CHILDREN BILL [H.L.] (Hansard, 13 February 1975)

HL Deb 13 February 1975 vol 356 cc1424-96 1424

§ 3.23 p.m.

§ The LORD CHANCELLOR
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

§ Moved, that the House do again resolve itself into Committee.—(The Lord Chancellor.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The Earl of Listowel in the Chair.]

§ Clause 13 [Guardian ad litem and adoption officer]:

§ Lord WELLS-PESTELL moved Amendment No. 17: Page 9, line 17, after ("section 12") insert ("or 16").

§ The noble Lord said: Before I deal with the Amendment before the House this afternoon I should be grateful if your Lordships would allow me to say that on the first day of the Committee stage of the Bill various noble Lords opposite raised a number of matters on the Amendments that we considered on that occasion. I indicated to them that I would look at a number of those points and let noble Lords know the observations of the Government on them. I have written to one noble Baroness on a matter which she raised, but so far I have not—and I want to be quite frank about this—had an opportunity to reply in writing to other noble Lords and noble Baronesses. I hope that they will forgive me if I undertake to see that well before Report stage they receive the information that I promised them. If they are dissatisfied, they will have a remedy at Report stage. I hope that that will be acceptable.

§ With regard to Amendment No. 17, this is really a drafting Amendment. This 1425 particular insertion of the words "or 16 " after the words " Section 12 ", will enable guardians ad litem and adoption officers to be appointed where parents apply for their parental rights to be revested. This would only arise, I suggest, where parents had indicated that they wished to be informed whether their children had been adopted or placed for adoption after 12 months and, if the child had not been adopted, had applied to have the Clause 12 order revoked. If your Lordships will turn to Clause 16, you will see that that deals with the revocation of Clause 12 orders. I beg to move.

§ On Question, Amendment agreed to.

§ Lord SANDYS moved Amendment No. 18: Page 9, line 18, leave out (" such cases as are prescribed ") and insert (" all prescribed cases ").

§ The noble Lord said: We now enter a rather controversial area of the Bill; that is, in regard to the role of the court and the guardian ad litem which the noble Lord, Lord Wells-Pestell, has already mentioned. I am not a magistrate and, therefore, I enter the field as a layman and I think that it will be for your Lordships' convenience first of all to describe the role of the guardian ad litem.

§ The guardian ad litem is appointed for the purpose of the case and it is particularly valuable to note from the Working Paper provided for us by the Houghton Committee what they said in regard to the role of the court and the guardian ad litem. In paragraph 132, the Committee said this: The most difficult issue is whether the appointment of a guardian/curator should be mandatory in all adoption cases irrespective of circumstances, as under the present law, or whether his appointment should be at the discretion of the court, or whether this appointment is necessary at all. Further on, in the same context, the Committee's working document says : We suggest that the proper relationship between an adoption agency and the court is one of accountability. Further down, they add: Under the present system it is the guardian / curator, not the agency, who reports to the court on an adoption application. The agency is rarely represented in court and rarely has any direct contact with the court; the guardian acts as a buffer between them.

§ That is the heart of the dilemma which we are trying to resolve and the object 1426 of the Amendment is to probe more deeply into the situation. I think that one must recognise that there are over 20,000 adoption cases each year. Of those successful adoptions, the vast majority appear in the manner described in the Bill. I should like here to pay a special tribute to the court officials and to those responsible because—though there have recently been a number of very important cases of adoptions which have gone wrong—we can put aside the idea that adoption cases frequently fall down due to mismanagement. In the vast majority of cases, due to the present practice, it is the most successful operation, largely because reliance is placed on the report of the guardian ad litem. It is here that the experience of the professional social worker is of great consequence, and the success or failure of the adoption ultimately depends on three factors—the willingness of the natural parents to release for adoption, the willingness of the adoptive parents to adopt, and the insight of the guardian ad litem in his recommendations.

§ Under the new procedure recommended to us in the Bill, there is a special difficulty. Instead of the situation which obtained hitherto, we have an adoption and, if we study the clause we see that it says: rules shall provide for the appointment, in such cases as are prescribed ". The rules are not before us. We have no knowledge at this Committee stage of what the Government have in mind in proposing a set of rules. Therefore, there is a special difficulty of identifying those cases in which the interests of the child are to be examined. At the present moment, all cases are subject to a guardian ad litem appointment when the cases come before the court. Under the new procedure there is a difficulty of identification and we can refer to Houghton in regard to this special problem. Houghton recommends that it is largely unnecessary because it is a waste of time, making necessary the very valuable and skilled services of social workers and other professional people—doctors, health visitors and the like—so that they attend court.

§ However, there is a special burden placed here on both magistrates' clerks and registrars as to how they are to identify those cases in which a guardian 1427 ad litem should be appointed or should not be appointed—they have to choose. In this difficult situation there is a natural tendency to revert to the previous position and I should like to draw your Lordships' attention to the Houghton Working Paper, paragraphs 209, 210 and 211. The Working Paper recommended in paragraph 209: The court will be able to appoint a guardian curator ad litem (who will be a social worker) to make further inquiries in adoption and guardianship cases. These arrangements are additional to the right of parties to the case to call their own evidence, including expert witnesses, if they wish.

§ Further down we get a suggestion, which has been considered in the body of the Report, in paragraph 211: We suggest that the family court should have a general discretionary power comparable to the power to appoint a guardian/curator ad litem in adoption cases, to appoint an individual with relevant expert qualifications to inquire into a case before the court, or some particular aspect of the case, and report back to the court. This is perfectly satisfactory, but it is once again the problem of which cases, and therefore when we turn to the final document, the Report before your Lordships, it is very interesting to note finally which side they came down on.

§ They say in their recommendations — we have it very clearly set out in Recommendation 60: The agency "— that is, the adoption agency … should be accountable to the court, making a full written report direct to the court, being a party to the proceedings, and being represented at the hearing. Clearly the onus is to be placed, as the Houghton Committee would wish, upon the agency—that is the private agency which is responsible for the adoption—and they continue in their Recommendation 61: In both relinquishment and adoption applications the appointment of a guardian ad litem or curator ad litem should be at the discretion of the court. The dilemma is not resolved. We feel on this side that much greater concern has been expressed that there will be cases where a guardian ad litem should be appointed, rather than cases where he should not, and therefore our recommendation is that we should revert to the present practice. In looking at the situa- 1428 tion I think it would be extremely helpful if the noble and learned Lord the Lord Chancellor, or the noble Lord, Lord Wells-Pestell, could give us some confirmation or assurance about the rules to be drafted, because it is in the absence of these rules that this dilemma has come about. I beg to move.

