CHILDREN BILL [H.L.]

HL Deb 04 February 1975 vol 356 cc780-850

4.2 p.m.

House again in Committee.

Clause 2 [Duty to promote welfare of child]:

Baroness YOUNG moved Amendment No. 1: Page 2, line 13, after "adoption" insert "custody or care".

The noble Baroness said: Clause 2 is of course really at the centre of the Bill, and the principle that the interests of the child should come first is one that we all support. The Amendments which follow the present Amendment are, indeed, designed to strengthen the wording of the clause and to make it even clearer what it is that we wish to achieve. The first Amendment is really a probing Amendment. It is designed to make quite sure that what I believe to be implicit shall become explicit—that is, that not only in the first Part of the Bill, which deals with adoption, but also in the other two Parts dealing with custody and care, the same principle shall apply.

I am not a lawyer, but I think that this wording is incorrect. On looking at the other Amendments which appear on the Marshalled List, I see that there is one which will apply the wording of the Guardianship of Minors Act 1971 to the custody sections of the Bill. My noble friend Lord Sandys and I have attached our names to that Amendment, and I see the point that, if the present Amendment were to be carried, it would provide less effective wording than the later Amendment. It is for this reason that I do not intend to press my Amendment. However, I should like to have on record that my interpretation of what is intended in the Bill is correct, and whether the Government would be willing to consider making explicit in the other sections of the Bill which deal with custody and care the principle which appears in the first Part of the Bill. I beg to move.

The LORD CHANCELLOR

I appreciate that this is a probing Amendment, as the noble Baroness, Lady Young, has said, and that its intention is to extend the language of Clause 2 to cover custody or care as well as adoption. Clause 2 relates to Part I of the Bill, which is concerned exclusively with adoption. Parts II and III, which relate to custody and care respectively, have their own welfare clauses, and that which the noble Baroness wishes to safeguard is, I think, adequately safeguarded by the provisions of the Bill. Part II is covered by Section 1 of the Guardianship of Minors Act 1971, which states: Where in any proceedings before any court (whether or not a court as defined in section 15 of this Act)—

1. (a) the custody or upbringing of a minor; or
2. (b) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof,

is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. That would seem to deal with the position under Part II of the Bill. Part III is covered by Clause 49 as regards the welfare of children in the care of a local authority. The new Section 12(1) of the Children Act 1948 is substantially similar to Clause 2 of the Bill; that is to say, full account—and I emphasise those words—of welfare must be taken. But in that case there is also the need to protect the public from a young person who may need, for example, to be kept in custody. That is reflected in the provision at the top of page 32 of the Bill, which reproduces Section 27(2) of the Children and Young Persons Act 1969. I hope that in the light of those observations, the noble Baroness will find the assurance that she seeks.

Baroness YOUNG

I should like to thank the noble and learned Lord for that reply. I am sorry that I do not quite understand the point about custody which he made. I appreciate that the Guardianship of Minors Act applies, but I do not understand where in the custody section this is made clear. Can the noble and learned Lord the Lord Chancellor tell me I where it is, or whether it is, as I thought, implicit rather than explicit?

The LORD CHANCELLOR

I think that is so.

Baroness YOUNG

In that case would not the noble and learned Lord the Lord Chancellor agree that it ought to be stated? I raise this matter because this has been very much the centre of concern both on Second Reading and certainly in the minds of the public, and I wonder whether the Government would consider putting down an Amendment to say what I believe the Bill intends.

The LORD CHANCELLOR

I am very willing to look at this matter between now and Report stage.

Baroness YOUNG

I should like to thank the noble and learned Lord the Lord Chancellor for that reply and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.11 p.m.

Lord WIGODER moved Amendment No. 2: Page 2, line 14, leave out "take full account of" and insert "have regard to all the circumstances, first consideration being given to".

The noble Lord said: I beg to move this Amendment in the names of my noble friend Lord Byers and myself, and I express appreciation to the noble Baroness, Lady Young, and the noble Lord, Lord Sandys, for the support that they have indicated. I put forward this Amendment as containing a matter of some substance ; namely, what is the emphasis which a court is to place on the welfare of the child in proceedings where that is in issue? There appear to be three escalating degrees of emphasis upon which the courts can approach this matter. First of all, at the bottom of the scale, there is the degree of emphasis proposed in Clause 2 of the Bill; namely, that the court shall take: full account of the need to safeguard and promote the welfare of the child …". That is perhaps a somewhat insipid and by no means emphatic or forceful test.

Higher up the scale there is the proposal contained in the Amendment that the courts should give not simply full consideration to the welfare of the child but, having regard to all the circumstances, first consideration should be given to the welfare of the child. At the top of the scale there is the paramountcy test; namely, that the court shall have regard to the welfare of the child as the overriding consideration. As the noble and learned Lord the Lord Chancellor has reminded us the paramountcy test is already part of the law in relation to custody and guardianship proceedings. It may be that it applies also to custodianship proceedings, under Part II of the Bill, and there is already an Amendment which I venture to put down to make that clear, should it not already be clear. I would hope that the paramouotcy test would also apply to care proceedings under Part III of the Bill. Again, there is an Amendment put down to that effect.

The difficulty that arises with making paramountcy the effective consideration under Part I of the Bill, under the adoption part of the Bill, is that the issue will, of course, arise only in contested adoption proceedings. The contested adoption proceedings will invariably be under Clause 11 of the Bill where it is sought for one reason or another to dispense with the consent of the natural parents to adoption. There are various grounds set out in Clause 11(2), such as that the natural parent: … has abandoned or neglected the child; or … ill-treated the child". Again, the question of the emphasis to be given to the welfare of the child is not likely to cause the court any difficulty. The area where the courts may find difficulty is in Clause 11(2)(b), where it is claimed that the natural parent is withholding his agreement to the adoption of the child unreasonably. It is not suggested there that the parent is behaving in any way culpably, but the court has to decide between the merits of the claims of the natural parent and the adoptive parent, and has to decide whether the natural parent is withholding his agreement unreasonably.

It is not a provision which so far has been used very much, but it is a situation in which the courts may be tempted, if the interest of the child is to be regarded as paramount—as the overriding consideration—to give undue emphasis to, for example, the material advantages which might be offered by the adoptive parents as against the some-what meagre advantages which the natural parents may be able to offer in support of their child. Nevertheless, the natural parents in that situation may be capable of being adequate parents and of looking after the child properly. In those circumstances it would appear that the paramountcy test—putting the interests of the child uppermost, as the overriding consideration—might give rise to some injustice at the expense of the natural parents of the child.

Therefore, I venture to suggest that the paramountcy test is not the appropriate test to write into Clause 2 of the Bill. One is then left with a situation in which the choice really is between the present proposal that the court should take full account of the need to safeguard and promote the welfare of the child, and the proposal in the Amendment now tabled that the court shall: … have regard to all the circumstances, first consideration being given to the welfare of the child. I would venture to suggest that what is contained in the Amendment is a stronger protection for the child. It places the interests of the child in the forefront of the court's consideration, without running a risk of overriding any proper claims that the natural parents may have. Because it gives the child better protection I would venture to commend this Amendment to your Lordships. I have taken the wording, … have regard to all the circumstances, first consideration being given to", directly from the unanimous recommendation of the Houghton Committee, which reported strongly that, in relation to adoption proceedings, there should be written into the Statute Law the test which is now proposed. I beg to move.

4.17 p.m.

Baroness FISHER of REDNAL

I understand that the noble and learned Lord the Lord Chancellor will be replying to all the remaining Amendments on Clause 2. So, if the noble and learned Lord will allow me, I will speak to the Amendments standing in my name. I do so primarily because the Bill has as its title: An act to make further provision for children", and I think that is implicit in what we are discussing. It is a Bill to further the interests of children—

Baroness WOOTTON of ABINGER

Are we not to dispose first of Amendment No. 2?

The LORD CHANCELLOR

As I understand it, it is desired to consider, along with Amendment No. 2, Amendments Nos. 2A, 2B, 2C and 2D which I understand can be discussed together, even though they may have to be adjudicated upon separately.

Baroness FISHER of REDNAL

I thank the noble and learned Lord for coming to my rescue. Perhaps it is my own fault for not knowing exactly the principles behind the debate. I was led to understand that I was to come in at this stage. As I was saying, the Bill is a Bill to promote further provisions for children, and I feel that the clause as it now stands—concerned with the duty to promote the welfare of the child—does not go so far as saying that the welfare of the child is to be regarded as paramount.

Therefore, while I think that the principle of the clause is right—and I welcome that principle—it ought, in my view, to be strengthened to give the maximum protection to any child in a disputed case. If we are to look at the Bill and its principles—and its princiles must be to give greater protection for the child—I cannot understand why the Government cannot give maximum protection to the child. Why give 50 per cent., 70 per cent., 80 per cent. or 90 per cent.? Why not give maximum protection? If the Government give maximum protection in guardianship and custody, why not maximum protection in adoption?

My Amendments, I know, practicaly rewrite the whole of the clause; and, perhaps, do so in a much more simplified form than the legal form which is normally part and parcel of a Bill. I make no apology for that. It is contended that not knowing the law is no protection; but an adoptive parent, a foster parent, or a single girl giving up her child would have great difficulty in understanding many of the clauses in this Bill. Perhaps my Amendments simplify the clause, and this in itself might lead my noble and learned friend not to accept them. If this is a children's Bill, and if the child is to have maximum security and is not to be used as a pawn in a struggle between adults—and this is why your Lordships are considering it as a Bill for children—I think the clause ought to be amended, perhaps, in the way I have suggested this afternoon.

Baroness ELLIOT of HARWOOD

I hope that I am in order in discussing both these Amendments at the same time. I should prefer to support the Amend-ment of the noble Lord, Lord Wigoder, although I agree with what was said by the noble Baroness, Lady Fisher of Rednal. The real point is that we want to make it perfectly clear in any kind of conflict or argument as between parents, or as between perhaps step-parents or others, that it is the child about whom people are really concerned. It seems to me, having regard to all the circum-stances, that the words "first consideration being given to" are perfectly simple and straightforward and mean exactly what they say—and what they mean is what I feel should be strengthened and written into the Bill. Clause 2 is an excellent clause; but it does not punch home this important point; one which I think is vital, but one which has not been stressed enough in any legislation of this kind. I would support the Amendment of the noble and learned Lord, Lord Wigoder, while not disagreeing with what was said by the noble Baroness, Lady Fisher of Rednal.

The Lord Bishop of LEICESTER

I should like to say a word in support of Lord Wigoder's Amendment because it gives me the only opportunity I can have to make the point that I really came to the House to make. I mean to make it in support of an Amendment which was being talked of but which (as so often happens in these cases) did not survive finally to appear on the Marshalled List. That Amendment was to put in a clause to make it impossible for an adoption order to be given to the benefit of parents who, because of their objections to medical treatment, hold those particular views which imperil, or may imperil, the physical welfare of a child.

I am not going back in the slightest on what I said during the Second Reading debate: I do not want the religious convictions of parents, once they have released a child for adoption, to be binding. But I do not think that it is binding upon society to hand over the care of children to parents whose views are known to be such as may imperil the health of the child. Therefore, as that Amendment has not been tabled, I want to support the noble and learned Lord, Lord Wigoder, because it gives one more hurdle, as it were, of protection to the child, if the child is to be the first consideration. It would thus allow those who are considering these matters to take into account any peculiar views (as most of us regard them) about the medical care of children, and thus decline to give an adoption order in such cases.

Lord STOW HILL

May I intervene to support—may I call them so?—the Amendments; for they are directed to the same objective. I put my argument in the form of a question. The controversy before the Committee really assumes that the Amendments cover a situation in which the welfare of the child, with regard to whom adoption proceedings are being considered, is weighed against the welfare, or interests, or desires of other persons. Obviously, one has to approach matters of this sort with humanity, and in relation to the parent, adopters, or the child itself considerations of great human compassion must arise.

I should be grateful if the noble and learned Lord, when he answers the case put forward by those who have spoken, could give instances of cases in which those who have to decide about adoption could deliberately say to themselves: "The interests of the child would prompt the answer, Yes; but the interests of somebody else, whether parents, adopters or whoever they may be, would prompt the answer, No." Is there any practical case, likely to arise (other than most exceptionally) in which anybody concerned with the adoption proceedings ought really ever to prefer the answer "No" to the answer "Yes". In other words, is there really any practical situation to be contemplated in which those who have to take this decision can say to themselves: "We know that the welfare of the child would prompt one course; we know that the welfare of others would prompt a different course. We prefer the welfare of others; and we reject the welfare of the child as the first and paramount consideration."

I put it to the Committee, and to my noble and learned friend the Lord Chancellor, that it is really very difficult in practice to conceive of a situation in which those concerned with decisions of this sort ought ever really to be allowed to say to themselves: "If we were considering the interests of the child we should come to one conclusion, but we do not propose to reach that conclusion; we propose to prefer the interests of somebody else to the interests of the child." Unless there are circumstances (which I personally find it difficult to envisage) which are substantial in number, which are waiting there and which deserve the most profound consideration, I should have thought that when one is approaching this sort of human problem it almost stands to reason that one must say of the child—who is unprotected, who cannot speak for itself, who was not brought into this world with its own consent—that its welfare and its interests must be looked to first and foremost, and that it is those interests which dictate in almost any conceivable circumstances the answer that those responsible have to give.

Lord HAILSHAM of SAINT MARYLEBONE

Before the noble and learned Lord replies, I wonder if I might put to him two questions, both of which are designed to elucidate what will be the effect of any of these Amendments, should they be carried and should they have to be read with Clause 11 of the Bill as it stands, assuming that there is no amendment to it. It is easy to say that the interests of the child should be the first consideration, or should be the paramount consideration, or should be taken into account.

But Clause 11, in effect, quite plainly and unequivocally says what is now the law, with one alteration. If the child is not free for adoption, the parents' consent is necessary unless it is dispensed with, and the grounds upon which it can be dispensed with are specifically stated in the clause. It follows from that, in answer to the noble and learned Lord, Lord Stow Hill, that the interests of the child under Clause 11 are not paramount for adoption proceedings and are not the first consideration for adoption proceedings. In other words, the court is being told in Clause 11 that where the child is not free for adoption there are legal considerations which must be taken into account in priority to anything else.

