CHILDREN BILL [H.L.] (Hansard, 12 May 1958)

HL Deb 12 May 1958 vol 209 cc195-232 195

§ 4.38 p.m.

§ Amendments reported (according to Order).

§ Clause 2:

§ Meaning of "foster child"

§ (3) A child is not a foster child within the meaning of this Part of this Act while he is in the care of any person— (a) in premises in which any parent, relative or guardian of his is for the time being residing;,

§ (6) For the purposes of this Part of this Act a person undertaking the care and maintenance of a child shall be deemed to do so for reward if he receives any payment or gift of money or money's worth or any promise of such a payment or gift in connection therewith irrespective of whether he makes a profit or intends to make a profit.

§ THE LORD CHANCELLOR
My Lords, this Amendment is little more than drafting. It seeks to insert the word "adult" after the word "parent" and makes clear that a child, who is in the care of any person in premises in which a relative of his is residing, is excluded 196 from the definition of "foster child" only if that relative is an adult. Without this Amendment it would be possible for a child to be outside the definition and thus exempt from supervision by virtue of the residence in the same premises of a relative who was also a child. I think that this is obviously a sensible Amendment. I beg to move.

§ Amendment moved— Page 2, line 3, after "parent" insert "adult".—(The Lord Chancellor.)

§ LORD SILKIN
My Lords, I agree that this is a sensible Amendment but I am a little doubtful about the position in which the word "adult" is being inserted. As I read it originally it seemed to me that it was "parent, adult relative or guardian.…"I now understand it to mean a relative who is an adult. I think that, to avoid any doubt, it would be wiser to say so. It would read "adult relative", but it could equally mean, unless you rely on the comma, which I did not, an adult relative living by himself. Perhaps the noble and learned Viscount can look at it. I do not want to press the point, because I agree with what is intended.

§ THE LORD CHANCELLOR
My Lords, I speak again only with the leave of the House. I had not appreciated the difficulty, but I will look at it and communicate with the noble Lord.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR moved to add to subsection (6) , but where two persons arrange for each to undertake the care and maintenance of a child normally cared for and maintained by the other the care and maintenance so undertaken shall be treated for the purposes of this subsection as not being a gift of money's worth. The noble and learned Viscount said: My Lords, this Amendment excludes au pair arrangements from the definition of undertaking "for reward". I am not going into this in detail. We discussed it thoroughly at the instance of my noble friend Lord Hawke and, as I understand it, there is no objection to the exclusion of au pair arrangements. Everyone agreed that there should be exchanges of children in various countries, and we have tried to meet my noble friend. I beg to move.

§ Amendment moved— Page 3, line 3, at end insert the said words.—(The Lord Chancellor.)

197

LORD HAWKE
My Lords, I am grateful to my noble and learned friend. Can he categorically assure me that, after the passage of this Bill with this Amendment, there will be no question of having to notify the local authority of au pair arrangements?

§ THE LORD CHANCELLOR
My Lords, I can give my noble friend as categorical an assurance as this imperfect life allows.

LORD HAWKE
My Lords, my noble friend has amply carried out the admirable sentiments he expressed on the Committee stage, when he said [OFFICIAL REPORT, Vol. 208 (No. 53), col. 638]: One really must make the Bill not only fit the facts of life, but remove from people irritations and annoyances which appear unreasonable. If one does not do that, there are two dangers: one, that people will be annoyed unnecessarily; and the other, that they will become unwitting breakers of the law. I believe that at the moment they are unwitting breakers of the law.

§ On Question, Amendment agreed to.

§ Clause 3:

§ Duty of persons maintaining foster children

to notify local authority

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

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

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

§ LORD LATHAM moved to leave out subsection (5). The noble Lord said: My Lords, this Amendment proposes to delete from the Bill the provision which in certain eases would grant foster parents exemption from the duty to give notice of the removal of foster children. It received a somewhat lengthy consideration on the Committee stage, a consideration which I think the importance of the matter justified. The Amendment was withdrawn on the undertaking that the noble and 198 learned Viscount on the Woolsack would consider the matter with a view to seeing whether the points made could be satisfactorily met. I am sure that we on this side, and indeed all your Lordships, are indebted to the Lord Chancellor for having so done, as is witnessed by the appearance on the Marshalled List of Amendments of an Amendment in his name. In point of fact, Amendments Nos. 3, 4 and 5 really deal with the same matter; and, with the permission of your Lordships, I think it may be convenient if I allow my remarks to range over those three Amendments.

§ Frankly, I consider that the Amendment standing in the name of the Lord Chancellor is not satisfactory, and does not meet the situation which will exist, even under the provisions of his Amendment, as regards the local authorities and the absence of information as to the removal of a foster child. I do not say that, as I am sure the noble and learned Viscount will accept, in any sense of being unappreciative of his efforts or from any desire to be pernickety or obtuse. The local authorities are strongly pressing, for reasons which I think are sound and which I will do my best to indicate, that subsection (5) of Clause 3 should be deleted and that the present position should be allowed to remain. The Lord Chancellor's Amendment would not, in point of fact, meet the difficulties which local authorities, as those largely responsible for the administration of the provisions of this Bill have to face.

§ The main defect in his Amendment is the wide gap which would exist by reason of the absence of notice. The Amendment, in short, would mean that foster parents would not need to give notice of removal if the child were no longer a foster child; that is to say, if a child goes home, or goes to hospital or goes to a relative. There are, the local authorities contend, many circumstances in which a local authority wants a reassurance that the child has in fact safely arrived at the new address to which it is said to have gone. It is the practice sometimes to check through officials, such as health visitors, school inquiry officers and the like, that the child has in fact arrived. This service, under the present arrangement, is a kind of alerted service as soon as notice of the child's removal is received. Under the Lord Chancellor's Amendment it 199 would not be possible to do this until the next time the official visitor happened to call at the foster house to see the child. She will then be told that he left x weeks ago; her inquiries about the missing child will, therefore, be x weeks late, and in some cases may be too late. Moreover, if the foster parents need not give any notice of removal of foster children, in certain circumstances it will be much more difficult for local authorities to keep a check on the numbers of foster children in any one house at any one time. Those are, generally, the objections to the Lord Chancellor's Amendment.

§ I should like to stress to your Lordships that what the Government are proposing to do in subsection (5) of Clause 3 is to lessen the existing requirements. It is not that this Amendment would alter the existing law; it is the case that the proposal in subsection (5) of Clause 3 would alter the law, because at the present time there is upon the foster parents an obligation to give notice of removal even though the removal is of a temporary order. For instance, Section 207 (3) of the Public Health Act, 1936, provides as follows: If a foster child dies, or is removed"— Or removes himself— from the care of the person who has undertaken his nursing and maintenance, that person shall, within twenty-four hours thereof, give to the welfare authority and to the person from whom the child was received notice in writing of the death or removal and, in a case of removal, the notice shall also state the name and address of the person"— if any— to whose care the child has been transferred. That is the present law. Under the proposals contained in this Bill that requirement will, in certain cases, go. I should like to point out this other difference, which is not unimportant: that whereas, as I have indicated, the notice under the present Public Health Act, 1936, must be given within twenty-four hours of the removal, under this Bill, Clause 3 (3), the notice can be not less than two weeks before the removal and not later than one week after. In any case the situation is likely, in the minds of the local authorities who are responsible, to be seriously altered, in a way which may prove to be detrimental and harmful to the foster children.

200

§ I understand that the present arrangements work satisfactorily. Notices are not frivolously demanded, and, like the local authorities, I therefore find it difficult to understand why it is proposed to make the change. Why weaken, in a Children Bill, if you please, the powers and tie the hands of local authorities in the discharge of their duty of looking after these unfortunate children? What is the mischief against which these proposals are put forward and which they purport to cure? Is it not proper that local authorities, who have the responsibility for the care and protection of children in this field, as well as in many other important fields, should have notice and be kept informed? I cannot for the life of me understand why this change in the law is persisted in. I think there must be some persons who have an over-weaning consideration for the foster parents to the detriment of the foster children.