§ The LORD CHANCELLOR
The intention of this Amendment appears to be to make the appointment of guardians ad litem and adoption officers obligatory in all cases. The Houghton Committee recommended that the appointment of a guardian ad litem should be no longer required in every case, and Clause 13(l)(a) follows that guidance. I willingly respond to the invitation of the noble Lord to indicate what we have in mind as to the nature of the rules, but I am bound to say that no decisions on the precise rules have yet been taken. But perhaps I may make the following observations at this stage as to what we have in mind.
There will not be a guardian ad litem in every case, as his present functions will in many cases be taken over by the agency itself or by the adoption officer. The rules will, however, give the courts guidance as to the cases where a guardian ad litem should be appointed and they will probably provide that unless the court decides that it is unnecessary—and this will be left to the discretion of the court—a guardian should be appointed in the following cases: contested adoptions ; contested applications to free for adoption under the provisions of Clause 12(2) and (3); cases under Clause 20 where foreign law may have to be applied ; cases where any point of law arises—for example, cases started in, or transferred under Clause 65 to, the High Court, or High Court cases where the lower courts have dismissed an application in favour of the High Court under Clause 65 ; and possibly other difficult cases—for example, where there is a risk of a conflict between a divorce custody order and the adoption proceedings where Clause 9(4) or Clause 10(5) may apply.
In other cases, it has not yet been decided whether these rules should provide straight away that there should be no guardian ad litem unless the courts decide that one is needed. It may be that this should not be done immediately, but 1429 only if and when the agencies are fully able to render the need for a guardian unnecessary. But I will certainly take account, in the preparation and the drafting of these rules, of the views which the noble Lord has just expressed and any other views which may be expressed in Parliament and outside on the sort of provision required in the exercise of these rulemaking functions ; and I have little doubt that the same will be true of the Court of Session which will be making the rules for Scotland. I am grateful for the intimation that has been given of the necessity of keeping a watchful eye on this provision.

§ Baroness MACLEOD of BORVE
As one who tries to make adoption orders in my court, I would sincerely support my noble friend Lord Sandys. I feel it is very important for the child that in every case a guardian ad litem should be appointed. One of my reasons for saying this is that I do not feel that an adoption agency has the ability to delve deeply enough into the pasts of the parents or possible adoptive parents, or into the medical history—the many facts that we are given in court as a result of a child for adoption having a guardian ad litem to represent him or her. We are given very full reports indeed by somebody who is representing only the child. It is, I gather, said by somebody that it might be a waste of time for the social services to be involved in all cases. It might well be a waste of time from their point of view, but we are concerned with the life of a child, and we take that task very seriously indeed. I should like strongly to support what my noble friend Lord Sandys has said. It is vital that a guardian ad litem should be appointed in all cases.

§ 3.40 p.m.

The Countess of LOUDOUN
I hope that the rules will provide for the appointment of the guardian ad litem to be discretionary and for the guardian to instruct a legal representative where appropriate and at the public expense if necessary. I hope, too, that the guardian ad litem will be chosen from a wide variety of people, not necessarily all local authority social workers but including probation officers, social work teachers, retired social workers and those employed in charitable and voluntary organisations.

1430

§ The LORD CHANCELLOR
May I say that we are continuing to have discussions in this field with all the relevant authorities directly involved and I will take on board what both noble Baronesses have just said. Naturally, we want to see that the child is protected and I hope the rules will really cover all the reasonably foreseeable cases of difficulty.

§ Lord SANDYS
I am much obliged for the support I have had from my noble friend Lady Macleod of Borve, who is a very experienced magistrate in this field. I think that the feeling is that as so much of the material on a particular case exists already, the financial argument that it would be a waste of time— for example, a waste of time for somebody to present the report or gather the facts—is really rendered almost nugatory. If it is the experience of magistrates that a guardian ad litem is a particularly helpful appointment, I feel that serious attention should be given to reconsideration before the rules are finally drafted.
There is one further matter that I should like to draw to the attention of the Committee. It is the problem of terminology. I have already mentioned the title of the guardian ad litem and I should like to refer to the adoption officer, a matter to which the noble and learned Lord the Lord Chancellor referred. In the Houghton Report there is a recommendation that he should be named " recorder " or " recording officer ". There is the possibility here of some confusion about the role and title of the adoption officer, because his role in the course of court proceedings is to ensure that the signatures are correctly witnessed and that records are correctly kept as opposed to the social aspect of bringing the facts of the case before the court. I should like to reserve the right to put down at Report stage a further Amendment in regard to the terminology, if we wish to do so. In the meantime, I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Lord WELLS-PESTELL moved Amendments 19 and 20: Page 9, line 19, leave out from first (" of") to (" person ") and insert (" a ") line 23, leave out from first (" of ") to (" person ") and insert (" a ")

§ The noble Lord said: I wonder whether it would be for the convenience of the 1431 Committee if I were to move Amendments Nos. 19 and 20 together. I do not think that there is anything controversial in these two Amendments. They are consequential upon the decision made, after the Bill was introduced, to seek a power to enable the Secretary of State to make regulations concerning the setting up of panels of experienced social workers from which courts might appoint persons to carry out the duties of guardians ad litem and adoption officers. The proposed Amendment No. 78 enabling the regulations to be made follows Clause 65 and provides that the Secretary of State may make provision for the establishment of a panel of persons from whom guardians ad litem and adoption officers are to be appointed and for the payment of their expenses. I beg to move.

§ On Question, Amendments agreed to.

§ 3.45 p.m.

§ Lord SANDYS moved Amendment No. 21: Page 9, leave out lines 27 and 28 and insert (" provided that the same person is not both guardian ad litem and adoption officer.")

§ The noble Lord said: This is continuing the problem of both appointments and terminology. If we turn to Recommendation No. 40 of the Houghton Report we see that it reads: Written evidence of her decision"— that is the mother's decision— should be witnessed by a social worker appointed by the court, known as the reporting officer, who would have a duty to furnish the court with a report on whether the mother had freely made her decision after considering the alternatives and implications. Later, Recommendation No. 45 refers to a "reporting officer". I think that we are in some difficulty here and that it would be much better to ensure that the guardian ad litem and the adoption officer are not the same person.

§ There is a further point. I shall not quote from the Houghton Report for I have done so too freely ; but earlier in that Report there is a specific recommendation that where an official of a local authority is concerned he should not be represented as the guardian ad litem. I think that our recommendation in this Amendment would help us out of the situation. So far as the court position is concerned, we are not adding to their 1432 present burden, but are continuing the existing staff situation. I beg to move.

§ Baroness ELLIOT of HARWOOD
I should like to support strongly this Amendment. I have had information from three of the Scottish courts, the Scottish adoption societies and the local authorities on this point. They feel that it is important that there should be two people and not one person able to act both for the child as a curator ad litem and for the parent or guardian. They feel that there should be two ; that both should be social workers, but that they should not be the same person. There could not be two social workers employed by the local authority. There could be one person employed by the local authority concerned and someone else—an adoption officer or somebody with experience in this type of work who has some qualifications or great experience. It would be most unwise if we were to agree that there should be only one person to carry out what might be two roles. I think it advisable to alter this and to put it now into the Bill; because it would make it clear that we were to treat this matter with two people's interests in mind and with the interest of the child being predominant.