Clause 2, as amended, will say that the first consideration is the interest of the child. Now which is right? That is the way in which I would put the first question to the noble and learned Lord. At the moment the situation is this, if no Bill is passed: the parents' consent is necessary—we are leaving out the question of freedom for adoption for the moment—or must be dispensed with. It can be dispensed with, broadly speaking, in either of two sets of circumstances. Either the parent has done something wrong towards the child (and that is being modified slightly in Clause 11 but not in principle); or the parents' consent is being unreasonably held. When one of those two groups of circumstances apply, the parents' consent is necessary, both now and as it will be if the Bill is passed, unless the child is free for adoption. Which is going to be right if this Amendment is passed? I think we ought to know, and if I may I would put it in the context of another question, the second question that I wanted to ask.

It is all very well to say, by and large, as everyone has of Clause 2, that the interests of the child must be paramount or must be the first consideration, as the case may be; but, of course, that is not what we are talking about either under Clause 2 or under Clause 11. What we are talking about is who is to decide what is in the interests of the child. The effect at the moment is that under Clause 11, or under the existing law, what the Bill says and what the existing legislation says is that unless the parents' consent is with-held—obviously a good parent will decide what is in the interests of the child; we do not doubt that—as the law is now and as it would be if the Bill were passed with Clause 11 in it, the parent has the primary right to decide, so far as regards adoption, what family the child should belong to; whether it should belong to its natural family or to some other family. That is what the Bill says and that is what the existing legislation says.

What Clause 2 would appear to say if Clause 11 is omitted is that the court and not the parent should make the decision as to what is in the interests of the child. Although we may all agree that the interests of the child ought to be the first consideration, are we all quite so certain that what the parent says is necessarily worse than what the court says, if the parent is a reasonable parent? I do not know, because I do not know, with both the clauses in, what is going to be the Lord Chancellor's answer. In passing, I would say this to the right reverend Prelate. I heard him say on Second Reading (and I did not agree with him) that where the parent wanted the child to be brought up in a particular faith he ought to have his way. I do not know whether that is what he said. I understand that it is not, and I beg the right reverend Prelate's pardon. I have done him an injustice, and I apologise and withdraw. My recollection was for the moment at fault.

But what he now says, in effect, is that in some cases parents of a particular faith ought to be debarred from adoption; and we can all think of one or two rather well-known faiths where they do not allow medical attention in the ordinary way. I wonder whether he really realises the implications of that? Again, the question arises as to whether a court or whether a Christian Scientist family are the best judges of what are the interests of the child and how we are to tell. These factors have to be very carefully weighed. I do not know what the Lord Chancellor thinks, but that is the implication of what the right reverend Prelate is saying. I am just wondering what the view of the Government may be.

4.37 p.m.

Lord SIMON of GLAISDALE

I venture to support one or other of these Amendments, on two grounds. The first is that they produce greater simplicity and consistency in the law, and the second is that to my mind they are justifiable on their merits. With regard to what the noble and learned Lord, Lord Hailsham of Saint Marylebone, has just said, your Lordships will note that Clause 2 lays down a standard, and the question is, what should be the standard adopted? I agree with the noble and learned Lord, Lord Wigoder, that it is most likely to be operative in the circumstances of Clause 11(2)(b), and at the moment the law has a perfectly well understood standard in custody, guardianship, access and so on. That has been worked and workable since 1925 ; indeed, it probably embodies the Common Law. It is the welfare of the child that shall be the first and paramount consideration. Clause 2 introduces, to my mind quite unnecessarily, a different test and the mere fact that a different test is introduced is immediately a complication to the law and would, I think, create difficulties. Therefore of all the Amendments before your Lordships I personally like No. 2A, although I would prefer No. 2, which has the backing of the Houghton Committee recommendation. That is the first reason; that Clause 2 as it stands introduces a new and complicating standard in the law.

The second reason is this. Why has the law said that the welfare of a child shall be the first and paramount consideration? It is often a very difficult decision for a court to come to. It means very frequently preferring the interests of the child to that of the mother who has brought the child into the world. Nevertheless, as I say, that has been for half a century—and probably far longer—the test which the law has applied and it is justifiable, found to be workable and the best test, because in considering the welfare of the child you are considering the future of society. Therefore, painful as it is very often, the interests of others who have frequently gone to great pains and expense and trouble to bring up a child have to be sacrificed to the child as the embodiment of the society of the future. Therefore, I should like to go back to the test that was first laid down statutorily in 1925, or, otherwise, to see either Amendment No. 2 or No. 2A adopted.

Lord GORE-BOOTH

May I make a short statement as a layman, and as someone who took part in the Second Reading debate on the part of the family, with a feeling that the family is a natural environment in which to grow up, and that therefore anything which excludes the family altogether from a consideration of principle should be looked at carefully? I should like to express my appreciation of the compassionate ingenuity of the Amendment introduced by the noble and learned Lord, Lord Wigoder. It says that the interest of the child is normally paramount, but there are unforeseeable moments and cases in which the very minimum of discretion ought to be provided for in the Act.

Lord SIMON of GLAISDALE

May I interrupt the noble Lord? The test of the first and paramount consideration is not an all-exclusive one ; it does not exclude other considerations.

Lord GORE-BOOTH

I thank the noble and learned Lord very much. If that is the case, my argument is to that extent weakened. I still think that there is advantage in the wording in Amendment No. 2 over other wording which might be misinterpreted, contrary to the interpretation which has no doubt correctly been given by the noble and learned Lord. So I maintain my view that this is a wiser definition. Its wisdom is enhanced by the important point to which the noble and learned Lord, Lord Hailsham, drew our attention, that there is an element of subjectivity in any judgment of this kind.

4.42 p.m.

The LORD CHANCELLOR

These Amendments are obviously important because they go in some ways to the root of the Bill, which is the wish to see that children in adoption are given an excellent chance from the beginning. I confess that I find most of the discussion on the exact form of words to be largely semantic, but it is clear that some noble Lords who have spoken regard them as of substance. I will examine them and invite the Committee to a conclusion. There are three alternative tests which are suggested by the terms of Clause 2 and of the Amendments. The first is the language of Clause 2, that the welfare of the child shall be taken fully into account; then there is the Amendment which requires first consideration to be given to the child's welfare; then, finally, there is the Amendment which says that it should be regarded as paramount. The Houghton Committee considered what form the test for the welfare of the child should take and, in an interesting passage in the Report, they suggested a legislative position to codify the judgment of the noble and learned Lord, Lord Hailsham, in Re W. They departed from the suggestion which has been made by my noble friend Lady Fisher of Rednal.

The Amendment moved by the noble and learned Lord, Lord Wigoder, seeks and purports to place greater emphasis on the welfare of the child in reaching decisions regarding adoption by inserting part of the wording that the Houghton Committee itself recommended. They considered that welfare should be the first consideration for the purposes of the grounds on which courts are empowered to dispense with parental consent. Clause 2, however, goes further than that Committee recommendation. It indicates that, first, the duty should arise to take full account of the need to safe-guard and promote the welfare of the child on not only the part of the courts, but of local authorities and adoption societies also. Secondly, the language of Clause 2 refers to the duty to promote the welfare of the child and that duty relates to all decisions regarding adoption, not merely to those concerned with dispensing with parental consent. I submit, therefore, that the language of the clause is wider and more all-embracing than the language of the Amendment proposed by the noble and learned Lord, Lord Wigoder.

I do not think there is a great deal between us in practice, but I submit, as a matter of drafting, that the use of the phrase, "first consideration" is not very helpful, because it may well lead to confusion about what should be the second and third considerations. I submit that "full account" is more comprehensive and more emphatic than what is proposed. The phrase, "throughout his childhood" has been substituted for the phrase, "long term welfare". I prefer the phrase "throughout the childhood" rather than the Houghton Committee's language of "long term", and to that extent I agree with what is in the noble Lord's Amendment. I venture to suggest, for the reason I have indicated in regard to the quality of the words, that the clause as it stands is more effective to achieve the purpose than the words of the proposed Amendment. Regarding the use of the word "paramount", the difficulty I see in regard to that is that it would make much of the law of adoption unworkable. In effect, it would be exclusive if the consideration was paramount.

Lord SIMON of GLAISDALE

May I ask why the noble and learned Lord says that, when it is not construed as exclusive so far as custody and guardianship are concerned?

The LORD CHANCELLOR

I should have thought that in this field, if the welfare of the child was paramount, there could be little or no question of parental rights at all. This is the difficulty I find with it. Clearly, in this field parental rights have to be considered. I was asked by my noble and learned friend Lord Stow Hill to give some concrete examples. I do not know that I can helpfully do that; but we cannot just ignore and ride roughshod over the rights of the parent of the child. Clause 11 indicates the strict conditions which are imposed where an adoption is sought without the consent of the parent or guardian.

Lord SIMON of GLAISDALE

I am so sorry to keep interrupting the noble and learned Lord, but surely the word, "paramount" merely means that, when there is any conflict, the considerations of the parents should not be excluded but the welfare of the child is to prevail.

The LORD CHANCELLOR

It is clear that we are to disagree about the effect of the word, "paramount", and I do so with great hesitation in regard to the noble and learned Lord. This is my view of the matter and I believe that in this, at any rate, I have had support on an earlier occasion from the noble and learned Lord, Lord Hailsham of Saint Marylebone, but I may be taking his name in vain in this connection. I think that is right, though I am very willing to look at the matter again in view of the authority of the noble and learned Lord. However, we take the view that the language of Clause 1 makes it clear that full account shall be taken of the need to safeguard and promote the welfare of the child throughout his childhood. That is the cardinal principle and, in applying that principle, where there is room for conflict, for instance, on the application of Clause 11(2)(b), the court will have to decide in the face of the parents' protestations whether the withholding of agreement by the parents is unreasonable in the circumstances. There again, I would conceive that the future of the child would be taken fully into account by the court in dealing with the matter.

There are the further Amendments which were moved by my noble friend Lady Fisher, who was troubled, as Amendment 2B indicates, by the inclusion of the words "so far as practicable" in line 16 of the clause. The question of practicability arises, of course, because, after all, the child in question may be only a babe-in-arms and, though babes-in-arms can certainly express their feelings mightily, they cannot convey their wishes. That really is the explanation of the words "so far as practicable". There is nothing sinister or limiting with regard to them.

Baroness FISHER of REDNAL

May I just say to my noble and learned friend that I accept what he says; but surely this phrase follows on, … having regard to his age and understanding.

Lord BYERS

One of the things that worries me is the way in which the noble and learned Lord the Lord Chancellor opened his answer on this by implying that this discussion was semantic—I am sorry, I thought he had finished.

The LORD CHANCELLOR

I must apologise: I had not quite finished, but I did not intend to brush aside my noble friend's intervention.

Baroness FISHER of REDNAL

I do apologise.

The LORD CHANCELLOR

The provision of the phrase "so far as practicable" is necessary to deal with the situation which I have indicated. Perhaps it adds something to the phrase about having regard to the age and understanding of the child, but I think it is useful to have it as a protective provision. Then there is another Amendment put down by my noble friend. May I just be permitted to look at Clause 1, page 2, line 18? The Amendment proposes the omission of the words, "and give due consideration to them". I would have thought that was a useful reinforcing provision; so the clause, in seeking to ensure the welfare of the child, first states it as being something which shall be taken fully into account and then, to underline the fact that it is the child who is primarily in mind, there follow the provisions that, … the court shall … ascertain the wishes and feelings of the child … and give due consideration to them ". So in my submission the words are helpful. I invite noble Lords to come to the conclusion that the clause as it now stands seeks effectively to establish that the welfare of the child is a primary consideration to be balanced against the position of the parents of the child, and that in conjunction with the provisions of Clause 11 of the Bill—which I do not regard as being in conflict—it provides adequate machinery for the protection of the adopted child.

4.57 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

Before the noble and learned Lord sits down, may I say that I do not necessarily want to press him for an answer now, if he finds it rather difficult or embarrassing at this stage, but I do attach importance to the question I put to him. I fully concede that the clause as now drafted is not incompatible with Clause 11, because it says that full account must be taken of the interest of the child. What I am concerned about is that a court should not be able to take a child away from a parent who has done nothing wrong and simply does not want a change of the status quo, and who therefore cannot be said to be acting unreasonably, simply because the court imposes its own view of the child's interest over and above that of a parent; for instance, if a millionaire suddenly wants a child to impose it on a relatively poor parent, if the court takes that view.

If the welfare of the child is the first consideration—and this is said in the presence of the noble and learned Lord, Lord Simon of Glaisdale, whose experience is so infinitely greater than mine— in the light of some experience, it seems to me a view that some courts would possibly take. I therefore ventured to put to the noble and learned Lord what would be the impact of the amended Clause 2—not Clause 2 as it stands—on the unamended Clause 11, if both were passed. If the noble and learned Lord says that he would rather not answer at this stage, I wonder whether he would take this back for further consideration, because I attach great importance to it.

The LORD CHANCELLOR

I would certainly be willing to do that. I would rather consider the matter at leisure and at length on another occasion.

Baroness BACON

I am a little disappointed that my noble and learned friend cannot see his way clear to accept the Amendment of my noble friend Lady Fisher of Rednal. I do not really think there is a great deal between the noble and learned Lord and my noble friend as to the intended meaning of Clause 2. He has just said that he expects Clause 2 will mean that the child will have the primary consideration. I think that is exactly what my noble friend wants to make quite clear, when she says that the child should be regarded as paramount; in other words, that it will be the primary consideration. Therefore, I believe he is thinking along the same lines. But, unfortunately, that is not what Clause 2 says; it says something quite different. Clause 2 says that a court or adoption agency shall take full account of the need to safeguard et cetera, which could mean that while they were taking full account they could be giving prior consideration to something else. That is where the sticking point is. I hope that my noble and learned friend will agree to look at this wording again, and not turn it down completely at this stage.