§ The purpose of this Bill is to strengthen the means for care and protection of children—not to weaken it. as this clause does. After all, as I have said, the local authority carries a great responsibility for the welfare of children. Clause 1 of this very Bill reaffirms that duty and that responsibility; and yet in the same Bill it is proposed to impede and impair the local authority's ability to discharge those responsibilities. It cannot discharge its duties unless it knows without a break what happens to the foster child when it happens—at once, and not only when, adventitiously, by accident, the officer of the local authority on a visit finds out that the child has been removed to another place. Why should the local authorities have to search for cases of removal and never know definitely whether a foster child is where it is understood to be? Why, I ask, should this alteration be made in a Bill designed to strengthen the ability to provide care and protection for these children?

§ At the Committee stage, I referred to three sets of circumstances where failure to give notice could, and would, work to the detriment of the child. Let me give your Lordships two types of cases which are illustrative of what can happen, and indeed does happen at the present time, even though notice is required. It happens because certain foster parents have acted in breach of the law and in 201 defiance of the requirements to give notice. This is one of the typical cases which I use to illustrate the position. A week-old baby was privately placed by a mother with a foster mother for reward. The baby's condition at first was not satisfactory, and a course of medical treatment was provided and was continued, via the midwife and the health officer, in the foster home, as part of the child's supervision. Without warning or notice the baby was transferred elsewhere for adoption. The foster mother and the mother would not say where the baby had gone. The fact of the baby's removal would not have been known quickly but for the fortuitous circumstance that an official visited the foster home.

§ If Clause 3 (5) stands, the foster mother would be exempted from giving any notice at all; and whilst, of course, a number of cases happen now in breach of the law, as I have indicated, if there were no such requirement it is quite clear that the number of cases in which no notice would be given, or where things could happen to the detriment of the child within the period of notice as now proposed, would be greatly increased. If this requirement to give notice goes, then, in the view of the local authorities, the situation will be very serious. This is almost a gift of encouragement to those who would. for quite unworthy reasons—and there ore such—want to evade the requirements to give notice when children are removed from one place to another. I emphasise again, my Lords, that this is a children's Bill and not a foster parents' Bill, In this connection, the interests of the foster children should be paramount, and there is no real case for altering the present law, which requires that, even in cases of temporary removal, notice should be given to the local authority.

§ It will be seen that in addition to the Amendment of the Lord Chancellor there is another Amendment, Amendment No. 5, which stands in the name of my noble friend Lord Silkin and myself. That is designed, as it were, to minimise the disadvantages, serious as they may be, which would flow from the rejection of Amendment No. 3. There it is suggested that a local authority may exempt any person from the duty of giving notices under the clause in accordance with the regulations to be made in that behalf by a local authority, provided that the regulations are approved by the Secretary of 202 State for the Home Department or the Secretary of State for Scotland. On further reflection, I think it is only fair that I should say this. If each local authority were to make regulations governing the terms upon which they would require notice from foster parents, it might result in a confusion of different regulations as between local authorities, who from time to time have to exchange children and have to be in co-operative activity, the one with the other, in connection with foster children. It might be better, and might serve the interests of administrative tidiness, if the regulations were not made by each local authority but were made by the Secretary of State for the Home Department, and as regards Scotland the Secretary of State for Scotland, in consultation, and I hope in agreement, with the local authorities. It might be provided that no notice should be required in respect of temporary absences of a duration of, say, not longer than seven days. I personally think that seven days should be the maximum.

§ May I conclude by saying that the local authorities, the County Councils Association, the Association of Municipal Corporations, and the London County Council, all of whom are, or represent, welfare authorities charged with the care and protection of children, are strongly in support of the proposal in the first Amendment, namely, Amendment No. 3, that subsection (5) should be omitted from the Bill. I beg to move.

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

§ 5.5 p.m.

§ LORD SILKIN
My Lords, I beg to second the Amendment. I do not think, after the full explanation of the purpose of this Amendment, that there is much I can usefully add. But I should like to emphasise that this Bill is intended to implement the Hurst Committee's Report. That Committee was set up because it was thought necessary that children should have further protection. In this particular clause a form of protection, a very important form of protection, is being taken away—the protection that when a child is moved from a foster parent the authority should be informed of it at the earliest possible moment. That protection exists to-day, but Clause 3, subsection (5) takes it away. We fail 203 to understand why it should be so. What is the need for it? The local authorities themselves are unanimous—it is not often that we find them unanimous: the Association of Municipal Corporations, the County Councils Association and the London County Council—that this protection should remain and that subsection (5) of Clause 3 should be deleted.
The Amendment of the noble and learned Viscount the Lord Chancellor, which is intended to go some way, does not go far enough, because it provides that the local authorities may request information as to the whereabouts of the child and all the information they are at present by law entitled to have. But very often the local authority does not know that the child is moved. The whole purpose of the existing law is that the local authority should be kept informed of the movements of the foster child. That requirement is being taken away, and it is said that they may request information. But they might never find out that the child has been moved. My noble friend says that inspectors may fortuitously discover that the child has been moved. But, of course, they may not; the inspector may not get round for months. In the meantime, the mischief has been done; the authority does not know the whereabouts of the child. He may have been removed to a wholly undesirable place, and the whole purpose of the existing legislation, and of this legislation which is designed to improve on it, has been frustrated.
I do not know why the Government are so pig-headed about this matter: why they are so insistent that the existing protection should be taken away. I do hope—whether they like our form of wording, or prefer to do it in some other way—that they will have another try. Quite obviously, what we said on the Committee stage made some impression, because the Lord Chancellor undertook to look at the point again. He has looked at it again and he has produced another Amendment; but it does not really meet the point at all. I am sorry he is not here now, but I quite understand the reason, and I am sure the noble Lord, Lord Chesham, will make a very good deputy for him. But I think he ought to understand that his Amendment does not meet the point that was made, and which the Lord Chancellor undertook to look 204 into. I hope that the result of this discussion will be that further consideration will be given to the point so that the position of the foster child is at least not worsened under the Bill as compared with the position as it is to-day.

§ 5.10 p.m.

§ LORD CHESHAM
My Lords, with due respect to the noble Lord, Lord Latham, before I begin to try to give the noble Lord, Lord Silkin, some of the explanation for which he asked I will, if I may, reply more or less only to Amendments Nos. 3 and 4, and to No. 5 only in so far as it may be covered by any generality on the other, because so far as Amendment No. 5 is concerned another matter arises which I think does not arise on the first two. It is perfectly right, as was pointed out by the noble Lord, Lord Silkin, that this Amendment was moved during the Committee stage and was withdrawn, if I remember correctly, after my noble and learned friend had invited the noble Lord, Lord Latham, to make some specific proposal, if he could, that would provide for exemptions from the need to give notice in respect of temporary absences, for example, at school or in hospital, and would at the same time avoid the real difficulties which, as was pointed out in the discussion, could arise from the subsection as drafted. My noble and learned friend also undertook to consider the matter himself, which he did.

§ LORD LATHAM
May I interrupt the noble Lord? I have no recollection of having made the offer to which the noble Lord refers, that I would seek to devise a form of words. My memory may be at fault. The Lord Chancellor said that he would consider the matter.

§ LORD CHESHAM
I did not accuse the noble Lord of having offered to do that. I thought I was correct, but naturally I apologise if I am wrong. I said that I thought that my noble and learned friend the Lord Chancellor had invited the noble Lord to make a specific proposal. But, be that as it may, nothing has happened in the meantime, and my noble and learned friend has done his best to find a suitable form of words, as he said he would, and has put it down by way of the Amendment standing in his name on the Marshalled List. This Amendment has two objects. It tries as far as possible to meet the criticism which was made of the existing sub- 205 section (5)—the criticism which was expressed on a previous occasion and has been expressed most eloquently by the noble Lord, Lord Latham, to-day—basically, that it permits abuse by an unscrupulous person who could evade supervision.