§ Lord WELLS-PESTELL
I cannot help but sympathise with what is in the minds of the noble Lord and the noble Baroness but, if I may put it this way, I think we must take a realistic view of the situation. This is a very important Bill and nobody will disagree that it will have farreaching implications. It may be one of the most important Bills that will ever have been put on the Statute Book. I am mindful of the discussions which took place on Second Reading and, as I understand the situation, the object of Clause 13 as drafted is to avoid unnecessary duplication of duties. Clause 18(1) enables a court, if it thinks fit, to appoint the same person to be both guardian ad litem and adoption officer. On the other hand—and this is important —if the court considers that different persons should be appointed, either at the time that the application is made or later, there is nothing to prevent the court from appointing them. I feel, and I say this with some feeling and knowledge and experience such as noble Lords who have spoken have, some discretion should be 1433 given to the court in this matter. To provide that it should in every case do as the Amendment provides, would be wasteful of social work resources.
Noble Lords drew attention on Second Reading to the tremendous effect that this Bill will have upon social work departments and the pressures that will be put upon them. I think we must allow the court to have some discretion. I acknowledge that the court is bound to have reports from two sources independent of each other, namely, the agency or the local authority and the adoption officer ; and to provide for a different guardian ad litem in each case would, unless I have misunderstood the clause, mean a third investigation and report. I would say to the noble Lord, Lord Sandys, and his friends that while we have some sympathy with what is in their minds we must take into account the amount of work that has to be done in these situations and allow the court to have some discretion. My experience, and I think the experience of many other noble Lords, is that the court is very concerned with the situation and the welfare and future of the child, and I do not think it could go wrong. I hope that this Amendment, if I may say so very respectfully, will not be pressed.

§ Baroness MACLEOD of BORVE
I wonder whether I may press the noble Lord, Lord Wells-Pestell, on the question of at what point he envisages the court exercising its right to have a guardian ad litem appointed. Because what happens now is that the prospective adoptive parents plus the child come before the court with the guardian ad litem, with all the documentation and the report which that guardian ad litem has made, and it is a fait accompli so far as the court is concerned. I rather wonder whether the court comes into this matter. The adoption officer does not exist in my court. I wonder whether the noble Lord could enlighten me.

§ Lord HYLTON
On a practical point, if the court is to exercise a discretion, will it not in practice make matters difficult if there has to be an adjournment?

§ Lord WELLS-PESTELL
It would be competent for the court to call for a report from someone appointed as the adoption officer. I recognise what the 1434 noble Baroness says, that the guardian ad litem comes before the court with a lot of relevant information ; but as I thought I made clear there is a duty on the court to have a second opinion. If it is not there, it is within the competence of the court to appoint someone to act in the function of the adoption officer to produce it.

§ Baroness YOUNG
I am sure that we have listened with great interest to the very important reply given by the noble Lord, Lord Wells-Pestell. I think what we are all trying to do is to take a realistic view of the situation. No one is trying to do anything else. But, particularly after listening to the noble Baroness, Lady Macleod, whose experience in this matter is very great, and indeed reading the reports of what happens in courts at the moment, one really cannot be satisfied to leave the position just as it is. It seems to me that with the emphasis in the Bill on the interests of the child being put first, one really must not leave loopholes of this kind where one is simply taking on faith what could happen in a difficult case. I think it extremely important from the point of view of the outside world that justice should be seen to be done. It could well be expected, where the guardian ad litem and the adoption officer are one and the same person, that that person is judge and jury in his own case, and people might feel that that is not necessarily in the best interests of the child. This is not an Amendment which we on this side of the Committee intend to press this afternoon, but we should like to know a little more about the Government's thinking on this matter before leaving it.

§ Baroness ELLIOT of HARWOOD
Before the noble Lord, Lord Wells-Pestell, replies, may I say that one of the difficulties is that if we do not have something specific in the order it is so easy to bypass it. The noble Lord said that the number of social workers is limited. We are trying to get more and to train more people, but there may be people who are retired and who have had experience in different kinds of social work who might be able to help in this connection. If the court in fact knows that there is no one available, as the noble Baroness, Lady Macleod of Borve. said, it is very easy for the court to say, 1435 " There is no one here: let us get on with it and take this thing as it stands ". Although there are some cases which are perfectly safe, there may be others which are difficult and somewhat controversial, and once the thing has been done one cannot go back on it. Would the noble Lord, Lord Wells-Pestell, look at this matter again, not in the light of the fact that at present there is a shortage of social workers but in the hope that in five years' time—this Bill is very important and we hope it will last for that time—there may be more such persons available? It would be very wise if the noble Lord could look at the problem again and perhaps come back with a different suggestion on Report stage.

§ Baroness MASHAM of ILTON
Before the noble Lord, Lord Wells-Pestell, answers, may I ask a question and make something clear in my mind? Before a case even comes before the court there has to be a very thorough screening process of prospective adoptive parents, has there not? The case is gone into very thoroughly even before going to the court.

§ Lord WELLS-PESTELL
That is so. I do not think I can usefully add anything to what I have said. The adoption officer will be appointed when the application is made just as guardians ad litem are appointed now. I should have thought that the clause as set out would meet all the objections and suggestions made by noble Lords. As I say, I am always prepared to look at this again, but I do not think we can improve on the situation as it is at the present moment. I do not want to go over the ground again. I say merely that we are not unmindful of the many difficulties and that a great deal has to be gone into very carefully between now and the time when the Bill is put on the Statute Book. Part of the purpose of the Second Reading and Committee stages is to bring these things to the surface so that we can examine them ; but, as noble Lords will know, there is a great deal to be done. We shall certainly keep in mind the points which have been made, but I cannot say at this stage that we can take this matter back and bring something fresh before your Lordships, although I shall certainly look at it.

1436

§ Lord SANDYS
First of all, may I refer to the opening remarks of the noble Lord, Lord Wells-Pestell, on this Amendment? He referred to Clause 18(1). I am sure it was a slip and he meant Clause 13(1).

§ Lord WELLS-PESTELL
Yes, I am sorry.

§ Lord SANDYS
That simply puts the record straight. There would be an opportunity under Amendment No. 78—which is to be moved by the Lord Chancellor with regard to the panel for guardians ad litem and adoption officers—to raise this matter again, probably on Monday. I think that, at that stage, we should like the opportunity to bring forward further comments. Meanwhile, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 4.0 p.m.

§ On Question, Whether Clause 13, as amended, shall stand part of the Bill?

§ Lord HYLTON
This clause brings to the surface a general point of Parliamentary principle. Governments of all Parties come to this Chamber with Bills which require a considerable number of rules and regulations. It frequently happens that we reach Committee stage and these rules and regulations are not available even in draft. We have seen this happen during earlier stages of this Bill. It is a rather unsatisfactory state of affairs and may well mean that a much longer time has to be spent in Committee or on later stages than would be the case if we could see the necessary rules in time, even in draft. Of course, not everything can be put into legislation, and rulemaking may perhaps be regarded as a necessary evil. I apologise for not having given notice of this point in advance, but I should like to ask the Government to give consideration to it.
If I may, I should like now to refer to the important point raised at an earlier stage by my noble friend Lord Colville of Culross, when he reminded your Lordships that rules and regulations may be of very great length and extent, and they can be approved or negatived only by Parliament. There is no possibility of amending them if we do not like them.

