§ 11.14 a.m.
§ LORD BLYTONMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Blyton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD CHAMPION in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Restrictions on making of adoption orders]:
§ LORD BLYTONmoved, in subsection (4), after the first "subsection", to insert "consents may be proved in the prescribed manner and". The noble Lord said: The purpose of this Amendment is to provide that where an infant who is not a United Kingdom national is adopted under the Bill the consents to the adoption required under the law of the country of which the infant is a national may be Droved in the prescribed manner. Clause 2(4) of the Bill provides that:
Sections 4 to 6 of the Act of 1958 (which relate to consents) shall not apply to an adoption order proposed to he made in respect of an infant who is not a United Kingdom national".Clause 3(3)(a) of the Bill provides that:An adoption order shall not be made in respect of an infant who is not a United Kingdom national—These provisions implement Article 5 of The Hague Convention which provides that "the national law of the child relating to consents" must be applied. This refers to the substantive law as to consents and not to the manner in which the giving of consent can he proved in the High Court or the Court of Session. The manner in which the giving of consent can be proved is a matter for our law. Section 6 of the 1958 Act deals with evidence of the consent of a parent or guardian whose consent is required.
- (a) except in accordance with the provisions, if any, relating to consents and consultations of the internal law relating to adoption of the country of which the infant is a national;"
586 As Clause 2(4) and Clause 3(3)(a) are at present drafted they may have the effect of preventing the application of Section 6 and prevent rules being made under Clause 12 of the Bill to achieve the same result as Section 6. There might then be argument as to how consent could be proved in our courts. The Amendment resolves the difficulty by authorising the making of rules under Clause 12 as to how consents may be proved. It is intended to make rules on the lines of Section 6—that is to say, a document giving consent shall be admissible if it is duly attested. In some cases a person may give oral evidence of consent. I beg to move.
§
Amendment moved—
Page 3, line 27, after ("subsection") insert ("consents may be proved in the prescribed manner and").—(Lord Blyton.)
§ LORD LEATHERLANDAll I want to do is to add my support to this humanitarian measure which is going to do away with some international and racial obstacles. I should like to repeat what I said on Second Reading, and as we have gathered from the speech of my noble friend, that this is a most complicated measure. I hope that when, ultimately, it reaches the Statute Books all those children's officers and voluntary societies who do such good work in the realm of adoption will be provided with a simplified version of the Act and its provisions.
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to
§ Clauses 4 to 7 agreed to.
§ Clause 8 [Registration]:
§
Lord Blyton moved, in subsection (4), after paragraph (b), to insert:
(bb) in subsection (2), for the words ' column 6 were headed ' there stall be substituted the words ' item 6 were entitled';".
§ The noble Lord said: I beg to move Amendment No. 2 on the Order Paper. Clause 8(5) of the Bill applies the previous subsections of Clause 8 to Scotland. This Amendment takes account of the fact that a different form of entry in the Adopted Children Register is prescribed for use in Scotland from that prescribed for use in England and Wales. For the form of entry set out in Schedule 2 587 to the Adoption Act 1958 there has been substituted a new form of entry set out in the Schedule to the Registration of Births, Deaths and Marriages (Adopted Children Register) (Scotland) Regulations 1965. This form is not divided into columns in the same way as the form prescribed for use in England in Schedule 1 of the 1958 Act. It is therefore not appropriate for the words "column 6 were headed" to refer to the Scottish form. This Amendment provides that instead of those words, the words, "item 6 were entitled" are substituted in the application of the subsection in Scotland. I beg to move.
§
Amendment moved—
Page 7, line 44, after ("Act") insert the said new paragraph—(Lord Blyton.)
§ On Question, Amendment agreed to.
§ Clause 8, as amended, agreed to.
§ Clause 9 [Nationality]:
§ LORD BLYTONmoved, in subsection (2), after the first "Act", to insert "and subsection (2A) of this section". The noble Lord said: I beg to move Amendment No. 3 standing in my name; and perhaps with it we might discuss Amendment No. 4 as one is consequential upon the other. Clause 9(2) deals with the problem of dual nationality and gives our courts the necessary guidance as to the rules to be applied in deciding which of two or more nationalities the person should be treated as having for the purpose of proceedings under the Bill. Although these rules serve a useful purpose in most cases, they may, in some cases where our court is concerned with an adoption made abroad, lead to undesirable consequences. For example, a foreign court may treat a person who possesses the nationality of country X and country Y as being a national of country X whereas our court might have to treat that person as a national of country Y by reason of the provisions in Clause 9(2). It is not thought that it would be right for our court to be prevented from treating an adoption as validly made on the ground only that the foreign court, for example, treated as one of its nationals a person who was a United Kingdom national and who would have to be treated as such in this country by virtue of Clause 9(2).