§ LORD LATHAM
If I may say so, it permits of the absence of notice by the scrupulous, because there is no obligation to give the notice.

§ LORD CHESHAM
I am coming to that—I may be a little slow, for which I apologise. It must be remembered, too, that it retains the exemption from the necessity to give notice when a child leaves the foster home for short temporary periods. This is, I think, where the noble Lord, Lord Latham, and I part company a little. He sees in this, as he has explained to us, a considerable possibility of detriment to the child. He mentioned such words as "weakening", "impeding" and "impairing" the protection which, without any question of Party or argument, I am certain it is true to say we are all anxious to provide. The exemption in Clause 3 (5) is there as much as anything to avoid putting people in the position of committing offences inadvertently. If I am going to be accused of saying that this is a foster parents' charter and not a children's charter, I would only say that I shall in a moment show how the matter applies to the child. Foster parents certainly would commit offences inadvertently if every short absence, to school, to hospital, for a week-end with their real parents or something like that, called for notice of removal and notice of return.

§ LORD LATHAM
As it does at present.

§ LORD CHESHAM
If that is so, I do not think it can be an answer to say that the local authority will not prosecute except when there is a bad case. I do not think the Bill should put people in peril unnecessarily, and I certainly do not consider that they should be dependent on the benevolence of local authorities to escape prosecution. This is the real point. I do not see how a high proportion of contraventions without prosecution will do anything but bring the law into disrepute; and if the law is brought into disrepute on this subject it cannot be for the welfare and protection of the children.

206

§ LORD LATHAM
This is very important. May I ask the noble Lord whether the Department has any evidence at all that the law of the Public Health Act, 1936, has been brought into disrepute because it insisted on, and provides for, a notice within twenty-four hours of the removal of a foster child?

§ LORD CHESHAM
I am unable to tell the noble Lord exactly what evidence is available.

§ LORD LATHAM
Well, I can tell the noble Lord, The local authorities have no such information.

§ LORD CHESHAM
I do not know in what position the noble Lord stands to have available evidence that I have not got; therefore I must accept what he says for what it is worth. In short, I should have thought that the noble Lord's argument was something of an exaggeration. I should have thought that if there was not some easing of these constant notices for no particular reason, it would be to the detriment of the child and would lead to a mass of unnecessary work.

§ LORD SILKIN
I do not want to interrupt the noble Lord, because I appreciate that he is labouring under great difficulties. I am speaking to him, but really speaking at somebody else. Suppose the noble Lord is right that a lot of unnecessary notices for temporary absences and so on, are being given at the present time and that people are in danger of being prosecuted but are not being prosecuted because of the good sense of local authorities. Suppose that that is right—I would not dispute it. The answer to that is, not in all circumstances to exempt everybody from giving notice, whether the child is being removed temporarily or permanently. Surely the answer is to design an Amendment or a provision which would exempt people in regard to short absences but would not exempt them in regard to a permanent removal or for a long absence. This is not what is being done.

§ LORD CHESHAM
I thought I had been trying to say—perhaps I did not say it very well—that that was the object of my noble friend's Amendment. I should have thought that that is what would have been achieved by the Amendment which is down in the name of my noble and learned friend. I must admit that I am in some difficulty in this matter, and if 207 noble Lords opposite will permit me to say so with the greatest friendliness, one of those difficulties is that I have as yet hardly completed a single point.
I come now to the case cited by the noble Lord, Lord Latham, to show how badly it would work if the Amendment were adopted. The case which the noble Lord gave rather harrowingly, sounded terrible; but surely there the foster mother would have been required to notify the local authority under the provisions of the First Schedule to the Bill. A child which is placed in the care and possession of somebody not a parent by an agent becomes a protected child and therefore subject to the provisions which I have mentioned.
If, on the other hand, the noble Lord's argument is that, no matter what provision is made, somebody is going to break the law, then I do not quite know what he expects me to do. We are trying merely to make these arrangements work as well as we can. The new subsection still exempts a person from the duty to give notice of the child's removal if on removal the child ceases to be a foster child; but, as the noble Lord rather critically pointed out, it requires the person who was maintaining the child to tell the local authority, when they require it, where the child has gone. Having regard to the provisions of the clause I cannot see how the "months and months" to which the noble Lord, Lord Silkin, has referred can arise.

§ LORD SILKIN
Why not?

§ LORD CHESHAM
My Lords, if the noble Lord will look at the second part of the proposed Amendment I believe he will see that it covers the matter. In addition, and while one may not like added penalties introduced into the law, there is a quite severe penalty involved here which I should have thought would deter even the most unscrupulous of people. Dealing with the point of absence of more than six months to which the Amendment refers, I should explain that that gives rise to a new transaction; the matter has to be started all over again, and that requirement puts a positive limit on the period involved.

§ LORD LATHAM
My Lords, serious things can happen to a child in six months. Are we to regard that with complacency?

208

§ LORD CHESHAM
My Lords, I thought it had been generally agreed during the debate at the Committee stage that some provision was necessary for exemption for temporary absence, and I and my noble and learned friend thought this Amendment a reasonable compromise. The noble Lord, Lord Latham, does not agree with me, but I hope I have said enough to persuade your Lordships that that is so.

§ On Question, Amendment negatived.

§ LORD CHESHAM
My Lords, after what has been said, I believe it is not necessary for me to go to great length in discussing this Amendment. I beg to move.

§ Amendment moved—

§ Page 4 line 4, leave out subsection (5) and Insert: (5) Where a foster child ceases to be a foster child on his removal from the care of the person maintaining him, that person need not give a notice under subsection (4) of this section but shall at the request of the local authority give them the same particulars as would have been required to be stated in the notice; and a person who maintains or proposes to maintain a foster child need not give a notice under subsection (1) of this section if the child has within the last six months been maintained by him as a foster child but ceased to be a foster child while in his care or on removal from his care."—(Lord Chesham.)

§ On Question, Amendment agreed to.

§ 5.26 p.m.

§ LORD LATHAM moved to leave out subsection (6) and to insert: () A local authority may exempt any person from the duty of giving notices under this section in accordance with regulations to be made in that behalf by a local authority: Provided always that such regulations shall first be approved by the Secretary of State for the Home Department (or, as regards Scotland, the Secretary of State for Scotland). The noble Lord said: My Lords, I beg to move this Amendment. Subsection (6) purports to give a local authority power to exempt any person from the duty of giving notices. It will be recalled that at the Committee stage my noble friend Lord Silkin raised the question of whether it was altogether wise to give such carte blanche right and power of exemption to local authorities, most of whom no doubt would operate it properly and wisely, but some of whom, through lack of material or other circumstances, might do the contrary.

§ It was therefore sought in this Amendment to link the power of a local authority 209 to give exemption with the matter of the foster parents being themselves exempt from giving notice on removal of a foster child. The proposal in the Amendment is that the local authority shall be able to give exemption as regards these notices in accordance with regulations to be made in that behalf by any local authority—subject, of course, and as is stated, to the regulations being first approved by the respective Secretaries of State. That is the Amendment on the Paper. I should like to answer in advance, as I have already done, the point that it would be better for regulations to be made by the respective Secretaries of State. With that view I entirely agree; but the other part of the Amendment meets in some measure the important point raised by the first Amendment that I have mentioned—Amendment No. 3. It is to be hoped that Her Majesty's Government may see their way to accept this Amendment with the modification concerning by whom regulations shall be made.

§ Amendment moved— Page 4, line 13, leave out subsection (6) and insert the said new subsection.—(Lord Latham.)