Lord PANNELL

I can almost declare an interest about this kind of matter. Even now, it is not always true in custody orders in other courts that the child's affairs are considered to be paramount. Often there is a conflict of interest, not only between the parent and child, but between the parents themselves; there is argument between two parents as to where the child should go. Bearing in mind that new rules have been brought out in the courts—I think only yesterday—regarding the naming of the child, I should have thought that what has been said by the noble and learned Lord, Lord Simon of Glaisdale, was true. If one states the word "paramount" it is a firm principle; all the rest becomes legal equivocation.

Lord BYERS

I do not want to prolong the debate, but the debate we have had so far has made it absolutely clear that there is nothing semantic about the division of opinion on this point. We have a duty as a House, particularly the House which has been given the first go on a major Bill, to send it to another place in the best possible shape. In the light of the fact that there is a difference of opinion between the noble and learned Lord, Lord Simon of Glaisdale, the wording in the Houghton Report, and the noble and learned Lord, Lord Hailsham of Saint Marylebone, about the conflict, or possible conflict, between an amended Clause 2 and Clause 11, I would ask the noble and learned Lord the Lord Chancellor whether he would give us an assurance that he will look at this matter again and, if possible, consult. I do not think that Parliament has been very clever on children's legislation, and we owe it to children to get instructions to a court in the form of a Statute as clearly as we possibly can; and this is the best place to do it.

The LORD CHANCELLOR

I most readily respond to the reasonable request of the noble Lord, Lord Byers. This is a difficult field. As my noble and learned friend Lord Stow Hill has said, we are dealing with intimate and sensitive family matters here. Certainly, the intention of this clause as drafted is, at any rate, to give priority (if I may coin another word in a very difficult minefield) to the interests of the child; and that is sought to be done in both parts of Clause 2. However, those who have spoken with great authority and great experience in the courts, and as an adopting parent himself in the case of one noble Lord, have raised important questions which with my right honourable and honourable friends I will most certainly go into, and if consultations between us on some of these matters will be helpful, as is may well be, I will most readily agree to undertake them. I agree that a great responsibility rests upon us in regard to this Bill. It is thought, and thought rightly, that the special learning and expertise of noble Lords will be of great usefulness. I assure noble Lords that neither I nor my noble friend Lord Wells-Pestell approaches this Bill in any dogmatic sense. We must do our best together to obtain the right results.

Lord WIGODER

In the light of those assurances from the noble and learned Lord the Lord Chancellor, and knowing that he will take full account of the observations of the noble and learned Lord, Lord Simon of Glaisdale, and indeed perhaps also give them first consideration, I beg leave to withdraw this Amendment.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Grenfell)

I think I should draw attention to the fact that, although we have spoken to the remaining Amendments in this group, we must put them separately. So I am dealing with Amendment No. 2.

Amendment, by leave, withdrawn.

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

Lord HYLTON

I should like to say a brief word, purely as a layman. It was the theme of almost all the speakers in the Second Reading debate that the interests of the child should be paramount. It is possible that those who spoke then and those who have moved Amendments today may not realise quite which set of parents Clause 2 deals with. We must get it quite clear that it is reasonable parents, as my noble and learned friend mentioned; it is not those who have withheld their agreement unreasonably and it is not the criminal, dangerous child-harming people. It is the ordinary reasonable parents who may have just as good an idea of what will be in the long-term interests of their child as has any court, however learned. I hope that that point will be borne in mind.

Clause 2 agreed to.

Clause 3 [Approval of adoption societies]:

5.7 p.m.

Baroness ELLIOT of HARWOOD moved Amendment No. 3: Page 3, line 12, leave out subsection (7).

The noble Baroness said: I rise to move this Amendment on behalf of three of the adoption societies in Scotland: the Scottish Society for the Adoption of Children, the Guild of Service in Edinburgh, and the Scottish group of the Association of British Adoption Agencies. What they have asked me to request, which I am perfectly prepared to do, is that the same approval of adoption societies as outlined in Clause 3(1) shall apply to Scotland.

As your Lordships will see, Clause 3(7) says that Clauses 4 and 5 do not apply to Scotland. I move this Amendment because adoption societies in Scotland are at the moment approved by a county, and in the future it will be done by a region. That can mean a variation of standards from one area to another. Also, in some areas there will be two or three societies, and in others possibly one or even none. It therefore means that approval for an adoption society in an area where they are perhaps not operating but have been asked to operate is somewhat complicated. They would like the Secretary of State to approve all the adoption societies in the same way, and with the same strict rules as are laid down in the Bill for the societies in England.

There is close co-operation in any local authority area in Scotland between the voluntary societies and the local authority. This would still continue, as the voluntary agency must inform the local authority of any child placed by them in any area. If the voluntary societies have to register with every local authority it becomes rather cumbersome. If, for instance, a Guild of Service is approved by the Secretary of State as an adoption society, it can then go ahead on request, whether from an individual or from a local authority, knowing that it has the approval of the Secretary of State.

I know there is a little fear among directors of social work in Scotland who gave evidence to the Houghton Committee that to change the system to the one that is in operation in England and Wales might cause confusion. But I do not think there is any reason for this anxiety, provided that it is made mandatory under the Bill for the voluntary society to notify the local authority of any adoptions in this area. In fact, both the local authorities and the adoption societies work so closely together that I do not anticipate there would be any difficulty.

If the noble and learned Lord the Lord Chancellor will agree to this Amendment, either it will mean that Schedule 1 will need to be altered to bring it into line with Clauses 3 and 4 of the Bill, or, although I have not studied this very carefully, Schedule I might have to be omitted. In the meantime, however, I move that subsection (7) of Clause 3 be omitted. I beg to move.

Lord WELLS-PESTELL

We are aware of the points that the noble Baroness has made and, if I may be permitted to say so, recognise that there is a good deal of merit in them. As she has explained the situation so fully and has said many things which I should have said myself, may I say that the Secretary of State for Scotland has already received representations from interests representing adoption societies and is aware of what they want. The noble Baroness may well know this. At the present stage, discussions and negotiations are taking place. When this Bill goes to another place, the Government would like to ensure that it has been amended in the best possible way; and if it cannot be amended here, then per-haps it could be amended in another place.

I wonder whether the noble Baroness will be satisfied if I say to her that we are aware of the feelings which she has expressed. At the present moment the Secretary of State for Scotland is discussing the matter and thinking about how best to deal with the situation. I wonder, therefore, whether she would be content not to move her Amendment today, but to let the discussions continue. Perhaps we could let her know what the situation is before the end of the passage of the Bill.

Baroness ELLIOT of HARWOOD

In thanking the noble Lord very much for his answer, may I say that what he has suggested would be perfectly in order. However, I want to be perfectly certain that the Secretary of State is aware that at the moment there is a tremendously strong feeling about this matter in Scotland. With talk about devolution going on somewhere else, it is curious that in Scotland they should wish very strongly to be on entirely the same basis as in England. However, having regard to the assurance which has been given by the noble Lord, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 3 shall stand part of the Bill?

Baroness YOUNG

On Clause 3, I should like to say that we on this side of the House very much agree with the principle that voluntary societies should have to be approved by the Secretary of State, and that therefore there should be a national standard which would apply both to voluntary societies and to local authority associations. However, I wonder whether the Government, either under this clause or at some other more appropriate time, would consider the fact that the public will need to be assured not only that the voluntary societies reach a suitable standard—which they will have to do in order to obtain approval by the Secretary of State—but that the local authorities also reach a suitable standard.

When we were discussing this Bill on Second Reading, I raised the question of the inspection of departments and I have now had the opportunity to look at the Children Act 1948 to find out what it recommended. I believe that it was the practice of inspectors not only to inspect the premises of the department concerned, but also the premises of foster homes, adoptive homes, children's homes and the whole range of services supplied by the children's department. As I understand it, the fact is that this section of the 1948 Act was repealed by the Local Authority Social Services Act. A very different principle was introduced by that Act; namely, that local authorities shall act under the general guidance of the Secretary of State. We do not know what that guidance is. We do not know whether what will be said to one group of people is the same as what will be said to another group of people, although we would assume that to be so. At any rate, the Bill does not say so.

It seems to me that it is applying a double standard. Perhaps that is too hard a term to use, but it could be said that there are two standards of practice— that which will be laid down by the Secretary of State in the case of the voluntary societies, and a variation of practice and standard among the local authorities. I wonder, therefore, whether the Government would feel that in this matter there ought to be something much more clear-cut than just a memorandum of guidance. Apart from anything else, members of the public will not know whether that memorandum is being acted upon. We do not even know whether one is fortunate enough to live in an authority in which the work is extremely good, or whether one is simply living in an authority in which nothing disastrous appears to have happened.

These are very real points, because on reading once again the report of the inquiry into the Maria Col well case, which is always very much at the back of our minds, the very disturbing conclusion that was drawn was that although all the statutory services were involved there appeared to be absolutely no coordination of information between one service and another. Also, the kind of practice that one would have thought would be applied was missing. I think that is what is so deeply disturbing. I should be most grateful if the Government could tell us the criteria to be laid down—whether similar criteria will be laid down for local authorities and how they intend to see that they are kept. In the case of the voluntary societies, they will be subject to review every three years. What about the local authorities?

Lord WARDINGTON

While agreeing with everything which has been said so far, I wonder whether the Government could look at subsection (7) from the point of view of the adopted child. It is fair to say that if the adoption agencies are authorised by local authorities only, then they are likely to become confined and perhaps circumscribed in some of their operations. I hope that under the Secretary of State their activities will be allowed to range as far as they feel able to make a sufficient and good contribution to the adoption of children. I say this because if the adoption of children becomes too circumscribed or too confined in any one locality, one could find an adopted child meeting another adopted child who turned out to be a brother or a sister. I should like to draw that distinction. I think that the wider the authority and the wider the operations of any adoption society, the better it will be for the adopted child.

Baroness MASHAM of ILTON

May I support the noble Baroness, Lady Young, on the point she has made about local authorities, because one knows so well not only how social services departments differ throughout the country, but how they differ in what they spend on various matters. I hope, therefore, that a national inspectorate will be established.

Lord WELLS-PESTELL

I understand the point which the noble Baroness has made. It is one that would exercise my mind in similar circumstances. I think we must recognise that today things move father differently from the way in which they moved some years ago, when the noble Baroness and I were involved in children's committees and the like. The social work service of the Department of Health and Social Security is a professional group. I want to emphasise this. It is a professional group, professionally qualified, within the Department of Health and Social Security, which offers social work advice not only to the Secretary of State but to local authorities and voluntary organisations on matters relating to the personal social services.

Its task was described in a Department of Health and Social Security circular issued in 1971 as fulfilling the role envisaged by the Seebohm Committee, and that role was clearly set out, to advise local authorities to promote the achievements of aims and the maintenance of standards and to act as a two-way channel for information and consultation between central and local government. The members of the social work service are the authorised persons to act for purposes of inspection under the National Assistance Act of 1948, the Mental Health Act 1959 and the Children and Young Persons Act 1969. But I think we have to face the fact that over the years we have moved away, as a society, from what we call inspection to advice and consultation. My own experience was in the probation service, where there was—and is—an inspectorate, and at the end of every probation officer's first year the inspector went round to see whether that probation officer was a fit and proper person to carry on. Then the Department itself undertook large-scale inspections every three and five years on the work of probation officers based at a particular court.

The whole question of inspection has taken a new form. It is time consuming and costly to keep a vast army of professional social work advisers at the Department of Health and Social Security who can systematically go round the country and undertake inspections; some measure of responsibility for the standard of work must be accepted by the directors of social services in our local authority social ser-vices set-up. But we have in the Department members of the social work service strategically placed on a regional basis, where they are available and can visit local authorities and discuss with them their problems, frustrations and difficulties; where they can give on the spot advice in a situation that they can see themselves and have discussed. I would venture to suggest that this has proved far more successful in recent years than the old type of inspection which was often resented, which produced nothing but hostility and sometimes aggression. Like the noble Baroness, I have had a good deal of experience in local authorities, and I think that the attitude of people in the local authority social service towards such an arrangement today is far more welcoming than it was at the time of the inspection.

I could say a good deal about the scope and function of the social work service within the Department, but I hope that it is not necessary for me to do so in the light of what I have already said. I merely say that there has been in existence for a good number of years this professionally qualified group in the social work service giving day-to-day and week-to-week help on a regional basis to local authorities, where they are available. It may well be true that when the regional people go into a local authority and have chats and discussions they do not come away, as they did some years ago, and write an absolute "snorter" to the local authority, perhaps bitterly complaining of the standard of social work. If I may say so, in the last analysis this achieved nothing at all.

What they achieve is being able to have a face to face relationship with people working at the grass roots, with the director and with his assistant directors, discussing difficulties and problems and making suggestions as to how those difficulties and problems can be overcome. I believe that anyone who works full time in our local authority social services would say—and I say this without fear of contradiction—that the contribution that is made by the personnel of the social work service within the Department is of much more value today, when they are in the role of consultants, than it was some years ago when they were in the role of inspectors. I should like to feel that I have to some extent allayed the fears in regard to the difficulties raised by the noble Baroness and I hope what I have said will perhaps be pleasing to her, because this is the situation.

Baroness ELLIOT of HARWOOD

I should like to endorse what the noble Lord has said. I think that the social work service groups in the Department are first class. Certainly in Scotland we have a splendid one. One point is that they are so desperately short of really good social workers who are properly trained that sometimes, with all the good will in the world, a group is frustrated partly because there are not enough people working in the local authority. If, as a result of this Bill, the Department can get more training for people working in the local authority services and be able to raise the standards of all of them, whether it be voluntary societies or local authorities, I would be one of the strongest supporters.

5.26 p.m.

Baroness BACON

I am pleased that my noble friend stressed how good the social service departments are. Mention has been made this afternoon of the fact that local authority social service departments might differ—and perhaps in minor ways they do—but, on the whole, they are very good indeed. However, the difference between some voluntary adoption societies and others is very great. On the one side we have the big adoption societies, perhaps connected with some religion or organisation, who are doing a first class job of work, but I am sure that the noble Baroness realises that it has been possible in the past for very small adoption societies to be recognised. Indeed in some cases it is scarcely a society at all, but just one person registered as an adoption society.