588 In general the problem will not arise because by the provisions of Clause 7(3) our courts will be bound by any finding of fact made by the court abroad for the purpose of determining whether it had jurisdiction. If, however, a question of nationality is decided by a foreign court without expressly making a finding of fact, our court would be free to come to a different decision, subject to the provisions of Clause 9(2). The question might arise in proceedings to annul a foreign adoption. Our court might think it right to support the foreign adoption because it agreed with the view as to nationality taken by the foreign court, but be unable to give effect to its views by reason of Clause 9(2).
The second Amendment creates a new subsection (3) of Clause 9 and provides that where proceedings are brought under Clause 6 the court may disregard the provisions of Clause 9(2) if it considers it appropriate to do so for the purposes of the proceedings in question. The purpose of the Amendment is to give a court a discretion so that it could uphold the validity of an adoption and refuse to annul it if it appeared appropriate to the court to do so. This Amendment does not affect Clause 7(3) of the Bill under which a court here is bound by any finding of fact made by the court abroad for the purpose of determining whether it had jurisdiction; the Amendment expressly provides for this. The Amendment to Clause 9(2) is consequential upon the new subsection. It provides that Clause 9(2) must be read subject to the new subsection (3). I beg to move.
§
Amendment moved—
Page 8, line 14, after ("Act") insert ("and subsection (2A) of this section").—(Lord Blyton.)
§ LORD LEATHERLANDAll I want to say about this Amendment is that I hope my noble friend Lord Stonham, speaking for the Home Office, will be able to assure us that it will not lead us into any international complications. We all know that there are young ladies in the theatrical profession who wander from country to country, and who marry in one country and get divorced in another. Sometimes that procedure leads to complications so that the young lady does not know in law, even if she does in fact, whether or not she is married at a certain time to a certain person. 589 As a magistrate I preside over a court where sometimes we have to deal with adoptions. Here we are diving into a very complicated sea. If my noble friend Lord Stonham can assure us that this is quite all right—and I hope he can—I shall certainly support the Amendment.
§ 11.36 a.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)Any Minister would be extremely rash to give an assurance that any action that anyone might take might not in some way lead to international complications, and I cannot give a 100 per cent. guarantee on that point to my noble friend. But the Bill we are discussing, and in particular the Amendments, arise out of international agreements and they have been very carefully considered by international lawyers. This is the best guarantee we can have that the actions we are now taking, and which the Government firmly support, will in fact remove international difficulties and not add to them. I hope that my noble friend will accept that from me.
This gives me the opportunity to refer to the point my noble friend made in a discussion on an earlier Amendment about what he regarded as the complicated nature of this Bill. I agree with him that it is essential that the changes this Bill will bring about should be very clearly understood by the people likely to be concerned, and I will certainly bear in mind his suggestion that a statement about this Bill, which would be as simple and as easily understood as possible, should be published in due course.
§ On Question, Amendment agreed to.
§ LORD BLYTONI beg to move Amendment No. 4.
§ Amendment moved—
§
Page 8, line 40, at end insert—
(2A) A court in which proceedings are brought in pursuance of section 6 of this Act shall be entitled to disregard the provisions of subsection (2) of this section in so far as it appears to that court appropriate to do so for the purposes of those proceedings; but nothing in this subsection shall be construed as prejudicing the provisions of section 7(3) of this Act."—(Lord Blyton.)
§ On Question, Amendment agreed to.
590§ Clause 9, as amended, agreed to.