§ LORD SILKIN
My Lords, I beg to second this Amendment. Subsection (6) gives the local authority power to exempt persons from giving notices. It is completely at large. They are under no obligation to apply any particular principle. It can apply to individuals, to groups of individuals and to any kind of circumstances or conditions. There is no restriction whatever on the discretion of the local authority to exempt people from giving notices. We believe that that is wrong and not in the best interests of the child. We have therefore sought to restrict the matter by requiring the local authority to make regulations as to the class of cases to which they will give exemption.
My noble friend who has moved this Amendment feels, as I do on reflection, that it should not be open to each local authority to make its own regulations, but that these regulations should be made by the Home Secretary. That is not stated in the Amendment—it is an afterthought; but I hope the noble Lord will not be embarrassed by my having second thoughts. If he would accept the principle, that would be good enough for our purposes.
210 At the same time it is rather an answer to the last speech that he made, because if these regulations were made they could be made to apply to temporary absences, and to all sorts of conditions which at the moment may be regarded as causing unnecessary annoyance to people who are foster parents. The requirements can be considered; and where it is thought to be unnecessary that notice should be given, that fact could be incorporated in the rules. We feel that, apart altogether from these frivolous cases, as I might call them, it is desirable that there should be regulations under which exemption can be given; and we also think that subsection (6) as it stands is much too wide and needs some restriction. It is for these reasons that I beg to support the Amendment.

§ LORD CHESHAM
My Lords, at the outset I should like to make it absolutely clear—I tried to make it clear before, but I should like to say it again—that neither of the noble Lords opposite who have spoken should think that, if I resist their Amendments, I in any way think that their ideas of protecting children are not completely sincere. But, so far as this Amendment is concerned, the main anxiety might almost be said to have been expressed in the points made on the previous two Amendments; and it might almost be said that the children's interests could be completely—or if not completely, very greatly—affected by the wholesale use of this provision in subsection (6) and that regulations would help.
However, if the Amendment were adopted, such regulations as proposed, while satisfying either of the Secretaries of State, might vary from authority to authority. There was also the suggestion that a local authority perhaps failing in its duty might seek to contract out of it, by means of subsection (6), to which the noble Lords object. But it must be remembered that Clause 1 of the present Bill imposes a duty on every local authority to ensure the wellbeing of foster children in their area. Clause 3 deals only with notices—that is to say, with part of the machinery that enables local authorities to carry out their duty. However they may decide to dispense with that machinery, they can in no way lawfully abdicate the duty imposed on them under Clause 1.
211 I think that a certain latitude must be permitted in this matter, because exemption surely must be either granted or withheld according to the particular merits of individual cases. There might well be a home which was regularly visited by officers of the local authority in which foster children were frequently arriving or leaving. If the local authority wanted notice in respect of each child, they could have it, but if, because of the frequent visits paid by their officer the local authority regarded separate notices as superfluous, it could grant an exemption. Regulations in this matter seem to me rather unnecessary and inappropriate. Regulations made by the local authority, even if approved by the Secretaries of State, would in no way add to the legal burden on the authority to do their duty, and therefore I think that the Amendment is unnecessary.

§ On Question, Amendment negatived.

§ Clause 5:

§ Appeal to juvenile court against requirement or prohibition imposed under section four

§ 5.—(1) Any person aggrieved by any requirement or prohibition imposed under section four of this Act may, within fourteen days from the date on which he is notified of the requirement or prohibition, appeal to a juvenile court, and the requirement or prohibition shall not have effect while such an appeal is pending.

§ LORD CHESHAM moved in subsection (1), to leave out all words after "and", and to insert instead: where the appeal is against such a requirement the requirement shall not have effect while the appeal is pending.

§ The noble Lord said: My Lords, this Amendment is a result of a partial acceptance by the Government of a suggestion by the noble Lord, Lord Latham, on the Committee stage, that a requirement or a prohibition imposed by a local authority under Clause 4 should take effect at once, even if the person concerned lodged an appeal. We accepted that suggestion in part, and this Amendment is the result. It leaves unchanged the provision that a requirement imposed under Clause 4 (2), for example to provide more accommodation or equipment, shall not have effect while an appeal against it is pending, but if the Amendment is made a prohibition against the keeping of a foster child, under subsection (3), it will have effect at once. I do not think we 212 could go very much further than that. I hope that the noble Lord will find this satisfactory and can accept this Amendment.

§ Amendment moved— Page 5, line 28, leave out from ("and") to end of line 30 and insert "where the appeal is against such a requirement the requirement shall not have effect while the appeal is pending."—(Lord Chesham.)

§ LORD LATHAM
My Lords, the Amendment is entirely satisfactory and, minimum though it may be, we are grateful for it.

§ On Question, Amendment agreed to.

§ Clause 18:

§ Consents to adoption

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

§ 5.39 p.m.

§ LORD LATHAM moved, in subsection (3), to leave out "and that the failure is likely to continue if the order is not made,". The noble Lord said: My Lords, in the unavoidable absence of my noble friend Lord Silkin, who has another public engagement which he must keep, I rise to move Amendment No. 9, which stands in the name of my noble friend and myself. As I said in the debate on the Committee stage, this clause and this Amendment raise in its stark reality the fundamental issue as to whose interests shall prevail, the interests of the child or the interests of a neglectful, unnatural and often inhuman parent. On Committee stage we sought to leave out the words and that the failure is likely to continue if the order is not made.

§ Let us examine the situation. Here we have a parent who has admittedly persistently failed, without any reasonable cause, to discharge the obligations of a parent or of a guardian, and, notwithstanding that, as the Bill now stands the court cannot dispense with the consent of that person unless it is also satisfied that the failure is likely to 213 continue if the order is not made. The noble and learned Viscount was good enough to say that he would give the matter consideration between Committee stage and this stage and I am obliged to him for having done so, as is clear from the Amendment on the Marshalled List in his name; but here again I am sorry to say that I do not think that the noble and learned Viscount's Amendment meets the requirement of the case. It still introduces the word "likely". It still casts upon the court the responsibility of appraising and assessing what is likely to happen in future from a miscreant who has failed to discharge the ordinary duties of a decent, honest, upright man or woman.

§ The present legal situation is that under two decisions of the High Court in 1952, when the court is considering the matter of dispensing with parental consent the main factor to be considered is not the welfare of the child but the parent's right as a parent to give or withhold consent. Frankly, we on this side say that that is wrong. A parent who has persistently neglected his own child for no reasonable cause is not a parent who possesses rights, is not a parent whose interests ought to be permitted to stand in the way of the care and protection of his own child. The future life and happiness of the child ought not to be in continuing jeopardy and prejudice merely to serve the interests of a notional parent who has stripped himself of all rights of parenthood by his complete neglect of the discharge of the duties of parenthood. It is under the influence of this rule of law, decided as recently as 1952, as I have said, that we have re-submitted this Amendment, I hope for the favourable consideration of the Government.

§ Local authorities are disturbed at the wording of this clause and they are no less disturbed when they consider the wording of the clause as it would be if the noble and learned Viscount's Amendment were incorporated in it. It still leaves the bias of consideration in favour of the parent and not in favour of the child. I know that the noble and learned Viscount, who is not present for reasons we appreciate and understand, does not accept the proposition that in all cases the welfare of a child should be paramount. I take that view. But clearly, whatever the circumstances may be when 214 the paramountcy of the child ought not to prevail to the exclusion of proper consideration for the rights of the parents, it cannot be a case where the child has been persistently neglected and where the parent has persistently failed for no reasonable cause to discharge his or her duty as a parent. I hope, as do the local authorities, all of them, that the Government will see their way to accept this Amendment.

§ With regard to the noble and learned Viscount's Amendment, I must say frankly, I assure the House without any disrespect to the learning and wisdom of the noble Viscount, that I think it is a distinction without a difference, whereas in the Amendment to the noble and learned Viscount's Amendment there is the added strength (if that is the proper phrase to use) that the court must go somewhat beyond the matter "appearing to be" and must be satisfied "having regard to the future welfare of the child," which words are to be introduced to-day in a manuscript Amendment which I gather is available. I shall be prepared to speak on that Amendment at a later stage. For the present, I beg to move.