§ The Lord CHANCELLOR
The cri de coeur expressed by the noble Lord has 1437 been expressed, if not over the ages, at least over many decades, where a great deal of legislation has to be consigned to rulemaking powers and to Regulations and Statutory Instruments. The more the State enters into the delicate field of family relations, and indeed into economic or other relations, the more impossible it is for every detail of the administrative implementation of an Act of Parliament to be provided for in the terms of the Bill, or in such a way that when the Bill comes to a Committee all the relevant rules and Statutory Instruments are already available for your Lordships.
I am not sure that this is necessarily a bad thing. After all, the process of consultation by the Department concerned is, I hope, a continuous one. Already, the suggestions that have been made today as to what ought to be properly provided for in the rules have been recognised as useful, and they will certainly be taken on board. Other suggestions will emerge during the course of the debate and, as I have said, consultation will continue. There are further stages beyond this, and there is a good deal of time available before the rules will be finalised so, frustrating though it may seem to Members of either House not to be informed immediately of what is in store, I am not sure that the procedures are really as inhibiting or as unsatisfactory as has been indicated. Certainly we hope to get the rules out as soon as possible, but I am reasonably impenitent over the absence of final rules at this stage because I do not think that is necessarily a drawback.

§ Lord HYLTON
If the noble and learned Lord will bear with me, I was not asking for finalised rules but for draft rules that could be studied before they emerge in final form.

§ The LORD CHANCELLOR
As the noble Lord indicated earlier. there will be a chance for us to debate these rules before they are finalised. It is quite true that Parliament restricts the action of your Lordships to acceptance or rejection ; but if Government are to continue, these limitations are inevitable: otherwise the machinery of Parliament and Government would be clogged with the interminable deliberation of detail.

§ Baroness YOUNG
I am sure the noble and learned Lord is quite right in saying 1438 that one could not debate rules and regulations on every Bill ; nor do I think that anybody would suggest that. But what I think people feel about this Bill— certainly my colleagues on this side of the Chamber—is that a great deal of it is left to rules, not only on this clause but on Clause 50 and on Clause 3, regarding the criteria for voluntary adoption agencies ; in other words, on a sequence of extremely important matters. The point applies not simply to this Committee but to the public outside. It is for this reason that a number of Amendments have been put down, because one simply does not know that the Government have it in mind to include in the rules. I very much support my noble friend in this matter. I can quite see that it would be inappropriate to discuss all the rules to be laid down, but it would be very valuable to have some indication of the Government's thinking on these matters.

§ Clause 13, as amended, agreed to.

§ Lord WELLS-PESTELL moved Amendment No. 22: Transpose Clause 13 to after Clause 16.

§ The noble Lord said: This is a consequential Amendment, and its whole purpose is to transpose Clause 13 to after Clause 16 so that the three Clauses 12, 15 and 16 relating to the procedure for freeing a child for adoption shall be grouped together. This seems to be the tidiest way of dealing with the situation, and I beg to move.

§ On Question, Amendment agreed to.

§ Clause 14 [Making of order]:

§ 4.8 p.m.

§ Lord SANDYS moved Amendment No. 23 : Page 10, line 1, leave out ("may") and insert (" shall")

§ The noble Lord said: I wonder whether it would be for the convenience of the Committee if I spoke to Amendments Nos. 23 and 24 together, since they are very closely connected. With your Lordships' agreement, this matter concerns the question of whether proceedings should be held in open court or in private. As your Lordships will be aware, current practice is that the proceedings may be held in private, in judges' chambers or in camera in court. Our view is that this practice is very sound and should continue. We do not understand why a discretionary 1439 power is given permitting further rules to be made—and here I entirely agree with my noble friend Lord Hylton as to the difficulties in which we find ourselves. I can once again only advise your Lordships to examine the working paper produced by the Houghton Committee. They make very interesting comments on the matter of how courts should conduct their affairs in private. In paragraph 217 they naturally refer to the legitimate public interest in proceedings, and then they say: On the other hand, many family cases concern essentially private matters. The law already recognises this in the case of adoption, by providing that hearings shall be in camera. Similar considerations apply to cases arising under the extension of guardianship jurisdiction which we propose ; and it may be that there are also other family cases, not within our terms of reference, where the position is similar. I think that makes a fairly firm case for continuing with the position as it is today. I beg to move.

§ Lord WINTERBOTTOM
As I speak for the first time on this Bill, may I say that I sympathise strongly with the point of view expressed by the noble Lord, Lord Sandys. As someone who is not a magistrate and who is not experienced in this field, I feel a little lost among experts. But I will do my best, and I hope the noble Baroness and the noble Lord opposite will forgive me if I cling somewhat tightly to my brief. I would agree with the noble Lord that it is helpful to take Amendments Nos. 23 and 24 together, because they cover the same matter. I think the whole Committee is agreed that the paramount interest in these matters is that of the child, and naturally one wants to keep affairs of this type as private as possible. However, there are good reasons for keeping the Bill as it is and may I explain what they are?
The position is that by rule the county court and the juvenile court are required to sit in camera and the High Court is enabled to sit in chambers. Thus High Court adoption decisions, like wardship or custody decisions, can be given in open court after a private hearing ; that is to say, open court procedure can follow a private hearing where the intimate details are discussed. This hearing in open court may be appropriate in cases where an important question of law 1440 arises, although it happens only rarely. In such cases, the judges take steps to ensure that the parties cannot be identified so that no harm, and much good is done by the rendering in public of a High Court adoption decision. Under our system of case law, this is obviously important. This power should be particularly preserved for cases under the Adoption Act 1968, which will be replaced by Clause 20 of the Bill when we reach it and if it is agreed to, where difficult questions of foreign law will arise. The Amendment proposed by the noble Lord would stop this happening in future, since it would require the application to be determined in private.
May I say a brief word about appeals? The effect of the Amendment on appellate decisions is not clear. At present the Court of Appeal, on appeal from the High Court, and the divisional court, on appeal from the magistrates' court, can give their decision in public—this, once again, on the basis of anonymity. The Amendment might prevent the continuance of this practice, since the Court of Appeal and the divisional court normally follow, as the noble Baroness knows better than I do, the mode of trial adopted in the court below. It would not be desirable to prevent decisions on adoption appeals from being reported, since such decisions have played a large part in the development of the law of adoption. That is why we hope that the noble Lord, after considering the points, I have made will withdraw his Amendment.

§ Lord WIGODER
Following upon that explanation, although one can understand that in those circumstances the application should be determined in open court, in what circumstances is it proper to make application to be heard in open court?

§ Lord WINTERBOTTOM
As I explained earlier, I am not speaking as a legal expert. From the answer I have given, I think it is clear that wherever it is necessary cases will be heard in privacy. But where it is of importance in the public interest that findings should be made public as part of the business of creating case law, then the actual decision will be given in open court although the names of individuals and the background to the cases will be kept 1441 private because of the way in which the case has been heard.

§ Baroness YOUNG
The noble Lord, Lord Winterbottom, has my deepest sympathy on this Bill. We are all working very hard because it is very complicated indeed, and I would quite understand if he prefers not to give an answer on this today but to write to us. But if I might follow up the noble Lord, Lord Wigoder, if this is what subsection (3) means why does it not say so? It does not seem to me that it does in fact say what the noble Lord, Lord Winterbottom, is suggesting, and I think that is perhaps what the noble Lord, Lord Wigoder, was saying. As I read it, it is suggested here that it is possible for applications to be heard in open court, and that is what concerns us. I see the point about appeals and the results of appeals being publicly known. Obviously, this is of public interest, but this does not seem to me to be what subsection (3) is about. I wonder whether the noble Lord would look at the drafting of it again.