I well remember being concerned in the closing down of one of these adoption societies which in fact consisted of one woman, who was running the adoption society in conjunction with a nursing home where unmarried girls gave birth to babies. It was suspected that money was being passed, and that undue pressure was being put on these unmarried girls who were expecting babies in order that the woman who was running the adoption society might have babies to be adopted. I am sure that the noble Baroness will realise that anything of this kind, with only one or two people running it, is much more in need of overall inspection than the social services department of a local authority. There are some very good adoption societies, but sometimes little ones come into existence which need very careful inspection.

Lord GORE-BOOTH

I have rather a lot of first-hand experience of inspection as it is now understood, both in the public service and in the private sector, so perhaps I can assure the Minister to this extent that the concept of inspection in these days is not the old fashioned one. The inspector is normally a person who goes and looks at your needs as well as your deficiencies, and if he, or she, has the right personality, the encouragement that a good inspector can give in some respects can enable him, or her, to see that standards are also up to the mark. The word "standards" may have produced hostility. I think the concept has changed. If I may say so, I do not think it should be dismissed altogether from the needs of the public social services.

5.30 p.m.

Lord HYLTON

I should like to support as strongly as I can what was said earlier by the noble Baroness, Lady Young. I am sure we all agree with what the noble Lord, Lord Wells-Pestell, said about the responsibility falling on directors of social services in local government. I would also agree with what the noble Lord said about the changing emphasis from inspection to advice in many different spheres. Nevertheless, I would put it to him that probably there will be cases where it is important for someone representing the Secretary of State to have a right of entry. This has always been the case in education, where Her Majesty's Inspectors have been able to go both to county and independent schools, and have raised standards in both. I believe I am right in saying that at the moment this applies also to the Hospital Advisory Service.

Baroness YOUNG

I should like to thank the noble Lord, Lord Wells-Pestell, for his reply. I will not argue about whether "inspection" is or is not the right word. I am quite happy to agree that it is not an acceptable word in 1975. We are looking for something else. But I have raised a very real and serious point.

If I might say so to the noble Baroness, Lady Bacon, I entirely accept that some voluntary societies will not be approved by the Secretary of State. I prefaced my remarks by saying that, just as Clause 3 says that we will have only voluntary societies which are approved and which will be subject to approval at three-year intervals, so a fairly steady eye is being kept on their activities. I do not in any way wish to denigrate local authority social service departments. They have had an exceptionally difficult task in facing not only the reorganisation created by the Seebohm Report, but also at the same time the reorganisation of local govern-ment. I think that raised one quite specific weakness that has appeared, at any rate in one local authority depart-ment—the weakness of, in the Maria Colwell case, a total lack of consultation between the relevant departments. This is not a matter for legislation, but it is a very serious defect.

One wants to be sure that, when someone goes from the Department of Health and Social Security to look at this—and I hope in the most friendly and co-operative way points this out—something will happen as a result. This is what one wants to see. In the case of a voluntary society, it will not get approval if it does not meet the standards, but no one will know whether or not the standards are being met by local authorities. Possibly an alert councillor will have gone into this, but sometimes I feel that with these very large social service departments, it is almost impossible for a councillor to keep up with the details of what is going on. Although in the noble Lord's day and in mine, every case was reported on in committee, I do not believe that any cases are reported in committee now unless there is something quite extraordinary about them. This is the point I am trying to make.

I am in no sense denigrating other voluntary societies or local authorities, but I do say that the same standard ought to apply to both. The public ought to be satisfied that the very good advice being offered is being seen to be offered, and is being seen to be carried out. How all that is done is not for me to say. I believe that under the old 1948 Children Act, children's work in this country was second to none in the world. I should like to think the same is true today, but I am not certain of this. For this reason, we need to put first the interests of the child, to create the best kind of advice. We ought to look at this. I hope the noble Lord, Lord Wells-Pestell will consider this point as the Bill proceeds through its various stages.

Lord WELLS-PESTELL

I am most grateful for all that has been said. If your Lordships will allow, I should like to comment on what the noble Baroness, Lady Elliot of Harwood, said when she was speaking about training. We have to face the fact that local authorities themselves must be encouraged to ensure that there is a very real measure of in-service training, and to ensure that there is a very real measure of further training. I hate to quote London, which can be quite an anathema to some, but in London we have the London Boroughs Training Board. All the 32 local authorities make a payment every year—and it is a very small payment—so that the Board can arrange in-service and further training for social workers in those 32 boroughs. This is something that most of us, including the noble Baroness, Lady Elliot of Harwood, would like to see expanded. It is within the power and province of the boroughs to do it.

If I may return to what was said by the noble Baroness, Lady Young, I suppose it is because of my own dislike of the word "inspection"—I have a "thing" about it, and make no apology for it— but the Local Authorities Social Services Act 1970 reconfirmed the existing powers under various enactments which basically give them powers to inspect premises, accommodation and matters relating to the elderly, the physically and mentally handicapped, and children. The power is there, but I think the approach is very different. If I may say so, this discussion has been more than worth while, because we shall be able to take note of what has been said. My right honourable friend the Secretary of State feels very strongly about the questions of competence and expertise, and having the right kind of people to do the particular jobs within the framework of the local authority. I know personally that my right honourable friend feels this. I am glad the noble Baroness, Lady Young, has made this point.

Clause 3 agreed to.

Clause 4 [Withdrawal of approval]:

On Question, Whether Clause 4 shall stand part of the Bill?

5.38 p.m.

Baroness YOUNG

I wonder whether I could raise one point with reference to when the Secretary of State withdraws his approval from a voluntary society. I doubt whether this will be included in the rules which will govern the procedures on this matter, but I think one of the rules should say that the reasons for withdrawal ought to be given in writing to the society concerned. I hope the noble and learned Lord will look at that.

The LORD CHANCELLOR

I will most certainly. One is always nervous of making a provision that a tribunal, of whatever kind, shall state the reasons for its' decision, because even though the decision might be right, often the reasons as stated prove to be abysmally wrong, whether that is done by a referee on a football ground, or anywhere else. But I take the point being made; that seems to me to be a reasonable requirement.

Baroness MACLEOD of BORVE

May I ask whether there would be any right of appeal on any decision?

The LORD CHANCELLOR

I do not think that there is any provision for a right of appeal. No; it is a final executive decision.

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

Clause 7 [Adoption Orders]:

On Question, Whether Clause 7 shall stand part of the Bill?

Baroness YOUNG

I wonder if the noble Lord can explain subsection (4). As I understand it, this clause is concerned with the making of adoption orders, and subsection (4) is a rather complicated way of legitimising a child. It has been put to me by a number of organisations that what I believe to be a re-enactment of the 1958 Act has its effect in legitimising a child. But it is a rather complicated way of doing it, particularly in the light of the fact that public opinion has moved on from that time. One suggestion that has been put to me is that it would be simpler to enact that a child adopted either by a married couple or a single person should be treated as legitimate from the date of the order, and that any assumption about the birth of the child should be avoided. I shall quite understand if the noble Lord cannot give an answer on this point immediately, but if he could write to me about it I should be glad to know his views.

Lord WELLS-PESTELL

I am most grateful to the noble Baroness for her generosity. I do not think I can at this stage give an adequate reply, so if she will allow me to do so I will write to her.

Clause 7 agreed to.

Clause 8 [Child to live with adopters before order made]:

5.42 p.m.

The LORD CHANCELLOR moved Amendment No. 4: Page 5, line 30, after "unless" insert "the child is at least twelve months old and".

The noble and learned Lord said: This is a drafting Amendment to make clear that a child must be at least 12 months old before an adoption order can be made in the circumstances of subsection (2). It is already implied in the terms of the subsection, because it is provided that during the preceding 12 months the child should have had his home with the applicants, or one of them. That presupposes that he must be at least 12 months old to my uninstructed mind, but the draftsman thinks it is a necessary precaution. I beg to move.

Baroness YOUNG

I am sure the noble and learned Lord is absolutely right about this, and I entirely agree with the Amendment. As we are on this point, I wonder whether I could raise what appears to some people to be a loophole in Clause 8. Under Clause 25, private adoptions are made illegal and I am sure this is a principle we all support. The point that has been put to me, and which seems, at least to someone like myself who is not a lawyer, to be a possibility under this clause, is that applicants could be able to adopt a child that had been fostered with them.

Under Clause 8(2), as I understand it, the applicants, the foster parents, could apply after 12 months to adopt the child, and there is nothing to say that this could not be a private placement of a fostered child. If this interpretation is correct, it is opening up a loophole which would be in contradiction of what I think we all agree with in Clause 25. I wonder whether the noble and learned Lord could look at that point.

The LORD CHANCELLOR

Most certainly. I do not have a ready answer, but I fully agree with the line of thought of the noble Baroness on this point. I will look at it.

Baroness ELLIOT of HARWOOD

On this question of time, the 13 weeks in which he had his home with the applicants or one of them", it has been put to me that it is vitally in the interest of the child for ample opportunity to be given to show that he is fully accepted by both adoptive parents, and that both are really suitable. I do not know whether the clause covers that point, but it seems to me a somewhat sensible suggestion. Perhaps the noble and learned Lord would look into it and see whether or not this point is covered.

The LORD CHANCELLOR

I will certainly look into it. It would seem to me to be a condition precedent that both parents should want the child. It is not expressly stated. May we look at it.

On Question, Amendment agreed to.

The LORD CHANCELLOR

I beg to move Amendment No. 5. This is consequential on the Amendment which I have already moved to this clause.

Amendment moved— Page 5, line 31, leave out "the child".— (The Lord Chancellor.)

On Question, Amendment agreed to. Clause 8, as amended, agreed to.

Clause 9 [Adoption by married couple]:

The LORD CHANCELLOR

I beg to move Amendment No. 6. This is a drafting Amendment which states the present law as in Section 1(2) of the Adoption Act 1958, which is repealed by the Bill. Its intention is to maintain the present position that no two people other than a married couple may adopt a child.

Amendment moved— Page 5, line 34, at end insert "but an adoption order shall not otherwise be made on the application of more than one person.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 7: Page 6, line 12, at end insert— (5) Before making an adoption order in favour of relatives of the child, the court shall consider whether the child's welfare would be better served by the making of a custodianship order, and if the court, after consideration so decides it may make a custodianship order—

1. (a) if the original application had been made by a parent and step-parent, in favour of the step-parent only, or
2. (b) if the original application had been made by relatives other than a parent and step- parent in favour of both applicants jointly ;

and the provisions of Part II of this Act (except section 33) shall have effect accordingly.

The noble Baroness said: Clause 9 is concerned with adoption by married couples, and one appreciates the position today where a number of adoptions are by married couples following upon remarriage after divorce. I think the whole of the custody Section of this Bill has been designed to meet the difficulties that arise in this case, where a child could find itself cut off from all its natural relatives in such a situation. I have been advised that subsection (4) of this clause does not provide for an application in respect of an illegitimate child. Under Clause 35 a court considering an application for adoption may make a custodianship order instead, if the court thinks it more appropriate. But that clause specifically excludes a joint application by a parent and a step-parent. If a court hearing such an application wishes to see custodianship used, the only option would be for the application to be dismissed and the step-parent advised to apply himself for custodianship, which would involve notifying the local authority again and waiting for a new court hearing.

This seems to be a rather complicated procedure. I should have thought it would be possible to deal with it at one court hearing instead of two. The difficulty about Clause 35 is that it does not, as in the case of either a step-parent or other relative, make substitution of a custodianship order a first consideration. This Amendment is designed to meet this defect. All it does is to bring the clause into line with what is stated under Clause 35 to meet what I acknowledge to be a very real difficulty. If the noble Lord does not feel that he wishes to give an answer this evening. I should be quite happy if he said that he would consider this point. I beg to move.

Lord WELLS-PESTELL

There is not a great deal I can say. It depends very largely on whether the noble Baroness wishes to press the matter at this stage. The Amendment brings couples into consideration and, as she rightly points out, it brings the clause into conflict with Clause 35 which does not bring couples in at all. It could be one person, and not necessarily a couple. That being the case, for the reason I have given, the Amendment as it stands is not consistent with Clause 35. We have tried to give effect to the Houghton Committee's recommendation that where a relative applies to adopt a child the law should require the court to consider whether, "guardianship" would be more appropriate, in all the circumstances of the case, first consideration being given to the long-term welfare of the child.

Clause 35 of the Bill enables the court on any application for an adoption order to direct that the application be treated as an application for a custodianship order, if the court is of the opinion that custodianship would be more appropriate. I should have thought that the situation envisaged in the Amendment was therefore already provided for in Clause 35. If the noble Baroness is against me on that, then I will take it back and look at it again.

Baroness YOUNG

I am very glad to have that explanation of the Amendment. I should like to consider the matter further and perhaps the noble Lord would do the same. I shall withdraw the Amendment for the present and look again at what he has said. My advice was that in fact this particular situation was not covered by Clause 35, hence I put down my Amendment. If he says that it is covered, I must look again at both of these matters and consider whether or not I should put down this Amendment on Report. In the meantime, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 9, as amended, agreed to.

Clause 10 [Adoption by one person]:

On Question, Whether Clause 10 shall stand part of the Bill?

5.53 p.m.

Lord STOW HILL

May I raise with my noble friend Lord Wells-Pestell a point that has been put to me by the Association of British Adoption Agencies. That Association has placed before me a considerable amount of material which I have studied carefully, although I cannot pretend to any great personal expertise in these matters. May I put to my noble friend, and ask for his comments, the points they have suggested should be raised on Clause 10(l)(b). That paragraph, which deals with the case of a person who is married and has atatined the age of 21, would seem to have the effect of excluding the existing right of one spouse, with the consent of the other, to adopt. I have studied the sub-section and it seems to me, unless I am mistaken, that that is indeed the effect of paragraph(b).