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

§ LORD CHESHAM
My Lords, if I may, I will reply to Amendments Nos. 9 and 10 and we shall come to the manuscript Amendment to the Amendment printed on the Marshalled List afterwards. My noble and learned friend appreciated the force of what was put to him during the discussion on the Committee stage about the possible effect of the words "and that the failure is likely to continue if the order is not made" and he undertook to consider the matter again. The rather unexpectedly long gap between Committee stage and to-day has allowed time for him to do so fully, and the Amendment standing in his name is as far as we think it right to go.
The effect of the Amendment put down by the noble Lords, Lord Silkin and Lord Latham, would be to enable the court to dispense with the consent of a parent who had been neglectful in the past but who had reformed at the time of the hearing and was likely to discharge his or her responsibilities in the future, if given the opportunity. To us it seems wrong in a 215 matter as final as legal adoption to provide that a mother—even a neglectful mother—may be deprived of her child without any regard for what she might be likely to do in the future if the order were not granted.
The noble Lord, Lord Latham, made a considerable point of parents' having stripped themselves of the right to be considered, and of their rights to and over the child, and he referred to the child's welfare being in jeopardy. But when he says that the Amendment does not afford the required protection to the child, and is in favour of a parent who has no right to consideration, I think he has overlooked one thing. Section 5 (1) (b) of the principal Act requires the court, before making an adoption order, to be satisfied that the order, if made, will be for the welfare of the child. Therefore, I should have thought that the natural rights of even a neglectful parent should not be capable of being extinguished without regard to his probable future behaviour, which may be more important than his past deficiencies.
It is by no means impossible—the possibility can seldom be ruled out—that a neglectful parent who may have refused consent to an adoption order may have come, belatedly may be, to a sense of responsibility, perhaps because of the realisation that he is in danger of losing his child permanently, or perhaps by a change in his circumstances. In all or almost all cases the child will have been for some time in the care and possession of someone other than the parent at the time when the application for adoption is made, and the parent may during this period have so conducted himself as to establish the likelihood that he will discharge his obligations in the future. Bearing in mind the fact that the duty is clearly laid on the court to be satisfied that the order, if made, will be for the welfare of the child, I do not think the wording of the Amendment standing in the name of my noble and learned friend can be improved upon. Therefore, I hope the noble Lord, Lord Latham, will accept that, and will not press his Amendment.

§ On Question, Amendment negatived.

216

§ 5.56 p.m.

§ LORD CHESHAM
My Lords, in view of what I have just said, I think any further discussion on this Amendment is unnecessary. I beg to move.

§ Amendment moved— Page 10, line 43, leave out ("and that the failure is likely to continue if the order is not made") and insert ("then, unless it appears to the court likely that, if the order is not made, that person will discharge those obligations").—(Lord Chesham.)

§ LORD LATHAM moved, as an Amendment to the Amendment to leave out "it appears to the court likely" and insert: the court is satisfied having regard to the future welfare of the child. The noble Lord said: My Lords, in the absence of my noble friend Lord Silkin, I beg to move this Amendment to the Amendment. The noble Lord, Lord Chesham, entered a plea for the neglectful parent who had reformed, or who it was thought might have reformed, or (to use the word in the Lord Chancellor's Amendment, and the word originally in the Bill) who was "likely" to have reformed and repented, and to have come to the stool of repentance. The noble Lord admitted that that might he belated. I should certainly hesitate to rest the future of a child upon the belated penitence of a parent who had neglected his own child in the manner in which it is done, as the evidence in the possession of local authorities all too unhappily shows. But if there has been—as is possible—a miscarriage of justice, and if the court has given a wrong decision, then Clause 21 provides a right of appeal against the decision to make an adoption order without the consent of the parents. I should have thought that a parent who came within this subsection for persistent refusal to discharge his responsibilities was not entitled to any greater protection than that appeal provision.

§ The noble Lord referred to Section 5 of the principal Act. I have not that Act with me, and I do not suppose I have ever seen it. But, taking as correct what the noble Lord said, Section 5 of that Act requires that if an order is made it shall be for the welfare of the child. No one disputes that; but it has no relevance to the point we are discussing. An order cannot be made until either the parent consents, or the court decides that his or her consent can be dispensed with. So whatever Section 5 says about the welfare of the child when an adoption 217 order is made is irrelevant to the question we are now considering, as to the conditions in which the court should be able to make an adoption order, notwithstanding the refusal of a parent or parents to consent. It is with that aspect of the matter that we are concerned, and it is to that aspect of the matter that this Amendment to the Amendment is put down.

§ We see an appreciable difference between the effect on the court of the words, "unless it appears to the court likely" and that of the words, "unless the court is satisfied, having regard to the future welfare of the child." "To be satisfied", I think, is a stronger provision than merely "appears to the court likely." I cannot understand even our excellent draftsmen showing so much fondness in this connection for this word "likely." Nothing is more uncertain in the world of construction than the word "likely." What does it comprehend? What kind of appreciation must the court have? What kind of powers of prophecy and of determining the future are these lay magistrates who are administering the law expected to possess, in order that they may determine whether it is likely that the penitent will come to the stool of repentance and be a decent upright citizen as regards his own offspring? It seems to reduce the law to something—I almost said approaching a farce. So we submit, we hope for the favourable consideration of Her Majesty's Government, these words "the court is satisfied having regard to the future welfare of the child."

§ Late as the alteration to this Amendment to the Amendment came along, for reasons which can if necessary be explained, we attach great importance to those words being in this subsection. They will be a guide, I do not say a direction—and it would be wrong that they should be a direction—but they will be a guide to the magistrates in determining whether they are prepared to dispense with the consent of the parents. It will be a guide that the dominant—and I use the word "dominant" advisedly and with intent—motive ought to be and, as I submit to your Lordships, must be, the future welfare, the future life and the future happiness of the child. The child has done nothing to deserve this persistent neglect. Why should we visit upon the child the possible lamentable 218 results of accepting the view that the neglectful parent of yesterday is the reformed parent of to-morrow, or is "likely" to be the reformed parent of to-morrow?

§ It is for those reasons that we have put down this Amendment to the Amendment, and I hope most sincerely that the Government will be able to accept it. The local authorities are unanimous in their support, and I am quite sure that any person of good will and of heart who loves children would wish to see that, in such unworthy and discreditable circumstances as a parent disowning and neglecting his own child, when it came to the issue as between the interest of the child and the interest of the parent the interest of the child should, without peradventure or question, prevail. I beg to move.

§ Amendment to Amendment moved— Line leave out ("it appears to the court likely") and insert ("the court is satisfied having regard to the future welfare of the child").—(Lord Latham.)

§ 6.6 p.m.