§ Lord WINTERBOTTOM
There is no change in the law resulting from this clause. But as I must do, I will look again at the points made by the noble Baroness. We are all agreed on the principle of the Bill but we want to get it as right as possible before it passes into law. I will write to her or if my advisers so advise will put down an Amendment at a later stage of the Bill.

§ Baroness MACLEOD of BORVE
I think it is important that we should be utterly determined that it must always be in private. It always has been and always must be. It is a deeply felt family affair and I would never allow even a policeman in my court. I think it is very important.

§ Lord SANDYS
Before I withdraw this Amendment on behalf of my noble friend Lady Young and myself, may I say that the noble Lord has suggested that we are all agreed. I think the noble Baroness has just suggested that we are dissatisfied with the situation. If we do not have satisfaction and assurance that the rules to be drafted will meet the case we have made, I think we shall wish to return to this on Report. With those 1442 remarks, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ Lord WELLS-PESTELL
Amendment No. 25 is a paving Amendment for Amendment No. 27 which I shall be moving on behalf of my noble and learned friend in the course of a few minutes. I beg to move.

§ Amendment moved— Page 10, line 23, leave out subsection (7).— (Lord Wells-Pestell.)

§ On Question, Amendment agreed to.

§ 4.19 p.m.

§ Lord WELLS-PESTELL moved Amendment No. 25A: Page 10, leave out lines 38 to 41.

§ The noble Lord said: This Amendment serves the same purpose for Scotland as Amendment No. 25 serves for England and Wales. In other words, it deletes provisions in the Bill now covered by the new clause, which is the clause after Clause 16, Amendment No. 27A, which applies to Scotland as well as to England and Wales. I beg to move.

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 14, as amended, shall stand part of the Bill?

§ The LORD CHANCELLOR
I hope I am in order in rising to say what I am about to say. In view of the discussion that took place earlier—and it is relevant on Clause 14 which is about rules that are made—I think the impression existed, and perhaps I should have dispelled it, that under the Bill as it stands the rules will be laid. That is not at the moment provided for in the Bill. But in the light of the matters raised in Committee and the importance attached to them, I will in due course move an Amendment to require rules to be laid. I thought I should inform the Committee of that point, in case it may have been misled by my failure to make it clear at an earlier stage.

§ Clause 14, as amended, agreed to.

§ 4.20 p.m.

§ Lord WELLS-PESTELL
The reason for moving this Amendment is similar to that for Amendment No. 22. It simply proposes that Clause 14 be transposed to 1443 after Clause 16 to enable Clauses 12, 15 and 16, relative to freeing for adoption, all to be grouped together. I beg to move.

§ Amendment moved—

§ Transpose Clause 14 to after Clause 16.— (Lord Wells-Pestell.)

§ On Question, Amendment agreed to.

§ Clauses 15 and 16 agreed to.

§ Lord WINTERBOTTOM moved Amendment No. 27A: After Clause 16, to insert the following new clause:

§ Care etc. of child on refusal of adoption order

§ " .—(1) Where on an application for an adoption order in relation to a child under the age of 16 the court refuses to make the adoption order then—

(a) if it appears to the court that there are exceptional circumstances making it desirable that the child should be under the supervision of an independent person, the court may order that the child shall be under the supervision of a specified local authority or under the supervision of a probation officer ;
(b) if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the child to be entrusted to either of the parents or to any other individual, the court may by order commit the child to the care of a specified local authority.

§ (2)Where the court makes an order under subsection (1)(b) the order may require the payment by either parent to the local authority, while it has the care of the child, of such weekly or other periodical sum towards the maintenance of the child as the court thinks reasonable.

§ (3)Sections 3 and 4 of the Guardianship Act 1973 (which contain supplementary provisions relating to children who are subject to supervision, or in the care of local authorities, by virtue of orders made under section 2 of that Act) apply in relation to an order under this section as they apply in relation to an order under section 2 of that Act.

§ (4)In the application of this section to Scotland—

(a) the words " or under the supervision of a probation officer" in subsection (l)( a) do not apply;
(b) subsection (3) does not apply ; and
(c) subsections (2), (4) and (5) of section 11 of the Guardianship Act 1973 apply in relation to an order under this section as they apply in relation to an order under that section."

§ The noble Lord said: I am about to move three separate Amendments, Nos. 27A, 28 and 29. The Amendment which 1444 stands in the name of my noble and learned friend the Lord Chancellor is intended to replace Clause 14(7), deleted by an earlier Amendment—the one I mentioned earlier. Its intention is to give effect to the Houghton Committee recommendation No. 80, that where a court dismisses an application for an adoption order it should have power to make an alternative order: that is, a supervision order or an order committing a child to care of the local authority. Basically this covers situations where an application is made for an adoption not arranged by an adoption agency and the court does not grant that application. For this reason it is wished that the court should have power to make alternative provisions for the child. I beg to move.

§ Baroness YOUNG
I am grateful for the explanation of this new clause. To make sure that I am clear in my mind about what it is attempting to deal with, may I say this? As I understand the position, at the moment a court has the choice either of making an adoption order or of refusing it, and the court may have the choice either of granting an order to applicants of doubtful suitability or, alternatively, of refusing the order and allowing the applicants to continue to have charge of the child without in fact making an adoption order. Am I right in thinking that this new clause gives power to the court either to return the care of the child to a local authority or to make a supervision order on it? In fact, it is improving upon Clause 14(7) which has been deleted. Am I right in thinking that that is the position?

§ Lord WINTERBOTTOM
The noble Baroness is quite right. It is a situation that arises where no adoption agency is involved and the court has refused to make an adoption order. The court cannot leave the matter lying in a vacuum, so by this Amendment they are being given power to make an alternative order which is, as the noble Baroness said, either a supervision order or an order committing the child to the care of a local authority.

§ Lord HAILSHAM of SAINT MARYLEBONE
Can the noble Lord tell me this? It may be I am rather dense about it. A couple of foster parents want to apply for adoption ; the court, because the order is opposed, or for some 1445 other reason that it is not satisfied, does not make the adoption order. Can the noble Lord possibly confirm that the normal and perhaps the best course would be simply to leave the status quo so that the child remains with the foster parents?

§ Lord WINTERBOTTOM
I should have thought that the status quo had been altered in the case put forward by the noble and learned Lord, Lord Hailsham, in relation to the foster parents, or whoever were the people concerned. We must remember that it was a situation in which the individuals concerned were applying for an adoption order, not through an adoption agency but on their own initiative. The situation had changed because what he said was that the foster parents of the child as of now had wanted to change the situation and the court had said: " We do not like the position. Therefore we should like to resist this application for an adoption and should like to do something else."

§ Lord HAILSHAM of SAINT MARYLEBONE
That does not meet the point I am making. I do not know whether the noble and learned Lord the Lord Chancellor could help about this. Often it is found that an application for adoption is made by or on behalf of foster parents. The child is there with the foster parents ; the child is happy ; the child is being looked after in a private home by people who love it—I say " it " because I do not know whether to say " him " or " her ". There is the status quo. The foster parents do not succeed in obtaining an adoption order. I quite see there may be circumstances in which a court wish to hand the child over to a local authority because the child was not happy with the status quo. I can also see why in certain circumstances they might wish to make a supervision order. But I should have thought that in the normal circumstances they would say: " No adoption ; but we leave the child where it is, happily with people who love it, and do not send it away to some local authority or put the foster parents under supervision simply because they have applied for an adoption order." I was seeking confirmation that that would be so, but I should be rather disturbed if it were not so.

