-known phrase.
§ LORD LATHAM
I think that the lay magistrate will find it difficult to distinguish between without reasonable cause "and unreasonable."
§ THE LORD CHANCELLOR
I think the difference is this. An unreasonable persistent failure is, both as a matter of English and of thought, rather difficult to contemplate. But perhaps the noble Lord would take it in two steps: that you first of all, as you must do, find that there has been a persistent failure to discharge the duties of a parent, and then ask yourself: Was there any cause for his failure? He says what the cause was, and you then consider whether it constituted a reasonable excuse for the failure. Again, I will look at the point, but I do not myself—largely because I have been brought up with the term "reasonable cause," though I must not allow that to blind my eyes to other people's difficulties—quite see the difficulty.
§ LORD LATHAM
I am most grateful, but I almost feel that the noble and learned Viscount has in his own argument made my case: that a lay magistrate will have the greatest difficulty in interpreting this clause.
§ THE LORD CHANCELLOR
Well, I do not like to claim too much, but he might even read my speech—though perhaps that is too much to ask.
The other point is on the words "likely to continue". That again is a matter that 48 can be answered only by estimating the mental state of the parent. I am fortified by the phrase of a noble Lord in this House, sitting judicially, that the state of a man's mind is as much a question of fact as the state of his digestion. The answer to the noble Lord, Lord Latham, on this point is that magistrates must take a common-sense view and apply their own forecast of what the parent is likely to do in the future. I do not think that the parent with whom the noble Lord wanted to deal will get away from it.
My Lords, I am afraid that I have taken a long time, but your Lordships raised a number of points, and I have tried to answer them. There is just one point which I think is most important—it was raised first by the noble Lord, Lord Amulree, and was reinforced by the noble Lord, Lord Latham. They said that they would both be inclined to go further than I have gone, and would say that the welfare of the child should be paramount. May I just put the difficulty there? Nobody would deny that it should rank high—I said myself that it should rank very high—but I suggest that one cannot make it paramount, otherwise the result might be (I take an obvious example) that poor parents might lose a child against their wishes because a wealthy couple wanted to adopt it. That would be quite contrary to the spirit in which any of us to-day has approached this problem. I take that illustration only to show why I made the limitation which I ventured to put before your Lordships in my earlier speech.
I again apologise for taking up so much of your Lordships' time, but the matter has not only aroused interest but produced interesting speeches to which I felt, out of respect for them, I ought to reply.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.