§ LORD CONESFORD
My Lords, it is admittedly a very difficult question with which we are concerned in this clause, as appears from the debate on this occasion and, indeed, on previous occasions. There is the problem of the bad parent, but there is also the important legal effect of depriving a natural parent for ever of the parental relationship with her own child when she may, in fact, at the time the order is made, be intending to be a good parent. The problem is admittedly difficult. Some adverse criticism has been made about the draftsman. Let me say, using such legal knowledge as I possess, that I think I can construe without much difficulty the clause as it originally stood in the Bill. I think I can construe it, also, if my noble and learned friend's Amendment is adopted, as I think it should be. I think I can construe it if it is adopted as amended by the Amendment to the Amendment of the noble Lord, Lord Latham, as that Amendment stood on the Marshalled List. But I am wholly unable to construe it as it will stand if the noble Lord's Manuscript Amendment to the Amendment is adopted. That seems to me to introduce something that will completely muddle the court. The noble Lord said that the court must be satisfied, and satisfied on a question of fact. That question of 219 fact, on which, according to his own Amendment, they have to be satisfied, has nothing to do with the interests of the child. Simply introducing the words in his Manuscript Amendment at that point will, I think, make nonsense of the clause as it will then stand.
I think that the Amendment of my noble and learned friend the Lord Chancellor, turning the emphasis of what is at present in the Bill, is a good Amendment, and meets points rightly raised in various quarters of the House at this and earlier stages. I think one can exaggerate the difference that the Amendment of the noble Lord, Lord Latham, would make (I am speaking now of his Amendment as it stands on the Marshalled List), but I am certain it would be impossible, if we wish this thing to be clear, to adopt his Amendment as it will exist if the wording of his Manuscript Amendment is added to it. This is not an unfamiliar thing in Acts of Parliament: the expression "if it appears to the court to be probable" or "it appears to the court to be likely". The court is not unaccustomed to dealing with the sort of problem those words pose. I quite agree that it may be rather stronger to say "is satisfied". But the degree of satisfaction raises difficult problems; the court is not dealing with certainties.
I think the noble Lord, Lord Latham, whose detailed concern with this Bill I appreciate (he has drawn our attention to many valuable points in the course of our discussion), over-simplifies the problem when he suggests that this is a simple question of deciding between the interests of a parent and the interests of the child. It is not nearly as simple as that. As my noble and learned friend the Lord Chancellor said on an earlier occasion, when you are taking a step so tremendous as depriving a natural mother of future maternal relationship with her own child, it is not true that you should consider only the interests of the child; certainly you should consider the interests of the child, but not exclusively. I do not wish to weary the House. My own view is that the Amendment of my noble and learned friend the Lord Chancellor is a good one, that the Amendment to the Amendment as printed is, on the whole, not a good one, though it is a possible one, but that the Amendment to the 220 Amendment with the manuscript addition makes nonsense.

§ LORD CHESHAM
I am obliged to the noble Lord, Lord Conesford, for what he has said, much of which he has saved me from saying. I am bound to agree with a good deal of it, and I will add only one or two further remarks. As for the Manuscript Amendment to the Amendment, which would add the words "having regard to the future welfare of the child", I must say that I had not thought very much about whether they made legal sense or not. But one thing I would say: the words are in any case superfluous, because, as I pointed out a few moments ago, the court will always have the welfare of the child in mind. It needs no further injunction to do so; it already has the duty that I mentioned laid upon it by the principal Act.

§ LORD LATHAM
If I may say so, only with the consent of the parents. It has not an absolute right to make an adoption order, even though it be in the interests of the welfare of the child, except the parent consents; that is the crucial thing.

§ LORD CHESHAM
The noble Lord objects to the use of the word "likely" in my noble and learned friend's Amendment. He says that for the court to decide that a natural parent might be likely or not to discharge his obligations is impossible; the court would have to be prophetic, to see into the future, and it would be very difficult for it to make up its mind. He said, very movingly, that bad parents have no rights; the child comes first. I would be disposed to agree with him, but I do not believe that every parent who withholds his consent is the brutal, low type that his moving descriptions have been calling to our minds. I believe we can think of other reasons why people may fall into the classification of "not very good parents".

§ LORD LATHAM
My Lords, I really must interpose now. This subsection is concerned only with that type of person—not with the decent parents, but with the neglectful parents.

§ LORD CHESHAM
This subsection is concerned with the question of when a court may make an order without the parent's consent. I submit it is perfectly 221 reasonable that the court can consider whether a hitherto neglectful parent is likely to make a good parent in future. I think the court is entitled to give that its consideration, bearing in mind the fact that it must have regard to the future welfare of the child as a primary consideration under the law as it is now.
Finally, my noble and learned friend has already explained on a previous occasion that the court has to satisfy itself as to the likelihood of what will happen in fact and not what is the probable intention of what may be some feckless parent. With those words, I hope I have said enough to show that my noble and learned friend's Amendment is the one that should be accepted.

§ On Question, Amendment to the Amendment negatived.

§ On Question, Amendment agreed to.

§ Clause 19:

§ Other conditions of adoption

§ (5) In determining for the purposes of paragraph (b) of subsection (1) of section five of the principal Act whether an adoption order if made will be for the welfare of the infant, the court shall have regard (among other things) to the health of the applicant.

§ 6.18 p.m.

§ LORD LATHAM moved to add to subsection (5): who if the court so decides shall undergo a medical examination by a doctor appointed by the court and remunerated from public funds.

§ The noble Lord said: This Amendment relates to Clause 19. On the Committee stage I raised the question of requiring the medical examination of every applicant. The Amendment does not go as far as that; it goes only so far as those whom the court think should undergo a medical examination. The noble and learned Viscount the Lord Chancellor, in replying to the debate on the Committee stage on this proposal, said that the court would have a dossier, but, as the Hurst Committee said, the dossier, if it exists, would be based upon limited information, which the Hurst Committee went on to say was not satisfactory. Apart from the dossier, which, as I have said, is not exhaustive, the court must rely upon replies made no doubt to questions put to the applicant—and those replies will be based upon the memory of the applicant, and not all of us are very exact in our memories about our own illnesses 222 even—or by the appearance of the applicant in court when the application is being made.

§ What is in issue here? The thing that is in issue is whether the applicant, from the point of view of his health, is such as should be entrusted with the child of another—a young child, very often a child which may be in not too good physical condition itself from prior neglect by its own parent. Surely it is the case that no insurance company would insure a life for more than about £100 without having a medical examination of the assured. Is this child's life and future and happiness any less important than a modest insurance policy? Is it not also the case that in an ever-enlarging field of employment—not very high employment, not very skilled or technical employment—a medical examination is required, and often recurrent medical examinations are required?

§ The Hurst Committee recommended quite definitely, without any question, that the applicant should undergo a medical examination by a doctor appointed by the court, and that the cost of it should be defrayed out of public funds. This Amendment does not go quite so far as that; it limits the obligation to an applicant "who if the court so decides," and goes on to say that the doctor shall be appointed by the court and shall be remunerated from public funds. If an applicant sincerely wants to adopt a child I do not think that he would boggle or object to undergoing what is now a normal circumstance, a medical examination. Fifty years ago, when the health of this nation was much lower and different from what it is now, people hesitated to have a medical examination because they feared what might be disclosed by it. That is not the case in these days—medical examinations are common things, and I do not think that the applicant would decline. If he did decline for no more convincing reason than that he did not want to undergo a medical examination, it would, first, show that his desire to adopt a child was pretty slender, and secondly, put one on notice that there might be something wrong with his or her health, and that he or she was not a person to whom a child should be entrusted.

§ May I give just two illustrations of the difficulties which can arise in connection with the absence of any sufficient 223 knowledge of the health of applicants? This was the case of a third party, a gynæcologist who knew the prospective adoptive mother and knew that she could not have a family. The statutory seven days' notice was received, and the first visit was paid before the baby arrived. The child welfare officer, at once anxious concerning the woman's health, began inquiries and asked that the baby should not be handed over until all these were completed. The hospital was anxious for the baby to be discharged, and the child went to the prospective adopters not in fact before the statutory seven days. Two weeks after the baby was placed the adoptive mother was removed to hospital with an incurable disease from which she has since died. In another case, an application made to the council for a child for adoption was turned down on the advice of a chest clinic. The prospective adoptive mother, still under supervision for a known tuberculosis condition, was advised by the tuberculosis officer to wait for another year. Three months later she took a baby for adoption direct from a woman whom she had met in the park. Those are illustrations of the difficulties which a medical examination would avoid, and the number of cases and evidence otherwise submitted to the Hurst Committee convinced that Committee that it was essential that the applicant should undergo a medical examination. I therefore beg to move the Amendment standing in my name.

§ Amendment moved— Page 12, line 12, after ("applicant") insert the said words.—(Lord Latham.)