The Association has intimated that they fully appreciate that cases in which that situation arises are exceptional, but they go on to say that they have no reason whatever to think that in those exceptional cases the existing law is otherwise than completely satisfactory. Their view is that it would be unfortunate if this existing right were now curtailed by the wording of Clause 10(1). Of course I put the point forward on my own responsibility as one is not a spokesman in this House for other people. It seems to me that in such cases, even if they are exceptional, unless there is some good reason it would be preferable not to alter the existing law so as to bring an end to the possibility of adoption taking place. I should be grateful if my noble friend would be so good as to comment on that now.

Lord WELLS-PESTELL

I do not know whether this will meet the point raised by my noble and learned friend Lord Stow Hill. As I understand the situation, Clause 10(1) sets out the age requirements for sole adopters. Under Section 2(1) of the 1958 Act the minimum legal age for a sole adopter varies according to his relationship to the child. Where he is the natural parent there is no age limit; where he is related to the child it is 21; where he is not related it is 25. This is replaced by this subsection which sets the minimum age for sole adopters at 21, except where the applicant is the natural parent and unmarried. In such cases there is no age requirement. It requires that all married persons, including natural parents, who wish to be sole adopters, shall have attained the age of 21. This subsection restates the requirement in Section 5(4) of the 1958 Act that the court must be satisfied that the applicant is permanently separated from his spouse or that the spouse cannot be found, but changes the present law in that it does not permit adoption by one of the married couple alone where the couple are not separated and where the spouse consents to the application being made but is not a joint applicant.

The reasons for this change, which was not covered in the Houghton Committee's Report, is that Clause 9 gives such wide discretion to courts in the matter of the residence qualifications of one of the applicants that the need for one of a married couple to apply on his own is unlikely to arise, and should not be encouraged. I do not know whether that answers the noble and learned Lord, but this is my understanding of the clause to which he has made reference.

Lord STOW HILL

I am most grateful to my noble friend for what he has said. He agrees, as I understand it, that the effect of Clause 10(1) is precisely as the Association stated. My own reaction to what he has said is that if, in spite of the provisions of Clause 9 which would be operative in some cases, you have a case in which there is a married couple, one of whom has attained the age of 21 and wishes to adopt the child, he or she will be precluded from doing so by paragraphs (a) and (b) except in the limited circum-stances specified in those two paragraphs; namely, either the other spouse cannot be found or the spouses are separated and living apart, and separation is likely to be permanent. That does not cover the admittedly exceptional case where you have two people who are married, one of whom is over the age of 21 and wishes to adopt, and the other is prepared for good or bad reasons to consent to that adoption. There is now no jurisdiction to make an adoption order in that limited class of case. I do not see anything in Clause 9 which quite meets that situation. I should be most grateful if my noble friend would say that he will give some further thought to it and see whether it was desirable, in all the circumstances, to exclude that as a possible case.

Lord WELLS-PESTELL

I am obliged to my noble and learned friend Lord Stow Hill. On the face of it, it would seem to be undesirable to permit a situation of that kind. If a child is to be adopted, and two people are living together, it should be adopted with the wholehearted wish and consent of both parties. However I should like to read, if I may, what my noble and learned friend has said, so that we can give his point further consideration. Perhaps he will allow me to communicate with him on the matter.

Lord STOW HILL

I am much obliged to my noble friend for what he said.

Baroness YOUNG

When the noble Lord writes to the noble and learned Lord, Lord Stow Hill, will he write to me as well? I have had representations on the precise point which the noble and learned Lord, Lord Stow Hill, has raised. It seems to me that the crux of the argument is that Clause 10(l)(b) is taking away an existing provision, so that, although one may not, as the noble Lord, Lord Wells-Pestell, consider this to be the ideal position, the fact is that this situation exists today. It is a provision which may be removed. We do not know the evidence on which that is based. Unless there is definite evidence that it has been misused in some way, it should still be a possible option for couples.

Lord WELLS-PESTELL

May I ask the noble Baroness, Lady Young, whether she will be content to have a copy of the letter?

Baroness YOUNG

That will be satisfactory. I thank the noble Lord.

Baroness ELLIOT of HARWOOD

May I advise the noble Lord that it has been suggested to me that the effect of Clause 10 (4) would be to discriminate against the adoption of the child by its natural mother as a result of making courts record reasons for justifying the exclusion of the other parent. In Clause 7(4), a mother would have to go through the process of adopting her own child, which could be considered unnecessary. But under Clause 10(4), it seems that there might be some discrimination against the mother adopting the child, and the courts needing to record the reason might prove an embarrassment and, therefore, they might not use their rights. Can the noble Lord say whether or not that is a fact?

Lord WELLS-PESTELL

Subsection (4) provides that a court shall not make an adoption order in favour of a mother or a father alone unless there are exceptional circumstances which should be recorded. The Houghton Committee sought to discourage this type of adoption unless there were special reasons; for example, if a mother needed to cut the child's link with its putative father to protect herself from repeated and vexatious applications for custody. With great respect I would have thought that this would be a highly desirable situation.

Baroness WOOTTON of ABINGER

I am sorry that I was called away for a short while. The point I have in mind may have been raised. If it has not, perhaps I can be allowed to make it now. Under Clause 10 a single person of the age of 21 may be an adoptive parent. My attention was called to this by directors of social services, who say that this does not, under the present Act or the present law, preclude incest between a male adoptive parent and a female adopted child. Is that so? If so, should it not be put right?

Lord WELLS-PESTELL

I shall have to ask my noble friend Lady Wootton of Abinger to let me study this point. I cannot give her an answer without going into the matter.

Baroness WOOTTON of ABINGER

I thank my noble friend. I should be glad if he would go into the matter.

Clause 10 agreed to.

Clause 11 [Parental agreement]:

6.5 p.m.

Viscount ST. DAVIDS moved Amendment No. 8: Page 7, line 30, at end insert— (g) has been guilty of an offence involv-ing conduct described in paragraphs (c) to (f) of this subsection towards another child in such a way as to make it appear likely that he would treat the child in the same manner.

The noble Viscount said: In moving this Amendment I wish to apologise for not having been in my place on Second Reading. I was due to speak, but unfunately was in bed at the time running a high temperature. The nearest I got to this House was in looking at a good instalment of "Z Cars" the night before which, most appropriately, dealt with the subject of battered babies. The case was made in that instalment of "Z Cars" (and we all know it to be true) that a child batterer, or child neglecter, usually does not only do it once but goes on doing it. Indeed, very often in their younger days they were battered and neglected themselves. What is more, we all know that often, having had one child and having battered or neglected it, they continue to batter a second and a third. Some of these families have rather low-mentality parents. There is a whole string of them.

Under the clause as it stands, there are many reasons why parents can be disqualified from agreeing; for instance, if they have, for one reason or another, neglected, abandoned, persistently ill-treated and so on, the child in question. Is it necessary that the child was battered, neglected or abandoned? If these parents have a string of children, have we to wait while they batter or neglect each child in turn before these various subsections take effect? Have we to say "He has battered little Nellie and we have taken her away. We have now to wait until he has sufficiently battered little Willie?" Cannot we say that having battered little Nellie we consider that he is extremely likely to batter little Willie and that therefore this should be added to the list of reasons why his con-sent should not be required for the adoption of the subsequent child? This is a simple point.

If there is a string of children like that, must we wait until each one is battered or neglected in turn, or can a court at some point say, "We consider that this is an unfit parent", and subsequent children can be considered by the court with-out the parents consent? If this can be done, in many cases it would speed up action. It would make the whole process much quicker. There is one thing which I am keen on, which will come up in my subsequent Amendments to the Bill; that is, that the whole business should be speeded up. A child's life is not long, and the sooner one can get it into secure circumstances in any case of neglect, bashing or anything else, the better. I beg to move.

Lord SANDYS

I should like at this stage to take the opportunity of apologising to the House that I also was not in my place—like the noble Viscount, Lord St. Davids—on Second Reading. I wish to support him on this Amendment. It seems to me there is a notable omission, in that there is nothing in the Bill as drafted (and I am advised on this point) about compulsory notification of child abuse; that is, children who have been seriously ill-treated and who come in contact, naturally, with the health service, and who are admitted to hospital, probably to a casualty ward, with one or more injuries.

As I understand it, it is not a notifiable offence at the moment and it is one of the problems in dealing with the battered or injured child that there is no special provision in existing law. In the early part of our discussions this afternoon, I was very interested to hear the noble Baroness, Lady Fisher of Rednal, draw your Lordships' attention to the complexity of the law. Apparently, there are no less than 28 Statutes on the Statute Book in regard to adoption and, as I think the noble Lord, Lord Byers, particularly mentioned, Parliament has not been particularly clever about this. I believe that we should all pay regard to that, but it is the complexity in co-ordination which we ought to remedy in the present Bill and I hope that the noble Lord, Lord Wells-Pestell, will be able to give us some advice in regard to compulsory notification of child abuse.

Baroness MASHAM of ILTON

I should like to add that this is the very point about which there is greatest concern throughout the country. I really do not believe that people are worried because children are being looked after by loving foster mothers of 40 and that these people are too old. What disturbs people is the risk of mothers who have murdered or who have battered and may batter again being allowed to go back to look after their other children. There-fore I should also like to support the noble Viscount on this point.

6.12 p.m.

Lord WELLS-PESTELL

I think we are tending to tread on very dangerous ground here. The Amendment contains the words: to make it appear likely that he would treat the child in the same manner. I do not know how one would establish that. There is just as much evidence—in fact, there is a great deal more—that a baby batterer may batter one child and none of the others in his family. Only last week I went to a private showing of a film of a real situation in which the mother and father had three children and the mother was devoted to all three and the father was devoted to two. For various reasons which were mainly psychological, there was a situation between the father and the third child which led to that child suffering physical violence. But there was no suggestion that the other two children were in danger or would ever be so. I think that this is a very difficult situation. From a legal point of view, it could raise very considerable difficulties to ask somebody to make a judgment that it would appear likely that the child would be treated in the same manner. I do not know how one would do that.

With regard to the compulsory notification by people who may come in touch with such situations, while it might, on the face of it, seem highly desirable, as the noble Lord, Lord Sandys, may know, already, a number of people have been reported to the police and other authorities for having been guilty of battering a child and it has been found that the cause was something entirely different. These are situations which one would like to tie up, but I do not know how one could do so. I do not think that compulsory notification would help, in a sense, though it might bring to light a certain number of cases.

However, the purpose of the Amendment, as I understand it, is to enable a court to dispense with parental consent to adoption where the parent whose con-sent is required has been convicted of ill-treating another child and appears likely to treat the child on whose behalf the application is being made in the same way. There are, I think, two further objections to this which I feel your Lordships may well wish to consider before arriving at a decision. First, it would be a major innovation in the law of adoption to make a question of parental consent depend upon that parent's conduct in relation to a child other than the one before the court. This has never been done before; it would be a major innovation and, I think, open to some very real criticism. Secondly, adoption is final and irrevocable, and it must be questionable whether it is right—I want to emphasise this, and I know that the noble Viscount will not mind my doing so—to cut a parent's relationship with his own child solely on the basis of a likelihood, particularly one which would present problems of proof in the court. I do not see how we could overcome that problem satisfactorily, since to a large extent it must be a matter of conjecture.

In any event, it seems that, in appropriate cases, the noble Viscount's objective could be achieved by other means. If the child is still living with the convicted parent, there may be grounds for applying for a care order under the Children and Young Persons Act 1969, where a test very like that advocated by the noble Viscount is applied. This seems to me to be a much more desirable way of acting. If the child is then fostered, in due course possibilities under other provisions of the Bill will arise, as, for example, custodianship, leading perhaps to adoption. The main difficulty about the noble Viscount's Amendment is that it is not appropriate to apply this particular criterion for care to adoption cases simply because it does not relate to the child concerned and, I think, may be regarded as being rather hypothetical.

I would with very great respect suggest that the anxiety which is in the noble Viscount's mind, and probably in the minds of most of your Lordships, could be met by applying for a care order under the Children and Young Persons Act 1969. I hope that I shall have satisfied the noble Viscount and that he will feel able not to press the Amendment.

Lord PLATT

Before the noble Viscount signifies whether or not he intends to withdraw the Amendment, I suggest that if the main objection of the noble Lord, Lord Wells-Pestell, is to the word-in, "in such a way as to make it appear likely …" we might end the paragraph after the words, "towards another child", and leave it at that.

Viscount ST. DAVIDS

I accept that my wording may not be quite as it should be. It was an unaided effort at "legalese" and I am no lawyer. Nevertheless, it seems to me to be a quick way of getting out of a type of situation which certainly arises. I am aware that the noble Lord, Lord Wells-Pestell, knows a great deal about this and that he is perfectly right in saying that there are many families in which, for some unusual reasons, there is one child who is battered and neglected, while the rest of the family are beautifully looked after. One has often heard of cases like that, but there are also cases in which it is the other way round, as I think the noble Lord would agree. These are cases in which each child in turn is neglected or battered.

I should have thought that in a case like that this proposal would be valuable. There are other ways of doing it and I know that they have some advantages. Nevertheless, I should have thought that this, as a way of doing it, would be the quickest possible way and would have an advantage of its own which it was worth having in the Bill; but that is of course a matter of opinion. However, I have always been in favour of speed. Children, especially when they are small, learn so quickly and a battered child learns that he or she is a battered child very much quicker than the court does. This is impressed upon the mind of the child, often permanently, for the rest of its life. I should have liked to have this proposal in the Bill. I know that it has a certain originality. The noble Lord is quite right. I do not think that a provision as regards another child has entered into any other legislation, but that is no reason why it should not be in the Bill.

Lord WELLS-PESTELL

Would the noble Viscount be good enough to give way? It is obvious that he feels strongly about this matter. I think he will accept that there would be real legal difficulties in enforcing what he proposes. I wonder whether he would consider withdrawing this Amendment and perhaps taking advice. There are many very competent lawyers in your Lordships' House, who might well be able to advise the noble Viscount as to whether what he wants to do can be done without creating difficulties. He would be the last person to want to see something in the Bill that will make for difficulties, and indeed that is the last thing any of us would want. I say that as a suggestion for the noble Viscount to accept or not as he thinks fit.