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§ Lord WINTERBOTTOM
I am glad to say that advice has come to me. I stated that two alternatives were open to the court in these circumstances. There are in fact four. The court can issue a supervision order, or an order committing the child to the care of the local authority ; or they can make an interim order covering the situation as it stands in front of the court, or they can leave the status quo. So the status quo, as the noble and learned Lord, Lord Hailsham, has pointed out, if satisfactory, or, rather, more satisfactory than the question of adoption, can in fact remain.

§ Lord HAILSHAM of SAINT MARYLEBONE
I am much obliged ; I am greatly relieved by that statement.

§ Baroness MASHAM of ILTON
May I ask the noble Lord whether foster parents who want to adopt and are not allowed to adopt have a right to appeal? This situation does arise. I have read of it in the Press in the last few weeks.

§ Lord WINTERBOTTOM
If I may, I will write to the noble Baroness and give an answer.

§ Lord HAILSHAM of SAINT MARYLEBONE
Possibly I can help. Yes, there is a right of appeal. It varies slightly according to the tribunal before which the adoption application is made, but there is in general a right of appeal. If the application is made to the county court and the county court judge decides against adoption, the chances of success on appeal are somewhat limited because the Court of Appeal is rather reluctant to interfere with the discretion of the county court judge. I forget where the right of appeal lies from the magistrates—I think, to the Divisional Court or the Family Division, but I say this subject to correction by the noble and learned Lord the Lord Chancellor.

§ The LORD CHANCELLOR
I am not disposed to correct the noble and learned Lord, Lord Hailsham, because I think he has spoken correctly.

§ Lord REDESDALE
May I ask a question before this matter is finally passed over? If, for instance, foster parents have applied for adoption and been rejected, would this affect their rights to go for custodianship?

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§ Lord WINTERBOTTOM
I hope the noble Lord will permit me to write to him on this point.

§ Baroness MASHAM of ILTON
One of the problems seems to be the age of foster parents who are thought to be too old. Is this Bill going to give any guidance to social workers on the age of those foster parents who love a child and want to adopt it? It is thought that at forty it is too old to adopt. This surely cannot be right, because people of this age are mature and have a lot of sxperience.

§ Lord WINTERBOTTOM
The noble Baroness has more experience of this than I have. It is a matter for professional judgment, but again I will see what professional judgment lays down on this matter and let her know.

§ Baroness FISHER of REDNAL
When my noble friend says that he will see what professional judgment lays down on this matter, I am wondering whether he will take into consideration the child-bearing age of women. If women of 50 can still bear children, that is a fact which should also be taken into consideration and they should equally be considered as foster parents. There is conclusive proof that what we call the middle-aged group of persons can act as very good foster parents. I should not like to feel that this Bill acts against that group of people who can provide very sound opportunities in a very stable home, because there are no young children whose interests conflict with the interests of any foster child.

§ Lord WINTERBOTTOM
I am grateful to my noble friend for her intervention, because it has given me the opportunity to clear up one point. Under Clause 35, foster parents will be able to apply for custodianship. I agree with my noble friend who has just spoken. I feel that somebody who is now aged 61 has every right to have children! If I may interject a slightly different note, I am wondering how one judges the happiness of a two-year old child? That is one of the technical problems of professional judgment.

§ Lord HAILSHAM of SAINT MARYLEBONE
I think one must accept the fact that children do not like to be disturbed. There are two things 1448 which a child needs much more than anything else. One is love and the other is security. Once one has that clearly in mind, one must remember that prima facie a two-year old child ought not to be disturbed. Many occasions occur where disturbance takes place, whether one wishes it or not. However, the fact is that one should never, without very good reason, disturb the care of a very young child. The idea that even a six-months old baby does not mind being disturbed is one which ought not to be considered for a moment. I have quite considerable experience of some of these cases, and the evidence of a six-months to two-year old child really minding a change in its environment is quite overwhelming.

§ Lord WINTERBOTTOM
I am grateful to the noble and learned Lord. In fact, this is something which I feel strongly about, and perhaps I was slightly flippant. I hope to have very thorough discussions on a series of Amendments which will be moved in due course by the noble Viscount, Lord St. Davids, which cover just this question. It could be an interesting part of our discussion on the Bill.

§ On Question, Amendment agreed to.

§ Lord WINTERBOTTOM moved Amendment No. 28: After Clause 16, insert the following new Clause:

§ "Need to notify local authority of adoption application

§ .—(1) An adoption order shall not be made in respect of a child who was not placed with the applicant by an adoption agency unless the applicant has, at least three months before the date of the order, given notice to the local authority referred to in section 9(3)(b) or 10(3)(b), as the case may be, of his intention to apply for the adoption order.

§ (2) On receipt of a notice given by the applicant under subsection (1) the local authority shall investigate the matter and submit to the court a report of their investigation.

§ (3) Under subsection (2), the local authority shall in particular investigate, so far as is practicable, the suitability of the applicant and any other matters relevant to the operation of section 2 in relation to the application."

§ The noble Lord said: The purpose of this Amendment, which I move on behalf of my noble and learned friend the Lord Chancellor, is to ensure that in every adoption application the court has before it a report from the local authority where 1449 the adoption has not been arranged by an adoption society—I repeat, where the adoption has not been arranged by an adoption society. Under the present law, there is no requirement to give the local authority notice of an application where the applicant or one of the applicants is a parent of the child, or the child is over school-leaving age. These exceptions are now removed so that the local authority can investigate the application and report to the court in every case. That is the purpose of the Amendment.

§ On Question, Amendment agreed to.

§ Lord WINTERBOTTOM
This is only a drafting Amendment. The intention of it is to replace Section 8 of the 1958 Act relating to the making of interim adoption orders, which is repealed by the Bill.

§ Amendment moved—

§ After Clause 16, insert the following new clause:

§ Interim orders

§ ".—(1) Where on an application for an adoption order the requirements of sections 11(1) and (Need to notify local authority of adoption application)(1) are complied with the court may postpone the determination of the application and make an order vesting the legal custody of the child in the applicants for a probationary period not exceeding two years upon such terms for the maintenance of the child and otherwise as the court thinks fit.

§ (2) Where the probationary period specified in an order under subsection (1) is less than two years, the court may by a further order extend the period to a duration not exceeding two years in all."—(Lord Winterbottom.)

§ On Question, Amendment agreed to.

§ Clause 17 agreed to.

§ Clause 18 [Rules of construction regarding succession to property]:

§ 4.35 p.m.

§ Lord SANDYS moved Amendment No. 29A: Page 12, line 27, at end insert— (" (c) the will or codicil whenever executed of a person dying before 1st January 1976 and any instrument executed before that date,").

§ The noble Lord said: We are under a special difficulty in discussing this Amendment because this afternoon the noble and learned Lord the Lord Chancellor introduced into this House a Bill concerned with inheritance which 1450 has not yet been printed. I think that it would probably be for the convenience of the House if I made comment about this Amendment but withdraw it a little later, with the agreement of the noble Baroness, Lady Masham, because we shall have to take advice on a Bill, not a public document, which has been so recently introduced. The problem concerns adoption orders. Under Clause 7(4) your Lordships will be aware that it says: From the making of the order the child shall be treated in law— (a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnised)… There is a special difficulty which arises under Part III of the Finance Bill 1974. At this stage I think that it would be inappropriate if we went into any details on this particular provision, as it is at present before a Standing Committee in another place. May I mention to your Lordships that we should like to take the opportunity of discussing this matter in greater detail on Report—if, as I say, it is with the agreement of the noble Baroness that we withdraw the Amendment this afternoon.