§ LORD SHEPHERD
My Lords, I should like to support the Amendment just moved by my noble friend Lord Latham. At the same time, I should like to express my admiration—I think the House would agree with me in this—of the tenacity with which Lord Latham has tried to improve this Bill on many occasions in spite of great disappointments. We have heard repeatedly that this Bill is for the protection of children. I should have thought that this Amendment would not have been necessary. I should have thought myself that it was essential that there should be provision in the Bill that foster parents would be healthy in all respects. I cannot see how any public authority or any court can 224 know that the parents are healthy unless there has been a medical examination. For that reason, I beg to support the Amendment.

§ LORD MILNER OF LEEDS
My Lords, I, too, should like to support this Amendment. It seems to me that it is purely permissive and is entirely in the hands of the court, and that therefore the Government should see their way to accept it. I should have thought that it was quite impossible for a court to have regard to, or to know, the position regarding the health of an applicant unless there were a medical examination. How can the court decide whether a man or woman has consumption, perhaps, in the family, or something of that sort, unless there is a medical examination? It seems to me an essential concomitant to this clause, and that in order to make the clause work it is essential that the court should have a permissive power, which it can use when it is in doubt, in regard to the medical examination of any applicant. Therefore I hope the House will support my noble friend in his Amendment.

§ LORD CONESFORD
My Lords, I think the position is that with the words as they stand, without the Amendment, the court has to have regard to the health of the applicant, and therefore might require evidence before it made an order. Naturally, I wish to hear what the Minister will say on this, but I think the House would like to avoid the implication that the evidence of a man's own doctor should never be considered sufficient. At present, I think, the court often concerns itself a good deal with the health of the applicant; in fact, I believe my noble and learned friend the Lord Chancellor assured us on a previous occasion that that was the case; and while I do not profess to have formed a concluded view on the merits of this Amendment, I do not think the House would wish by implication to suggest that there was necessarily anything insufficient about the evidence of the man's own doctor.

§ LORD CHESHAM
My Lords. I think I find myself in agreement with the noble Lord. Lord Shepherd, when he said that he thought this Amendment was unnecessary. I, too, think it is.

§ LORD SHEPHERD
Excuse me, but I said it was unnecessary only because I 225 thought it should have been included in the Bill in any case.

§ LORD CHESHAM
My Lords, I was going on to say "for a different reason", but I still agree with the noble Lord that, so far as that goes, it is unnecessary. As Lord Latham explained, the Amendment would empower courts at their discretion to require an applicant to undergo a medical examination by a doctor appointed by the court. That is exactly the point. But the arguments of the noble Lord in favour of this Amendment can hardly be said to have supported it. Had his Amendment sought to provide that all applicants should be required to undergo a medical examination, I could have understood it; but, the noble Lord, having put forward those arguments, then says by his Amendment that this is to be at the discretion of the court—which would appear to defeat the whole object of his argument. In any case, it is already within the power of the court under the existing law to ask for a medical report in respect of an applicant and to refuse the application if the applicant does not provide the report.
Clause 19 (5) of the Bill draws the attention of the court to the importance of the health of applicants for adoption orders and requires the court to consider this point on each occasion. That part of the Amendment which refers to medical examinations at a court's discretion would therefore seem unnecessary. That part, however, which provides for payment from public funds of the cost of a medical examination where that is required raises a point of substance. Under the existing arrangements an applicant for an adoption order must be prepared to meet some expense. Thus the law already provides, in the Rules of Court relating to adoption, that the court may order an applicant to pay first, out of pocket expenses incurred by the guardian ad litein, and also expenses incurred in attending court by any respondent or whatever part of those expenses the court thinks proper. The registered adoption societies are required by the Rules to consider the adopter's state of health before delivering a child into his care, and some societies discharge their obligation by requiring an applicant to undergo a special medical examination at his own expense. In many cases courts may well be satisfied if the report 226 of this examination is put before them; and in that event there would be no additional expenditure. I would only add this: if it had been found that the expenses which already fall on applicants had deterred prospective adopters from applying for adoption orders, Her Majesty's Government would certainly wish to consider the situation again but I have no evidence that they have been so deterred, and, therefore, there do not seem sufficient grounds for singling out the particular item with which the Amendment deals for payment from public funds.

§ On Question, Amendment negatived.

§ 6.34 p.m.

§ LORD LATHAM moved, after Clause 21, to insert the following new clause:

§ Parties to applications for adoption orders.

§ ("22. Rules made under section eight of the principal Act shall provide that on an application for an adoption order any person not being a parent or guardian of the child who takes part in the arrangements for the adoption shall be a respondent to the application.")

§ The noble Lord said: My Lords, the purpose of this Amendment is to carry out another of the recommendations of the Hurst Committee. The continuing bane of local authorities, adoption societies and other bona fide bodies concerning themselves with foster children or adopted children is the third parties and the direct placings. Local authorities and the societies to which I have referred are very disturbed about the activities of these third parties.

§ Nor is this a new trouble or anxiety, for the Curtis Committee, which was presided over by Dame Myra Curtis, reported, in paragraph 455 of their Report: There is … nothing to prevent 'third parties' who are in a special position in relation to infant children—e.g., a matron of a nursing home—making a business of arranging adoptions without proper inquiry as to the home to which the child is sent and without any security that an adoption order will be applied for. There may be nominally no fee for the service but there appears sometimes to be a concealed fee—e.g., in the form of work by the mother of the child given before and after the birth or as a part of the overall payment made for the confinement. There may even be an illegal payment by the persons receiving the child which would be very difficult to discover.

§ The Committee went on: We think that private persons should be prohibited from arranging adoptions in the sense of inviting applications and handing over the children direct to the adopters. 227 As I have said, the Hurst Committee, which had some additional impressive evidence before it, did not go so far as the recommendation of the Curtis Committee. However, they did recommend that the third parties should be made respondents to the application.

§ The measure of the problem dealt with in the Report of the Curtis Committee and facing local authorities and others acting bona fide and interested in this matter will be understood when I say that, according to the Hurst Committee, no less than one-third of the adoption orders made annually (that was in the year 1954) were in respect of children placed outside their own families, either directly or by third parties. It was because of the evidence submitted to the Hurst Committee that that Committee came to the conclusion and recommended that third parties should be made respondents to applications for adoption. The Committee went further and said that third parties will then be served with notice of the application, and be interviewed by the guardian ad litem; they may also be required to attend the hearing. In order to assist the guardian ad litem in tracing any persons who may have acted as a third party, we recommend that the form of consent should include a statement by the parent of how he or she heard of the adopters". I am not suggesting in my Amendment that we should go as far as that, although I believe it has much to commend it; but I am asking your Lordships to approve the proposition that third parties should be made respondents.

§ May I give your Lordships just two illustrations of the kind of case which local authorities meet from time to time? There was the case of a Mr. and Mrs. S., who received a child by means of a third party. The material conditions were found to be adequate, and the child was placed. It was subsequently discovered that the male applicant had been in prison, and the woman under police observation for entertaining foreign troops during her husband's absence in the Services. An adoption order was refused by the court, but at the mother's request the child remained in the care of the applicants. The other case is of Mr. and Mrs. M., aged over 50, and in poor health, who received a child through a third party, and who were quite unaware of the legal obligations to notify the local authority. The applicants lived in two 228 filthy, dark, airless basement rooms, with a male lodger. After much discussion the applicants allowed the child to be received into the care of the local authority, under the Children Act. He had been with the applicants some months and it was a great shock to him to have to be separated. I think, from the evidence tendered to the Curtis Committee and the recommendations which that Committee made, and the evidence tendered to the Hurst Committee and the definite recommendation which the Hurst Committee made, that I may hope your Lordships will accept the Amendment so that the parties may henceforth be respondent to applications for an adoption order. I beg to move.

§ Amendment moved— After Clause 21 insert the said new clause.—(Lord Latham.)

§ LORD CHESHAM
My Lords, I am sorry to keep appearing resistant to the noble Lord's eloquence.

§ LORD LATHAM
I am getting used to it.