§ Clause 10 [Supplemental]:
§ LORD BLYTONmoved to add,to subsection (3):
; and in section 46(2) of the Matrimonial Causes Act 1965 and section 99(2) of the Superannuation Act 1965 (which provide for the interpretation of references to adoption in those Acts) the references to an enactment of the Parliament of Northern Ireland corresponding to the Act of 1958 shall be construed as including references to an enactment of that Parliament corresponding to this Act, and in the said section 99(2) the reference to an adoption order within the meaning of the Act of 1958 shall be construed as including a reference to an adoption order made under an} enactment in force in any of the Channel Islands or the Isle of Man and corresponding to section 1 of this Act.The noble Lord said: I beg to move Amendment No. 5. This Amendment amends two statutory provisions which provide for the interpretation of references to adoption in those Acts. The first statutory provision is Section 46(2) of the Matrimonial Causes Act 1965 which provides:In this Act—'adopted' … means adopted in pursuance of an adoption order made under the Adoption Act 1958, any previous enactment relating to the adoption of children or any corresponding enactment of the Parliament of Northern Ireland or made in the Isle of Man or any of the Channel Islands.As it stands, Section 46(2) will not cover an adoption made in Northern Ireland under an enactment of the Parliament of Northern Ireland which corresponds to the Bill. This Amendment provides that the reference to an enactment of the Parliament of Northern Ireland corresponding to the Adoption Act 1958 shall be construed as including a reference to an enactment of the Parliament of Northern Ireland corresponding to the Bill.The result of this Amendment is that when Northern Ireland pass legislation similar to the Bill so that they can ratify the Convention and grant adoptions under the Convention in Northern Ireland, such adoptions will be within Section 46(2) of the Matrimonial Causes Act 1965. Section 46(2) is drafted in such a way that if the Channel Islands or the Isle of Man ratify the Convention and grant adoption orders under the Convention, such orders will be included in Section 46(2) and no amendment to that section is needed.
591 The second statutory provision is Section 99(2) of the Superannuation Act 1965 which provides:
Any reference in this Act to an adopted child of a person shall be construed as a reference to a child adopted by him (whether alone or jointly with any other person) in pursuance of an adoption order made under the Adoption of Children Act 1926, the Adoption Act 1950, the Adoption Act 1958, or the Adoption of Children (Scotland) Act 1930, or any corresponding enactment of the Parliament of Northern Ireland, or adopted by him (whether alone or jointly with any other person) in accordance with the law of the place where he was domiciled at the time of the adoption, and references to a person by whom another person has been adopted shall be construed accordingly".The proposed Amendment will extend the meaning of adopted child within Section 99(2) to include a child adopted under any enactment of the Parliament of Northern Ireland corresponding to the Bill. The Amendment will also extend Section 99(2) to include a child adopted under an adoption order made under any enactment in force in the Channel Islands or Isle of Man and corresponding to Clause 1 of the Bill. By reason of the different wording in Section 99(2) of the 1965 Act it is necessary to refer expressly to adoption orders that may be made in the Channel Islands or the Isle of Man under the Convention if they ratify it. Internal adoptions in the Channel Islands or the Isle of Man are already covered by Section 99(2) as it stands because their adoption laws are based on domicile. It is necessary to have the extension to Convention adoptions because under the Convention jurisdiction can be based on nationality.So far as concerns the application of these and other enactments to adoptions granted abroad, whether jurisdiction is based on domicile or nationality, Clause 4 of the Bill has the effect of applying the enactments to such adoptions. Clause 4, however, will not apply to adoptions in Northern Ireland, the Channel Islands or the Isle of Man because the Adoption Act 1964 already applies to those adoptions. The Adoption Act 1964 will not apply to these two Acts of 1965 because the Act of 1964 applied only to previous Acts and the Acts of 1965 were subsequent. I beg to move.
§
Amendment moved—
Page 9, line 30, at end insert the said words. —(Lord Blyton.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ Clause 11 agreed to.
§ Clause 12 [Rules and orders etc.]:
§ LORD BLYTONI beg to move Amendment No. 6. This is a very small Amendment. It amends a reference to England so as to include Wales. By reason of Section 4 of the Welsh Language Act 1967, references to England in any Act do not now include Wales and it is therefore necessary to refer expressly to Wales in the Bill. I beg to move.
§
Amendment moved—
Page 11, line 14, at end insert ("and Wales"). —(Lord Blyton.)
§ LORD LEATHERLANDI think we had better rush this through as quickly as we can while we still have power to legislate for Wales.
§ On Question, Amendment agreed to.
§ Clause 12, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported, with the Amendments.
§ Then, Standing Order No. 41 having been suspended (pursuant to the Resolution of July 15), Report received; Bill read 3a, with the Amendments, and passed, and returned to the Commons.