§ The LORD CHANCELLOR
May I say at this stage that I doubt very much whether the Bill dealing with inheritance, the First Reading of which the House has approved, will have any impact on this matter. I do not think that the new Bill bears on this Amendment. I do not want the House to be misled into thinking that any startling new provision in this new Bill will affect what the noble Lords who support the Amendment have in mind. Therefore, whether they would wish it to be discussed in that situation today, or whether they would prefer it to be discussed—if it would be more convenient, since it is a highly technical and difficult matter—at a future stage, is entirely for noble Lords to decide. I think, however, that they will find that the new Bill does not impact on this problem.

§ Lord HAILSHAM of SAINT MARYLEBONE
Although this Amendment does not stand in my name, probably it would be for the convenience of the Committee if we had a short discussion on the Amendment now. I know 1451 [Lord Hailsham of Saint Marylebone.] that the noble Baroness on the CrossBenches wishes to raise a point. It is rather a technical one, and I am sure that both the Committee and the noble Baroness would gain by the assistance of the noble and learned Lord in the matter.

§ Baroness MASHAM of ILTON
May I thank the noble and learned Lord the Lord Chancellor for explaining this new Bill. I should like to leave the technical matters to the noble and learned Lord, Lord Hailsham of Saint Marylebone, to try to argue because he has had so much more experience than I. However, I should just like to say that there is great concern felt by some parents of adopted children. As the noble Lord, Lord Sandys, has explained, if one goes back to Clause 7(4) of this Bill, they have taken the children as their children. There is no difference between those children and any child who would be born naturally to them, so that the adopted child should not be discriminated against. The difficulty is with regard to younger brothers who perhaps have their own natural children and money has been left in a will by grandparents who may not even have known that there were to be adopted children, because often the grandparents themselves would not distinguish between adopted or natural children, but the younger brother, in his greed to get the whole " cake " for his own children and himself is perhaps the difficulty here. I know some parents who are very worried and who are having problems about this. Perhaps the noble and learned Lord, Lord Hailsham of Saint Marylebone, would explain this situation because I am sure he has had many cases to deal with.
Before I conclude I should like to refer to Clause 18(5), because there is something that worries me in that ; namely, the point about the age 55. I should like to ask the noble and learned Lord what happens to the grandparents who want to adopt orphaned children?

§ The LORD CHANCELLOR
I wonder whether we could deal with that on the Question, Whether the clause shall stand part of the Bill? because it is rather a different point.

1452

§ Baroness MASHAM of ILTON
I agree that it is a different point, but I did not want it to be left out.

§ 4.42 p.m.

§ The LORD CHANCELLOR
I can assure the noble Baroness that it will not be forgotten. I do not know whether it would be convenient for me to say what my understanding is of the problems raised by this Amendment, the purpose of which is to extend the changes which are made to the existing law by Clause 18. The effect of the Amendment would be to extend Clause 18 so as to cover deeds made and wills of persons dying before 1st January 1976.
Until 1949 the adoption of a child had no effect on his property rights or expectations in either his natural family or his adoptive family ; it made no difference. But after 1949 a child could benefit from a gift to a class in the adoptive family, provided that he was adopted before the instrument was made. That was the change effected in 1949. He was excluded in the same way from a gift to a class in the natural family. He could not have both. In 1958 the law was slightly modified so that a disposition in a will was treated as made on the date of death and not when the will was executed. Therefore at the present time the adopted child benefits if he was adopted before the testator died, unless the testator made express contrary provision in his will. But the law was not further modified to enable a child to benefit who was adopted into the class after the date of the testator's death, unless again the testator made express provision that any child adopted after his death should be included within the class.
So that the law of property has adjusted gradually to the proposition that the child loses his status, benefits and rights as a natural child in return for his status, benefits and rights as an adopted child. Public opinion has moved on and I think it is ready for the change that is proposed in Clause 18. After 1st January 1976 it will be assumed, in the absence of any contrary indication, that a testator accepts as part of his family a child adopted after his death. He will know that by 1st January and thereafter. The present Amendment however would go much further and would require the courts to assume that testators in the past intended 1453 to benefit future adopted children in the absence of any provision to the contrary.
It could well be however that such an interpretation would be quite contrary to the testator's true wishes. His relevant will would have been, and was, prepared in accordance with the existing state of the law as he understood it when he made his will, and if he had wished to benefit future adoptive children his dispositions could have been drafted accordingly. The present Amendment therefore amounts to the proposition that it is acceptable by legislation in effect to rewrite wills after they have come into effect. Parliament was careful in 1949 and in 1958 to make no retrospective changes in the law. The reason for this was that retrospection can cause hardship and the upset of legitimate expectations which will have been built up.
In my view the Amendment proposed is plainly retrospective and I think that by experience and practice Parliament looks with particular care at any proposal to change the law retrospectively. I sympathise with the kind of case which has been referred to me and other noble Lords ; namely, that it seems a little hard that children adopted after the will was made, or came into operation, should not be treated as if they were part of the adoptive family in respect of an interest which falls into possession after adoption. But, unfortunately, retrospection of this kind could deprive adopted children, too, of expectations.
If I may give an example, suppose that a father and mother died in a car crash in 1960 and left all their property to their baby child on trusts which had the effect of vesting the property in the possession of any child of theirs who attained the age of 21. The child is then adopted, say two years later, in 1962, in order to give the child a secure home with adoptive parents, possibly the uncle and aunt of the child. This adoption, taking place after the death of the parents, would have no effect on the dispositions made by their wills, but the effect of the Amendment would be to deprive the child of his property.
The difficulty inherent in this problem is, as I have already said, that adoption involves the loss of status as well as the acquisition of a new one. So the effect of 1454 the Amendment could result in hardship in that kind of case. I think it would also cause considerable difficulties to the courts and the reason for that is that the rules of construction which are laid down in Clause 18 operate, as the beginning of the clause says, Subject to any contrary indication ". In many cases there could therefore be a contentious issue before the courts in which adopted children and the remaindermen (who were to take in default of issue) competed for the property in question. The issue could well be whether the will contained any indication sufficient to disapply the rule of construction in favour of the subsequently adopted child. But since the Amendment applies to a will, the rules of construction of which a testator now dead could not have been aware before he died, it is difficult to see how the court could decide what the testator must have intended. There are difficulties involved in the application of the rule, if it were amended as is proposed.
I am afraid that this is very technical ground ; and I doubt whether I have thrown very much light on the problem. But at least I have endeavoured to do so, having considered the problem as sympathetically as is possible, and bearing in mind that one has, I am afraid, to find the juste milieu between the balance of potential hardships and deprivations.