§ LORD CHESHAM
So am I, my Lords. But on this occasion his Amendment proposes the making of Rules; and, while a provision in an empowering enactment requiring the making of Rules on a specified point is not without precedent, it is somewhat unusual. In this case, moreover, it seems a little unnecessary, apart from the merits, because the rule-making power is already wide enough to enable my noble and learned friend the Lord Chancellor to make Rules in the sense proposed.

§ LORD LATHAM
My Lords, if the noble Lord will give an assurance that the Government will make a Rule to this effect I will withdraw the Amendment straight away.

§ LORD CHESHAM
My Lords, perhaps it would be for noble Lords' convenience if I finished what I was going to say.

§ LORD LATHAM
I do not want to let the offer go.

§ LORD CHESHAM
My Lords, it is not going. It is true to say that the Amendment would implement a recommendation of the Hurst Committee, but it is a recommendation that we think goes rather too far. The Committee recommended that all third parties should be 229 made respondents so that they would be served with notice of the application and be interviewed by the guardian ad litem. If that is what they want, that agents are seen by the guardian ad litem, that can be made a direct provision without any necessity for joining them as respondents; and that is what it is proposed my noble and learned friend the Lord Chancellor should provide by Rules. The Rules already provide that anyone who has a legitimate interest in the outcome of an application can be made a respondent at the court's discretion. If the court requires the presence of any agent who is not a respondent, it can insist on his being called as a witness.
It would appear that the noble Lord is putting forward the views of the Curtis Committee on discouraging agents from arranging adoptions by means of putting them to inconvenience. If that is the intention, I am afraid that I have to tell him that a provision with that object would he a misuse of the courts.

§ LORD LATHAM
My Lords, of course, I cannot say what was the intention of the Curtis Committee, but it certainly was not my intention to use this evidence in the way suggested by the noble Lord.

§ LORD CHESHAM
I am sorry if I have misunderstood the noble Lord. I understood him to say that he wanted it made difficult for agents to arrange adoptions, and that this method would discourage them from doing so. All I can say (I will not answer the point about whether agents are or are not desirable) is that this provision would be a misuse of the courts for that purpose, and therefore I hope he will not press his Amendment.

§ LORD LATHAM
So there is no offer?

§ 6.44 p.m.

§ THE LORD CHANCELLOR
My Lords, I would have replied, but I did not like replying when I had not heard the Mover's speech. However, I have had an opportunity to pick it up. My noble friend Lord Chesham made clear the position on the two real points of the Amendment. First, there is the endeavour to ensure that agents are seen by the guardian ad litem. That can be made a direct provision without any need for joining them as respondents, and it is proposed that I should so provide by Rules. That is what we intend to do. On 230 the other point, the Rules already provide that anyone who has a legitimate interest can be made respondent at the court's discretion; so that if the court requires the attendance of any agent who is not a respondent it can so insist. I do not think the noble Lord need be too despondent. We are meeting his points, but not in exactly the same way.

§ LORD LATHAM
And, if I may say so to the noble and learned Viscount, not to the same extent. I thought there was a considerable margin between the point the noble and learned Viscount has been good enough to indicate and the recommendation of the Hurst Committee that all bodies should be respondent.

§ LORD MILNER OF LEEDS
My Lords, may I ask how the court should ascertain, on an application for an adoption order, what person or persons, not being parent or guardian, take part in the arrangement? How do they ascertain that—by making an inquiry from the person or people concerned? It may be that the identity of many people who have an indirect arrangement of some kind might well not be ascertained unless there is some procedure for doing that.

§ THE LORD CHANCELLOR
My Lords, if the House will allow me to say so, the idea is that the court makes full inquiries and that the background generally becomes apparent. But if that were not so, then the court would inquire into this point, because, as I have said, and as my noble friend Lord Chesham said, it is possible for the court to act. I hope that the noble Lord, Lord Latham, will not press his Amendment, in view of what has been said. I have tried very hard to treat this Bill as being, as I said, something in which we are trying to get at the best results; and I think that the noble Lord, Lord Latham, will agree—I do not want to throw bouquets at myself—that I have tried to help him all along by explaining exactly what we had in mind. In these circumstances, perhaps he might be content with what we are giving.

§ LORD LATHAM
My Lords, for those reasons and also because for me not to withdraw the Amendment would, as it were, change the tune I have had to follow this afternoon, I agree to withdraw it.

§ Amendment, by leave, withdrawn.

231

§ Clause 23 [Adoption by persons domiciled but not ordinarily resident in Great Britain]:

§ THE LORD CHANCELLOR
My Lords, this Amendment removes an inconsistency in the provisions about joint applicants who are ordinarily resident abroad and those concerning a sole applicant who is resident abroad. The subsection as drafted provides that joint applicants must live together with the infant for a specified period, either in England or in Scotland, but if they cross the Border, a fresh start must be made in calculating the qualifying period. No such restriction applies to a sole applicant, nor do I think that there are sufficient grounds for imposing the restriction on the joint applicants. It is simply a matter of straightening out, and I hope your Lordships will agree to it. I beg to move.

§ Amendment moved— Page 14, line 23, leave out "England or Scotland, as the case may be" and insert "Great Britain".—(The Lord Chancellor.)

§ LORD LATHAM
My Lords, may I ask the noble and learned Viscount whether any significance is to be attached to the summary departure of the Minister of State for Scotland immediately the noble and learned Viscount commenced to move this Amendment?

§ THE LORD CHANCELLOR
My Lords, after the noble Lord's long and wide experience of political life, I invite him to draw his own conclusions.

§ On Question, Amendment agreed to.

§ Clause 24 [Provisional adoption by persons domiciled outside Great Britain]:

§ 6.52 p.m.

§ THE LORD CHANCELLOR moved, after subsection (4) to insert: (5) In relation to a provisional adoption order subsection (6) of section two of the principal Act shall have effect as if for the word 'three' both where it occurs in paragraph (a) and where it occurs in paragraph (b), there were substituted the word 'six'.

§ The noble and learned Viscount said: My Lords, this Amendment provides that an applicant for a provisional adoption order (who will be a person not domiciled in England or Scotland), must have had the infant continuously in his care and possession for at least six consecutive months immediately preceding the date of the order and must have given the local authority notice of his intention to apply for an order at least six months 232 before the order is granted. The period in respect of applications for ordinary adoption orders is three months in each case. This change was suggested by the noble Lord, Lord Silkin, on the Committee stage, and your Lordships may remember that I said that I felt it was in accord with the general feeling of the House and promised to take action on it, and I have done so. I beg to move.

§ Amendment moved— Page 15, line 12, at end insert the said subsection.—(The Lord Chancellor.)

§ LORD LATHAM
My Lords, I should like to express the gratitude of my noble friend Lord Silkin and myself for the way in which the noble and learned Viscount has met us with regard to this matter of the extension of the period to six months. I am sure I have his assurance that in the rules which will have to be made appropriate insistence will be laid upon the court's having before it information about the conditions of life in the country to which the child is to be taken—such as labour laws, employment of children laws, educational facilities, adoption procedure and generally everything about the care and protection of the child once it gets to the country of its destination. In some respects it is a risky thing for a child to be taken as an adopted child to some countries, at least, and I am sure that the Secretary of State for the Home Department will see that the regulations are as tight and effective as can well be the case.

§ THE LORD CHANCELLOR
My Lords, again with your Lordships' permission, I have sensed the feeling of the House and I shall convey to my right honourable friend the desirability that the fullest possible information be obtained.

§ On Question, Amendment agreed to.

§ First Schedule [Provisions as to children awaiting adoption or placed with strangers]:

§ THE LORD CHANCELLOR
My Lords, your Lordships will be relieved to know that all I need say is that this Amendment is consequential. I beg to move.

§ Amendment moved— Page 26, line 5, leave out from ("court") to end of line 6.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ House adjourned at five minutes before seven o'clock.