Viscount ST. DAVIDS

I happily accept that suggestion. I was quite aware that my rather ramshackle Amendment might not stand up to expert investigation, and I should certainly be very happy to withdraw it and see what can be done about it later, if anybody else wishes me to carry it further. In the meantime, I would happily beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

6.23 p.m.

Baroness FISHER of REDNAL moved Amendment 8A: Page 7, line 34, leave out from "apply" to end of line 36 and insert "in cases where there have been extenuating circumstances of an exceptional nature.

The noble Baroness said: I appreciate that this Amendment might not be legally well framed. I am no lawyer—far from it—but I am trying in this Amendment to protect the mother, generally, although it may happen to be the father, who is brought before the courts and charged with cruelty to a child in circumstances in which it would be a first and last instance. It may be a case in which something has happened to the parent at a given time. It might be that it would be very difficult to give a reason why the parent had performed the act of cruelty. The parent suffers the penalty of a court appearance, but the court proves that it has a certain amount of sympathy with the parent, because there were some special extenuating circumstances, the cruelty to the child was quite exceptional and was quite out of keeping with the parent's character.

I should like to be able to safeguard that type of parent who perhaps acts in a way in which, like lots of other parents, he may do certain things for which he cannot give a reason. As one says, "Something comes over one", and for this reason I should like to give protection to this kind of parent who is a good parent but, for one reason or another, the mind gives way and ill-treatment takes place. But my intention is not to protect the parent who constantly ill-treats his child.

Lord WELLS-PESTELL

I find myself in much the same position with regard to this Amendment as I did in respect of the one which preceded it. If I understand the situation correctly, this Amendment would modify the new ground for dispensing with parental consent. Under Clause 11(2)(f) of the Bill, serious ill-treatment is a ground for dispensation only if—and I want to emphasise this— the court finds that the, … rehabilitation of the child within the household of the parent or guardian is unlikely. Nevertheless, the noble Baroness proposes that a single act of serious ill-treatment should be a ground for dispensing with a consent, unless there had been extenuating circumstances of an exceptional nature. That would greatly increase the scope of this ground for dispensing with consent, and would change it entirely from that proposed by the Houghton Committee—which went into the matter very carefully and which has hitherto been accepted by those consulted by the Government, and there has been a great deal of consultation by the Government on this matter.

It seems hard that a parent should be deprived of his parental rights for ever, merely because of a single act of serious ill-treatment, when the child could be satisfactorily restored to the family. In addition, the test proposed by the noble Baroness would present problems for the courts, because it provides no specific guidance on the test that they should apply in dealing with sensitive and difficult cases. On this basis I cannot, with the greatest possible respect, advise the Committee to accept the Amendment, because I think of the many difficulties which would stem from it, and which we want to avoid.

Baroness FISHER of REDNAL

In view of what my noble friend said, I accept his guidance and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 11 shall stand part of the Bill?

Lord WIGODER

May I raise one other matter on Clause 11 in its relation-ship to Clauses 12 and 35? Clauses 11 and 12 very properly provide that before an adoption order can be made the parent has fully to understand all that is involved. Under Clause 35, on an application for an adoption order, it is possible in certain circumstances, without reference back to the parent, for an order to be made for custodianship. It is therefore important that where that may conceivably happen there is explained to the parent not only what is involved in the making of an adoption order, but the fact that the alternative may be available in certain circumstances and what will be involved in that. I doubt whether it is necessary to legislate for this. It may well be possible to provide by administrative direction that the full explanation is given to the parent in appropriate circumstances, and I venture to draw this to the attention of the noble Lord the Minister.

Lord WELLS-PESTELL

I am most grateful to the noble Lord. May I say again, without being presumptuous, that it seems to be a valid point and perhaps we could look at it and say how best we can deal with it.

Clause 11 agreed to.

6.29 p.m.

Lord HYLTON moved Amendment No. 9: After Clause 11 insert the following new clause:

Non-disclosure of identity of applicant for adoption order

. The consent of any person (not being the consent of the infant) to the making of an adoption order in pursuance of an application may be given either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is proposed to be brought up without disclosing the identity of the applicant for the order to the person giving such consent.

The noble Lord said: I beg to move the Amendment standing in my name and in that of my noble friends. The purpose of this Amendment is to restore the right of a parent, usually the mother, to specify the religious persuasion in which her child is to be brought up when adopted. As regards the drafting, it may be better that this Amendment should go in Clause 11 rather than after it, and I will entirely accept whatever your Lordships may wish on that point. The wording of the Amendment follows the Adoption Act 1958 Section 4(2) and therefore the effect of it is, I believe, to restore the status quo. It may be worth noting that the words "religious persuasion" are wide enough to cover many religious views including those of Humanists.

I come now to the reasons why in my view the Amendment is necessary. The Bill as drafted deprives parents of existing rights. The Bill follows the recommendations of the Houghton Committee, recommendations which I believe could only have been made in a demoralised age when many think that the physical well-being of persons is more important than their spiritual welfare. Those who think like that are entitled to do so as regards themselves, but I suggest that they should be hesitant to impose that line on the consciences of others. I should like to look briefly at the reasons which the Houghton Committee gave for making their recommendations. They said, first, that adoption is the complete severance of legal relationship between parents and child and that it is therefore anomalous that the parents should appear to retain control over this one aspect of the child's future—this one aspect being, of course, the religious upbringing. This reason is, I think, offensive not only to Christians but to members of other traditional religions and possibly also to Humanists. The one thing the parents may wish to be assured about before agreeing to a complete severance is the matter of religious upbringing.

The Committee, secondly, said that the conditions are unenforceable and are, therefore, bad law. I accept the point of unenforceability; and one must take into account the possibility that the adopters, after a few years, may change their religion and, no doubt, will then bring up the child in the new religion, which was not their original one. But what evidence is there in fact that the law, by the way it currently stands, has been brought into disrepute? The third reason of the Houghton Committee was that there may be a shortage of suitable adopters of the right religion. That is the one to which I would give most weight. I should not give equal weight to the further reason in their third consideration that there may be considerable delay in placement because of the time required to find suitable adopters of the right religion. I think that a month or two in the normal situation—not the exceptional situation—of adoption would be justified on these grounds.

The Houghton Committee went on to propose that the adoption agencies should be required to ascertain whether the mother has any wishes in the matter of religious upbringing. I concede that this point may be covered in regulations which will be published at some time in the future; but we have not got those regulations now. I urge the importance and the necessity of writing something into the Bill so that people know where they are, given that we have not yet got the regulations. I beg to move.

Baroness MASHAM of ILTON

I should like wholeheartedly to support this Amendment. It is a permissive Amendment and I consider that it is a useful guideline for otherwise very experienced social workers who come into contact with mothers or expectant mothers but who, themselves, may have no religious views. With such a guideline they may be enabled to pass on to different adoption societies those mothers who follow a particular religion and who want their child brought up in that religion. It is possible that some local authorities, particularly some small authorities in the North of England, may not have voluntary religious adoption societies in their area and may have to pass on applicants to different authorities many miles away. Also I share the worry of the right reverend Prelate about the religions which hold strong views about medical treatment—views which, of course, affect all children and not merely the adopted ones who represent a small minority.

I feel that perhaps it is now more important than it was in 1958 to have this written into the present Bill because it is now legally permissible for a woman to have an abortion. It may be that some expectant mothers have a religious conviction or that their Church tells them they should not have their baby aborted. Therefore they should have the right to state what religion their baby is to be brought up in. It is a matter of freedom of choice. I know that some mothers make a great personal sacrifice in putting up their children for adoption. This is something that I said during the Second Reading debate. It may be their ultimate hope some day to be re-united with their child in Heaven. Certainly this is the feeling of some Roman Catholics. There are some girls who come to England, perhaps from Ireland, and who, unmarried, have a baby, but cannot go home to their parents because of the stigma that still attaches to such happenings. To many people living in so-called unsophisticated areas this is important. So I recommend this Amendment to your Lordships. It is permissive and could be helpful.

Lord GORE-BOOTH

While this discussion has been going on, because I am interested in religion, I have been trying hard to think of the right thing to do. It would seem to me that there should be some (shall we say?) administrative possibility of asking the mother whether she has a particular religious preference and of the administrative machine so far as possible trying to meet that preference. There are different views about the relationship between religion and other aspects of life. To me, this approach would seem to be reasonable. On the other hand, it seems difficult to entitle somebody in this position to make a statement which is then held to be legally enforceable; and on that point the Houghton Committee seem to have reason on their side. In commenting on this, can the Minister give us some idea of the extent to which the mother's desire can be met, as far as possible by administrative action or by regulation, if it were not accommodated in the Bill— something, I think, which it will be difficult to do.

Baroness MACLEOD of BORVE

I sit in court roughly three times a month, and I should like to refer to the great difficulty in granting adoption orders and making the law in court. I am very interested in this Amendment and would wholeheartedly endorse it. It is very difficult for those of us sitting on the magistrates' bench in the juvenile court to make quite certain that the child who is to be adopted by people whom we do not know but who are known to us through the guardian ad litem's report is likely to be brought up in the religious persuasion that has been specified by the mother. It is very difficult indeed for us, and I hope that somehow your Lordships will make it quite clear in this Bill that not only in the magistrates' courts but in the higher courts as well the religious persuasion is noted and taken note of by everyone concerned, and certainly the social services.

6.41 p.m.

Lord SANDYS

I support this Amendment. I believe that there is a real omission from the Bill, as the mover, my noble friend Lord Hylton, pointed out, and we ought to pay due regard to the fact that it is a particularly sensitive and delicate area. I hope that the noble and learned Lord the Lord Chancellor will accept the fact that this is an area which especially bears upon a particular case and I hope I will be in order if I quote the report of the Committee of Inquiry into the care and supervision provided in relation to Maria Colwell, because this was a turning point in the situation. This demonstrates particularly what a difficult area it is.

I am not saying that I can cast my personal opinion about it, but I should like to draw noble Lords' attention to the especially sensitive area that it occupies. I quote from paragraph 263, on page 93 of the report: In July 1967, Mrs. Kepple struck a symbolic blow for Maria by refusing to allow her christening which had been arranged by Mr. and Mrs. Cooper. Ostensibly her objection was on religious grounds. By this time, she was associating with Mr. Kepple and claimed she wanted Maria brought up a Catholic. It seems likely, however, that for the Coopers to have Maria christened was intolerable for Mrs. Kepple since it would imply she had relinquished her parental rights. This appears to occupy a very significant point in this particularly tragic case, and I feel that in this country we have a very special responsibility to all those immigrants who have come to these shores. I need not list the particularly large number of religious faiths represented among us by both refugees and immigrants, but I feel they occupy such a special position that due regard should be paid to it in this Bill.

Lord PANNELL

I would refer only to the great difficulty that agnostics have now in adopting a child. This religious barrier is always put up. If anybody professes any religious faith at all and there happens to be an agnostic concerned in the matter, you usually find that the courts come heavily down against him because of that. But in view of all that has been said about the condition and the welfare of the child being paramount, I do not see how you can interpolate this clause into the Bill.

Lady KINLOSS

I support this Amendment. I am a Roman Catholic but I do not support any sectarian cause. I am in full sympathy with what other supporters of the Amendment have already said and I would add only one point which has not so far been mentioned. The Bill takes immense pains to ensure that the temporal or secular rights and duties of natural parents are transferred to adoptive parents. If we are taking elaborate care to ensure that the rights and duties transferred are carried out, it is illogical not to make similar provision for the transfer of the spiritual duties of those parents who are constrained through circumstances to place a child in adoption; and even, by omission of the former religious clauses, to extinguish those rights and duties so far as they affect religion.

Baroness MASHAM of ILTON

May I ask the noble Lord, Lord Wells-Pestell, whether there is not an agnostic adoption society? This should not be a problem because many people do not state what religion they want their children brought up in and there are plenty of agnostics, I am sure, who wish to adopt them. So that should not enter into the argument. The problem arises for the people who want their children brought up in a religion of their choice.

The Earl of PERTH

I have listened to the points made in relation to this Amendment and I must confess that I am very worried when I hear that, as the Bill stands now, it is depriving us of an existing right; that something we possess today is being taken away. There has to be extremely good reason for that to happen, and from what I have heard it seems to me that there is strong reason the other way. I know there are many people who are considering offering their children for adoption who feel that the question of the religion they are to receive is the most important factor to take into account before they take the decision. If that is the case, I very much hope that the new clause as moved will be accepted.

Lord WELLS-PESTELL

I want to make it perfectly clear that the Government have nothing against the principle of this Amendment. It is a question, if I may say so without giving offence, of taking a realistic view of what the House is being asked to do. The noble Earl, Lord Perth, says that we are being deprived of an existing right. It is an existing right which, let us be perfectly frank, cannot be enforced. What is the point of having a right that cannot be enforced? We really ought not to put into a Bill something that cannot be enforced.

Lord HYLTON

Would the noble Lord be kind enough to give way? Could be tell the House whether there have been any instances ever recorded of a parent trying to enforce this right and not succeeding? So far as I know, in the past parents have specified, and in the great majority of cases their wishes have been followed up.

Lord WELLS-PESTELL

I could, I suppose, ask the noble Lord what evidence there is that adopters have carried out their promises. I think the answer is that he does not know, any more than I do, whether they have. The real answer is to have a system whereby —and I think the noble Lord, Lord Gore-Booth, touched on it—we are able to do this in some administrative way rather than to put it into a Bill, which will, one hopes, become an Act. It will be there and you can do nothing about it one way or the other. I should have thought that that is what we ought to be considering. In the last analysis, people giving up a child for adoption will tend to go in the future where they have gone over many years in the past; that is, to an agency which represents their particular religious point of view, if they hold a specific religious point of view.

I am rather surprised that noble Lords feel it necessary in this matter to try to include it in the Bill itself. I do not want to go over the ground of the Houghton Committee's recommendations. The noble Lord, Lord Hylton, has covered it, and very fairly and frankly if I may say so, not keeping anything back; but that is what one would expect him to do. What I find interesting is that contrary to expectations, there was no objection to this on the Houghton Committee, yet that Committee had as a member of it a well-known canon of the Roman Catholic Church who was the administrator of the Crusade of Rescue, which is a large Roman Catholic adoption society. In the past I have worked with—not for—that society and it has probably done more than any other adoption society in the field. There was no objection from him at all.

Rather than put something into a Bill which, if it cannot be enforced, is meaningless and really only pays lip service to this aspect, the best course to take is to do what the Government envisage doing—and I can say this categorically—and make provision in the Regulations that agencies should, so far as possible, have regard to the wishes of parents in this respect when placing children for adoption. It is still open to people who want their child adopted into a particular way of life or religion to go to the agency that serves their faith. There is nothing to stop them doing that. One hopes that people assisting in these matters will encourage them to do so. With great respect, I think that this is the best way of dealing with this matter and it is the Government's intention to make the provision in the regulations that agencies should have regard to the wishes of the parent or parents.

Baroness YOUNG

Before we conclude this debate, I should like to thank the noble Lord, Lord Wells-Pestell, for his remarks. I hope he will appreciate that this is a matter of great concern to all sections of the Committee. I can say only that I have had more representations made on this subject than on any other. I believe this is something widely felt by members of the public and by those concerned with this work. He said that we should take a realistic view and I hope we are all doing so, because we are dealing with such important issues in this Bill. But I think that the spiritual well-being of a child should be considered, and if one does not believe that should be considered as well. Looking at this Amendment which, as the noble Lord will appreciate, has been taken directly from the 1958 Adoption Act which is at present in force, but which is to be repealed by this Bill, when he says that it is not enforceable it is of course possible at least to see that the parents can say that they will bring up the child in a certain religion. He is saying that you cannot possibly say that for ever after the parents will do what they say they are going to do. But that applies to the whole of the adoption process. When you give a child for adoption, you do not know whether any of the promises the parents make are going to be kept. That is your act of faith.

Furthermore, when the noble Lord says, "We will deal with this by Regulations", I am sure he means he will do his best to write this into the Regulations. When an adoption is being arranged, we do not know that the person who is to make the arrangements will remember all the details of the Regulations. After all, none of us at the moment has seen them. We do not even know whether they are going to be there. I believe that if a provision like this is put into a Bill it is something that is readily understood and is much more likely to be carried out than if it is in Regulations. I am not in any way trying to be difficult over this matter, but I should like to express the strong feelings that have been put to me on this subject by Catholics and by those representing immigrant organisations who feel equally strongly. I believe it applies to Humanists as well. For these reasons, I hope that even if the Government feel they cannot accept this Amendment as it is, because it is inappropriate to have it taken from the 1958 Act, they will say that they will come back with an Amendment of their own which will meet this point.

Lord HYLTON

Can the noble Lord tell us when the Regulations will be published and whether we can see a draft before the Report stage?

Viscount BARRINGTON

Speaking as a non-Catholic, I support what the noble Baroness. Lady Young, has said. It may be that this Amendment is unenforceable, it may be that it will not do as much good as it is intended to do, but I cannot see that it will do any harm.

Lord WARDINGTON

May I speak from the point of view of an adoptive father? I am sure I would be unhappy if I thought I was not carrying out the wishes of the natural parent. I am not a Roman Catholic—my father was a Quaker. I am sure it is important for the child that the adoptive parent should know to what religion the child belonged, because it will help and will not create any bigotry. If you accept a child with a specific religion, then you accept that religion and it does not interfere in the future. If you subsequently have second thoughts, it can affect and react against the child.

Viscount ST. DAVIDS

I am a member of the Church of England. I am not a rubber stamp member; I hold strongly to its beliefs. I feel great respect for other people who hold firmly to other religions, including those who, although they have firm ideas, are unfortunately unable to name their God. If I were putting a child for adoption, I would take him to an adoption society of my belief. As a right reverend Prelate said the other day, if it came to a matter of the happiness of the child, and if the happiness of the child could be better obtained by putting him in a family which possibly did not have the same belief as my own, then if I was giving the child for adoption—in other words, abandoning my parental rights—I would consent to that. After listening to the noble Lord, Lord Wells-Pestell, I am in strong agreement with what he said, and if the Committee takes this Amendment to a Division I will follow him through the Lobby.

Lord SEGAL

I am wholly in sympathy with the spirit of this Amendment. Many years ago I acted, in a voluntary capacity, as medical officer for the Catholic Crusade of Rescue Homes. I know only too well the amount of care they gave, especially to children born of Catholic mothers who happened to find themselves alone in this country. Rather than include this provision in the text of the Bill, the Government ought to take due note of the existence of the various denominational adoption societies and, if necessary, compile a full list which could be brought to the notice of anyone likely to issue an adoption order. Wherever possible, these religious factors ought to be given the utmost consideration.

Lord DRUMALBYN

I wonder whether, for a moment, this aspect could be looked at from the point of view of the adopting parents. I think most adopting parents would be disinclined—and would be right to be disinclined—to adopt a child to be brought up in a faith other than their own. So what we are really saying here is that if a wish is expressed by the parent that the child should be brought up in a certain faith, the child should be placed only with adoptive parents who have that faith. I am sure that this is right. I say that merely in explanation, because I agree with the noble Lord, Lord Wells-Pestell, that the practical side of this is of the greatest importance. What I am sure would not be for the spiritual, or any other, welfare of the child is that he or she should be brought up in a faith which is different from that of their adoptive parents.

Secondly, regarding the structure of the Bill, I wonder whether this Amendment would do in every case what its mover, my noble friend Lord Hylton, has said, because it seems to bite only at the time of adoption and not when the child is being made free for adoption. Perhaps I might quote from Clause 11(1): An adoption order shall not be made unless—

1. (a) the child is free for adoption; or
2. (b)… the court is satisfied that—
1. (i) he freely, and with full understanding of what is involved …".

So I rather doubt whether those moving this Amendment are actually going as far as they think they are. Once a child is made free for adoption it seems that the consent of a parent to a particular adoption does not operate. Therefore, however much a parent may have expressed a wish at the time when the child is made free for adoption that the child should be brought up in a certain faith, it would seem, as the Bill is drafted, very difficult to operate that later.

7.2 p.m.

Lord WELLS-PESTELL

I wish I could undertake to produce before Report stage a possible Regulation worded in the way that I know it will be worded, but I cannot give that undertaking and it would not be fair to do so. Discussions are going on at the present time with various bodies and, like all discussions, they sometimes take an interminable time. I do not want to repeat myself but I cannot really see how putting something into the Act is going to have more force than issuing a Regulation. It depends on who is doing the adoption as to whether they choose to ignore what is in the Act or in the Regulation. It depends on the individual, and I should have thought that if it is going to be in the Regulations, it may stand a far greater chance of impinging itself upon the individual than if it were in an Act of Parliament. I would only add that I personally do not like seeing things in an Act which have not the force of law. Therefore, I give the Committee the assurance that the Government are envisaging making provision in Regulations that agencies should, as far as possible, have regard to the wishes of parents as to the religion in which they want their child brought up after adoption. I hope that will be acceptable to your Lordships as a whole.

Baroness MASHAM of ILTON

Before the noble Lord sits down, might I just ask what assurance he can give the Committee that a woman who goes to her social services department will be given the name of an adoption society of her choice. This is the whole point of the assurance. The social worker may be overworked and overstressed—the noble Lord knows as well as any of us how overworked and overstressed social service departments are—and if it is written into the legislation it will give a guideline to those people. It is fine if the girl who is to be a mother can go to the adoption society of her choice, but she may not know of it. There are some areas, such as mine, which do not contain adoption societies, and people have to go outside their own local authority. This is what worries me.

Lord WELLS-PESTELL

In reply to the noble Baroness, I think that the guideline she is talking about is what I am referring to as a Regulation. This would probably have far more effect than the Act itself. Of course, it depends on the good will of the individual social worker but we really must not get into the habit, as we so often do when discussing social workers here, of believing that they are so overworked that they are not doing their job properly. This is not true. They are overworked, but there are a great many of your Lordships who are also overworked, and I like to think that they are doing their job properly. With great respect, I think that we must regard professional social workers, by virtue of their professional training and all that goes into their philosophy of social work and case work, as having sufficient know- ledge and experience to play the game in these matters.

The EARL of PERTH

Before the noble Lord sits down, I wonder whether he can help me on one question of fact. If something is in an Act, it cannot be changed without the approval of Parliament. If something is in a Regulation it can be changed without the approval of Parliament: is that so?

Lord WELLS-PESTELL

It depends on the nature of the Regulation as to whether it would have to be approved or not. I think that is the situation. Once the Regulation has been laid and approved, then it is just as binding.

The EARL of PERTH

If I understand correctly what the noble Lord is saying, a Regulation can be put forward for the approval of Parliament and, once approved in relation to this, it cannot be changed without coming back to Parliament.

Lord WELLS-PESTELL

I am assuming that the Regulation I am talking about will be dealt with in that particular way.

The EARL of PERTH

May I have an assurance that such would be the case in respect of this particular clause which is causing so much anxiety?

Viscount COLVILLE of CULROSS

May I intervene for one moment on this, because I believe that the noble Earl, Lord Perth, ought to be fully aware of the situation. What the noble Lord, Lord Wells-Pestell, said is perfectly right—that the Regulation in the first place, whether it is subject to positive or negative procedure, will come to both Houses of Parliament. However, what is equally important is to realise that it is likely to be a large body of rules, of which this particular one will be only a small part. There is no power to amend Regulations when they come, and therefore one has to take them as a whole or throw them out as a whole. If it is desired to amend on this particular point, it cannot be done in practice without throwing out the whole of the Regulations—which is unheard of. Therefore, the safeguard of bringing this back to Parliament at the Regulation stage, or of trying to bring another Regulation to change it, is not really quite as substantial as might previously have been thought. I do not in any way accuse the noble Lord, Lord Wells-Pestell, of misleading us; but I think we must realise that there is this inflexibility in the statutory instrument field.

Lord WELLS-PESTELL

What I am saying to the Committee is that, having regard to the strength of feeling about this, and as the Government long before today had intended making provisions along the lines we have been discussing in the Bill and were considering making provisions in a Regulation, I should have thought that the Regulation would in itself have met the wishes of those who have spoken in favour of the Amendment.

Baroness YOUNG

Would the noble Lord answer one question from me? We all appreciate his offer to get the particular Regulation before us before the Bill leaves this Chamber. We are grateful for that, and appreciate his interest and sincerity on this point; but is it not a fact that when Regulations are made those working them have to have only due regard to them, whereas, of course, the Amendment proposed by my noble friend Lord Hylton confers an absolute duty to consider the parental interest in this matter?

Lord WELLS-PESTELL

I think that the noble Baroness has misunderstood me. I thought I made it clear to your Lordships that there was no possibility of presenting the Regulation in time for Report stage, when of course it might have been considered. This means that nothing will be able to be put before this House during the passage of the Bill because of the difficulty of the protracted negotiations.

Lord DRUMALBYN

If the noble Lord were to do it this way, surely he would need a provision in the Bill to make it possible to make regulations for this purpose.

Lord WELLS-PESTELL

I understand that there are general regulatory powers in the Bill.

Lord HYLTON

I am most grateful to noble Lords on all sides of the Committee who have spoken on this Amendment and I am encouraged by the degree of support they have expressed and by their aliveness and sensitivity to this question. But the only crumb of comfort I can draw from the noble Lord, Lord Wells-Pestell, is that the Government are not against the Amendment on principle. Nevertheless, the Government seem to be asking the Committee to rely on an unpublished regulation. I was carried along by my noble friend Lady Macleod of Borve who told us from her experience how the courts wished to have positive guidance in the Bill when it becomes an Act. My noble friend, Lord Perth made a similar point. My noble friend Lord Colville of Culross made a technical, legal point about the regulations being embedded in a mass of other extraneous matter.

Would the noble Lord, Lord Wells-Pestell, be willing to come back to the House at Report stage with a new and different Amendment which may take account of the point that was made about the freeing of children for adoption and which I hope would follow the lines I suggested on Second Reading—I have the words before me, but I do not think I should weary the Committee by reading them out. Is the noble Lord open to that kind of suggestion?

Lord WELLS-PESTELL

If the Committee wish me to, I am obliged to consult my right honourable friend the Secretary of State in this matter; and this I will do most faithfully. I do not know what the outcome would be, but I will certainly do so. I would hope perhaps to be able to tell the noble Lord whether there is any possibility of the Government's putting down a proposal that might meet the situation before Report stage, so that if he was not satisfied he would have Report stage at which to do something about an Amendment of his own. This I am quite prepared to do if the noble Lord wishes it.

The Earl of PERTH

I wonder whether we could not do it the other way; namely, to accept the Amendment before us as it stands, it being understood that if the Government find at Report stage they have something which is more effective then they would introduce it at that time, and clearly everybody would be happy. Putting the onus the other way is not a satisfactory situation. I, for one, would feel much inclined in the situation as it is to suggest to the noble Lord, Lord Hylton, that he presses for a Division for the reason I have given; that is, that it seems that the onus is one which should not be on us at this stage, but upon the Government.

Lord WELLS-PESTELL

I cannot accept the Amendment and it would not be right for me to do so. The Committee must make up their own mind on this matter.

Lord GEORGE-BROWN

May I say that in that case, I for one, will make up my own mind. I hope that the noble Lord, Lord Hylton, will not withdraw his opposition and I shall certainly go into the Lobby with him and thereby help the Government at some point to make up their mind.

Lord WELLS-PESTELL

I do not know whether the Committee have had

Resolved in the affirmative and Amend-ment agreed to accordingly.

Clause 12 [Freeing child for adoption] :

7.20 p.m.

Baroness YOUNG moved Amendment No. 10: Page 8, line 7, leave out subsection (2).

The noble Baroness said: It may be for the convenience of the Committee if I speak not only to Amendment No. 10 the pleasure of the company of the noble Lord, Lord George-Brown, during the whole time we have been discussing this Amendment.

Lord HYLTON

Regardless of when the noble Lord, Lord George-Brown, entered the Chamber, I am sufficiently encouraged by what he has said, and what my noble friend Lord Perth, has said, to wish to press this Amendment.

7.16 p.m.

On Question, Whether the said Amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 54 ; Not-Contents, 32.

CONTENTS
Aberdare, L.	Gainford, L.	Newall, L.
Atholl, D.	George-Brown, L.	Norwich, V.
Auckland, L.	Gowrie, E.	Perth, E.
Balerno, L.	Harmar-Nicholls, L.	Rankeillour, L.
Barrington, V.	Harvington, L.	Redcliffe-Maud, L.
Berkeley, B.	Henley, L.	Rochester, L.
Brougham and Vaux, L.	Hylton, L. [Teller.]	St. Aldwyn, E.
Campbell of Croy, L.	Inglewood, L.	St. Just, L.
Colville of Culross, V.	Kinloss, Ly.	Sandys, L.
Cowley, E.	Lauderdale, E.	Seear, B.
Davidson, V.	Lindsey and Abingdon, E.	Somers, L.
Denham, L.	Long, V.	Strange, L.
Drumalbyn, L.	Loudoun, C.	Swinton, E.
Elliot of Harwood, B.	Lyell, L.	Trefgarne, L.
Elton, L. [Teller.]	Macleod of Borve, B.	Wade, L.
Emmet of Amberley, B.	Marsham of Ilton, B.	Wardington, L.
Ferrers, E.	Monck, V.	Wigoder, L.
Fortescue, E.	Mowbray and Stourton, L.	Young, B.

NOT-CONTENTS
Arwyn, L.	Henderson, L.	Serota, B.
Bacon, B.	Hoy, L.	Shepherd, L. (L. Privy Seal)
Blyton, L.	Jacques, L.	Slater, L.
Castle, L.	Lee of Newton, L.	Soper, L.
Champion, L.	Llewelyn-Davies of Hastoe, B.	Stow Hill, L.
Craigavon, V.	Maelor, L.	Strabolgi, L. [Teller.]
Crowther-Hunt, L.	Melchett, L.	Wells-Pestell, L.
Elwyn-Jones, L. (L. Chancellor)	Platt, L.	Wilson of Radcliffe, L.
Fisher of Rednal, B.	Popplewell, L.	Winterbottom, L. [Teller.]
Gore-Booth, L.	St. Davids, V.	Wynne-Jones, L.
Hammett, L.	Segal, L.

but to Amendment No. 12 and Amendment No. 15 at the same time. Clause 12 outlines the two ways by which a child shall be freed for adoption. Clause 12(1) proposes the new concept of relinquishment. As I understand it, sub-sections (2) and (3) give the alternative procedure—the one that has normally been accepted. What I think is not clear is that both subsection (2) and subsection (3) are needed.

It seems somewhat complicated. Subsection (2) covers the situation when the agreement of all parents or guardians is to be dispensed with. Subsection (3) covers the situation where some give agreement but the agreement of others is to be dispensed with. It seems that it would be easier to delete altogether subsection (2) and to amend subsection (3) in the way I have suggested under Amendment No. 12, and by this means to make the procedure easier to understand. I think that this is a very complicated clause and I feel that this would be a way which would be more easily understood by the many people who have to work this Act.

If I may turn to Amendment No. 15, which is to leave out Subsection (7) of Clause 12, originally I put this down because I did not understand what this subsection meant. I am sure that this will come as no surprise to the Committee; I am not a lawyer and at times this is a very complicated Bill. How-ever, on inquiry I have found that almost everybody finds that this subsection is almost unintelligible.

If I may explain the point, under this subsection the position seems to be as follows. If a mother approaches an agency, the agency will try to persuade her to agree to an application under Clause 12(1) which is the relinquishment procedure. Let us suppose, however, that the child is already in the care of an agency and the mother then decides that she wants the child to be adopted, the agency does not have to try to persuade her to consent to an application to free the child under Clause 12(1) because subsection (7) says that before placement the agency must first consider applications under subsection (1). However, I thought that subsection (1) related only to children who were not in the care of agencies. Therefore I find that the whole subsection is very puzzling and I have put down this Amendment to have the subsection clarified and to make quite sure that it does not ask for something which could not happen because of a preceding subsection.

There are two points, therefore, in moving these three Amendments together. The first point is to simplify the procedure laid out under subsections (2) and (3) which go together. The second point is to obtain clarification of what exactly subsection (7) means. I beg to move.

The LORD CHANCELLOR

I sympathise with the wish of the noble Baroness for greater clarity in this clause. In order to seek to achieve that purpose, in due course I shall be moving Amendments Nos. 11 and 13 to deal with the problem. As I understand the matter, it is thought by the noble Baroness that there is no necessity for subsections (2) and (3) of Clause 12, but in fact the sub-sections deal with different situations. Subsection (2) is concerned with children who are already in the care of a local authority or adoption society, and whose parents have either refused to give agreement to an adoption application or have virtually abandoned their children. Subsection (3) is concerned with the situation where one parent may consent but there may be disagreement by the other on whether or not the child should be freed for adoption. So that is a separate set of circumstances.

What I suggest in Amendments Nos. 11 and 13 is to enable the court to deal with applications to free a child for adoption where one parent consents, whether or not the child is in the care of the agency. As it stands at the moment, subsection (3) requires the child to be in the care of the agency, but the Government and I think that this is only necessary in subsection (2) cases; that is to say, where neither parent agrees. If one parent agrees, we think there is no necessity, in order to ease the processes of adoption, that it should be established that the child was in the care of the agency. The Amendment proposed by the noble Baroness would abandon the nee3 for the child to be in the care of the agency in both classes of case, but it seems to us that this would give an agency too excessive a power. Therefore, I hope that the noble Baroness may feel that the matter has been put right in a more satisfactory form in Amendments Nos. 11 and 13.

The purpose of subsection (7), the omission of which is sought in Amendment No. 15, is really to emphasise the importance of the new procedure for freeing a child for adoption being pursued and becoming the practice. It is thought that the new procedure would be of benefit both to the natural parents and to the adopters, enabling a final decision to be made, when all concerned are agreed upon it, at the earliest possible stage, and removing the possibility of uncertainty arising at a critical phase when the child may indeed be a babe in arms.

During the consultations that took place on this matter it was felt that real pressures should be applied, in a proper way, of course, to encourage the use of the new procedure provided for in Clause 12(1): Where, on an application made with the consent of a parent or guardian of a child by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of the child that he freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order the court shall make an order declaring the child free for adoption. If the position is made as unequivocal and clear as that, giving the adoption agency a free hand to do its best for the child and to get the best adoption, that is the procedure which it is hoped will be more generally used, thereby eliminating the anxiety that exists in the present procedure.

I do not know whether I have clarified the position much by what I have said, but we have certainly tried to improve the position in the way I have indicated in regard to Amendments Nos. 11 and 13.

Baroness YOUNG

I am grateful to the noble and learned Lord the Lord Chancellor. I, too, shall want to study the two new Amendments and what he has said about them in relation to Clause 12. In the meantime, I shall be happy to withdraw Amendments Nos. 10 and 12.

I am not at all sure that I yet under-stand the question of subsection (7). Of course I shall read most carefully what the noble and learned Lord the Lord Chancellor has said. The particular point that worries me is in regard to paragraph (c), because it says: the agency has considered the question of applying for an order under subsection (1)". I thought that the whole point about subsection (1) procedure was that the mother then relinquished the child to the agency, and therefore the agency could not apply for something which had already happened. Perhaps I am misunderstanding this, but I should be glad to have an answer to that.

The LORD CHANCELLOR

What I think is contemplated is that at the early stages of the freeing process the agency will consider with the natural parent the possibility of her acceptance of the Clause 12(1) procedure; that is to say, to her agreeing then and there, if she is perfectly happy about it, to the general and unconditional acceptance of adoption. As I understand it the real purpose is to promote the use of the new procedure. It is not absolutely transparently clear that it is so, but that is what I am advised.

Baroness ELLIOT of HARWOOD

Would it not be possible at Report stage for an Amendment to be inserted? I quite understand what the noble and learned Lord the Lord Chancellor has said, that it is the agency and the parent together who are really involved in subsection (1). If that is the case—and I think it should be so—could we not amend subsection (1) so that the application could be a joint one? I understand that the proposition in the Houghton Report is that the parent and the agency would apply together for adoption, thus removing all possible suspicions of pressure on the parent. I should like to suggest most humbly that it would be a good idea to insert some amendment to make this perfectly clear.

The LORD CHANCELLOR

I am quite prepared to look at this again to see if we can clarify the intention in the way indicated by the noble Baroness.

Baroness YOUNG

I beg leave to withdraw Amendment No. 10.

Amendment, by leave, withdrawn.

7.39 p.m.

The LORD CHANCELLOR

I beg to move Amendment No. 11.

Amendment moved— Page 8, line 14, leave out ("by an adoption agency").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Baroness YOUNG had given notice of her intention to move Amendment No. 12: Page 8, leave out "with the consent of a parent or guardian of" and insert "in relation to".

The noble Baroness said: When I spoke to this Amendment before I should have said that there is a printing error; it should read "page 8, line 15". I do not intend to move the Amendment.

The LORD CHANCELLOR

I beg to move Amendment No. 13.

Amendment moved— Page 8, line 15, leave out "in its care" and insert "by an adoption agency".—(The Lord Chancellor.)

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 14: Page 8, line 35, leave out "3 of the 1958 Act" and insert "(Need to notify local authority of adoption application".

The noble and learned Lord said: This is a consequential Amendment, made necessary by the repeal of Section 3(2) of the 1958 Act and its replacement by Amendment No. 28, with which the noble Lord, Lord Winterbottom, will be dealing, but perhaps not tonight. I beg to move.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 15: Page 9, line 1, leave out subsection (7).

The noble Baroness said: May I return to this Amendment because, although I have listened to what the noble and learned Lord has said in explanation of paragraph (c), perhaps we are talking at cross-purposes. I am not quite sure that the noble and learned Lord has seen what it is that really concerns me in relation to subsection (1). As I understand subsection (1), the mother approaches the adoption agency and decides to go on with this relinquishment procedure. It is simply an affair between the mother and the agency, and that procedure then goes into force.

When we look at subsection (7), the reference is to the adoption agency ; there is no reference at all to the mother. When we get to paragraph (c), we find that it says: the agency has considered the question of applying for an order under subsection (1)"— I thought by that stage it would have been dealt with— and is satisfied that such an application would be unlikely to succeed. It seems to me that we are getting into a circular argument, with the mother doing something, then the agency doing some-thing, and the agency then going back. Perhaps I misunderstand this point. I am asking these questions only because I feel that this is the kind of situation that could well arise in real life. A great many people will have to read this Bill, and to understand it. I wonder whether the Government would look at this again, to see if they can clarify the drafting so that it is more intelligible to everyone concerned. I beg to move.

The LORD CHANCELLOR

We can certainly do that. I confess that I am not entirely happy about it. As I have said, the purpose is to make sure that an adoption agency invites the parent—if the parent is willing—to use the Clause 12(1) procedure, the so-called new procedure, before the child is placed for adoption. I will certainly look at it and I must confess that it is not fully clear to me.

Baroness YOUNG

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

The LORD CHANCELLOR moved Amendment No. 16A: Page 9, line 15, at end insert— (9) Before making an order under this section in the case of an illegitimate child whose father is not its guardian, the court shall satisfy itself in relation to any person claiming to be the father that either—

1. (a) he has no intention of applying for custody of the child under section 9 of the Guardianship of Minors Act 1971, or
2. (b) if he did apply for custody under that section the application would be likely to be refused."

The noble and learned Lord said: This Amendment is an addition of a subsection to Clause 12, to enable the court to deal with the interests of the putative father of the child when considering an application for freeing for adoption. The Houghton Committee recommended that the interests of putative fathers should be considered and finally disposed of at this stage of freeing, rather than at the last stage of making the adpotion order. The putative father's consent to adoption is not required under the 1958 Act, nor is that consent required by the provisions of the Bill. But the putative father does have the right to apply for custody under the provisions of Section 9 of the Guardian-ship of Minors Act 1971. It is therefore important that that right should be dealt with before the child is freed for adoption.

The proposed Amendment would give the putative father who wishes to oppose the making of the order the opportunity to make his representations to the court. The Amendment is therefore a means of maintaining the limited rights of the putative father, by establishing at an early stage in this procedure whether or not he wishes to apply for custody of the child, and having that issue disposed of before the continuance of the adoption procedure. His consent to adoption is not required by the terms of the Bill as it stands.

As I understand it, the terms of Amendment No. 16A are: Before making an order under this section in the case of an illegitimate child whose father is not its guardian, the court shall satisfy itself in relation to any person claiming to be the father than either—

1. (a) he has no intention of applying for custody of the child … or
2. (b) if he did apply for custody under that section the application would be likely to be refused."

So that possibility is to be disposed of before the order is made. I will take further guidance, which I must confess I require, on the consequences which flow from the father sucessfully applying for custody for the issue of subsequent adoption.

Baroness YOUNG

I should like to thank the noble and learned Lord for his explanation of this Amendment. I am sure we all recognise that opinion has changed about the rights of putative fathers in adoption cases as, indeed, in other cases. If, as I understand it, this allows the interests of the putative father to be considered, it is to be welcomed. I should want to read what has been said by the noble and learned Lord, to see whether there are any further points that we might wish to raise on Report, but I think I have no further remarks to make at this stage.

Lord HYLTON

I have a small drafting query about paragraph (b) of this Amendment, where we see the words "would be likely". I am wondering whether those words could be criticised in the same way as Amendment No. 8 was criticised when it said "appear likely that". Can the noble and learned Lord help me on this point?

The LORD CHANCELLOR

I confess that I do not like the word "likely" very much. Indeed, I think we have objected at some stage in the history of this Bill to the use of the word "un-likely" in some other context. I will see whether there is some other more effective word that could be used. I am grateful that the matter has been drawn to my attention.

On Question, Amendment agreed to.

Clause 12, as amended, agreed to.

House resumed.