§ Lord SANDYS
Noble Lords will be very much obliged to the noble and learned Lord the Lord Chancellor for dealing in such depth with this problem. I am sure the noble Baroness will be particularly grateful for such a very full reply in this regard As the House has already granted leave of absence to the noble and learned Lord the Lord Chancellor for his visit to Lagos for a very important meeting, it will be rather difficult for us to communicate again before the next stage of the Bill ; nevertheless, we shall attempt to do so. I feel it would promote further the interest of this Amendment if it were looked at in depth —which it will be—and we can communicate in due course. With those few remarks, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

1455

§ On Question, whether Clause 18 shall stand part of the Bill?

§ Baroness MASHAM of ILTON
I should like to ask the noble and learned Lord about subsection (5) of Clause 18, because it mentions the age of 55. I am wondering what would happen—and this often does happen—when both parents are killed in a car crash, and the grandparents may wish to adopt. Would this subsection mean that the grandparents could not adopt?

§ The LORD CHANCELLOR
I should like to consider this point. I do not think the provisions of the subsection would do that, but perhaps I may have an opportunity of considering the matter and of informing the noble Baroness, Lady Masham of Ilton, and possibly the House, at a later stage.

§ Clause 18 agreed to.

§ Clause 19 agreed to.

§ Clause 20 [Convention adoption orders]:

§ 4.53 p.m.

§ Lord WINTERBOTTOM moved Amendments Nos. 30 and 31: Page 15, line 4, leave out " Section 9 (ascertainment of nationality)" and insert "Sections 9 and 10 (ascertainment of nationality, and internal law of foreign country) ". Page 15, line 6, leave out " it applies" and insert " they apply ".

§ The noble Lord said: With the permission of the Committee, I should like to move Amendments Nos. 30 and 31 together, since they apply to the same issue, and I move them on behalf of my noble and learned friend the Lord Chancellor.

§ These are technical Amendments to bring the provisions of this clause into line with the relevant parts of the Adoption Act 1968, which it replaces. The 1968 Act was passed to enable the United Kingdom to ratify the Hague Convention on Adoption of 1965. The courts were given fresh power to make adoption orders which, under the Bill, will be called Convention adoption orders. Convention adoption orders have to be recognised in other contracting States, and can be the subject of proceedings laid down by the Convention. If the child to be adopted is not a United Kingdom national, the court has to apply to the child's national law relating to consents. Further points are made on this in Clause 20(6).

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§ The Amendments enable courts to determine what foreign law is to be applied where a child is a national of a State with more than one legal system. For example, the United States have 50 separate legal systems, one in each of the 50 States. If the United States were to ratify the Convention, it would not be sufficient for our courts merely to be instructed to apply the child's national law. The Bill ought to go on to enable the court to determine whether to apply the law of Ohio or Florida, as the case may be. This would be achieved by the Amendments under which, in this example, our courts will apply the United States rules of private international law for the ascertainment of the relevant legal system.

§ It may be asked why the provisions of the 1968 Act are not yet in force. I am certain noble Lords opposite, who are following this debate with such acumen, will ask this question. The Convention itself is not yet in force, although it has been ratified by Austria and Switzerland. Ratification by the United Kingdom would bring it into force between these three countries, but the necessary work on drafting rules of procedure for the courts in the United Kingdom has been suspended while this Bill is passing through Parliament. I beg to move.

§ Baroness YOUNG
I am grateful to the noble Lord, Lord Winterbottom, for his explanation. I realise this is a very complicated matter, but if I may put it in language that I understand, the 1968 Hague Convention on these matters has not yet been implemented. Am I right in thinking that these Amendments will allow the Government to implement this Convention when it has been ratified by all the member States? And am I right in thinking that this, in itself, will give much greater security to children who are adopted by people living abroad?

§ Lord WINTERBOTTOM
I do not know the terms of the Convention, which are obviously complex. But it is clear that Her Majesty's Government are looking into the matter carefully, since consideration has been suspended pending the passage of this Bill into law. I will try to inform the noble Baroness, Lady Young, as soon as possible of the answer to her questions. As she said, this is an extraordinarily complex matter. I suspect taht when one tries to compare 1457 our situation with that of the United States, one can say that we have only three systems of law, as opposed to 50.

§ Lord DRUMALBYN
Following on the question of my noble friend Lady Young, may I ask what would be the position with regard to children born of parents of other nationalities and adopted in this country?

§ Lord WINTERBOTTOM
These Amendments are brought in in order to lay down the procedure to be followed by the courts in this country under these circumstances.

§ Lord DRUMALBYN
Does this apply only at the time of adoption, or do the rights attaching to the country of the parents last throughout the adoption period? That is to say, if in other countries there are rights of reclaiming the child, will those rights persist in spite of the fact that the child has been adopted in this country under our law?

§ Lord WINTERBOTTOM
I am fairly certain that the court is sovereign in this country. I know that one of the problems behind the work of preparing this Bill arises from the fact that attitudes in Europe and throughout the world towards the paramountcy of the child are very different. In some areas the paramountcy of the parent is considered more important that that of the child. It is obviously a very complex system on which I am very concerned the noble Lord, Lord Drumalbyn, should not ask me to expand, because I am totally ignorant on the subject. But I will see that a proper answer is sent to the noble Lord.

§ On Question, Amendments agreed to.

§ Clause 20, as amended, agreed to.

§ Clause 21 [Revocation etc. of Convention adoption order]:

§ 5.0 p.m.

§ On Question, Whether Clause 21 shall stand part of the Bill?

§ Lord WINTERBOTTOM
Once again it is not my ignorance that I am about to display but the ignorance of Her Majesty's Government. There is some question about the drafting of this particular clause. As at present drafted, it is believed to be defective, but before it is 1458 decided that this is so and what should be done to put it right it is my intention to move the clause to point out to your Lordships the problems that are facing us and ask your Lordships' views, now or at a later stage, so that the draftsman can be asked to apply his skill once again to try to get a better clause for discussion by this House.
Originally when we started, a very short time ago, it had been thought that this clause ought to be omitted, but that decision must depend upon the draftsman's further consideration of the provision. May I just read into the record, in the American fashion, Her Majesty's Government's views on this particular clause when it was first drafted? The clause sets out additional provisions to deal with the consequences of the revocation or annulment of a Convention adoption order ; that is, one made in the United Kingdom, the situation considered by the noble Lord, Lord Drumalbyn. It is possible that in the light of further consideration the whole clause may be omitted. At the very least it is likely that the clause will have to be radically recast. I am speaking only rather shortly on the subject. As drafted, Clause 21(1) and (2) are concerned with the effect of the revocation or annulment by another Convention country of a Great Britain Convention adoption order ; subsection (2) provides that although the adoption is revoked or annulled the rights and duties of the natural parents remain extinguished, but they can apply to have them restored.

§ Lord DRUMALBYN
May I ask the noble Lord where they can apply to have them restored?

§ Lord WINTERBOTTOM
I would have said, obviously in the courts of this country where the ruling was first made. Since there is no equivalent provision where a Great Britain adoption order is revoked or annulled by a Great Britain court and it is arguable that no provision is necessary, it may be unnecessary to deal with the situation where a Great Britain adoption order is revoked or annulled in another Convention country. Furthermore, since foreign law on the effect of revoking or annulling an adoption order differs, and since the extent to which Great Britain is committed to 1459 recognising the effects of such a decision is open to argument, it may be unwise to attempt in this clause to deal with the situation. If an adoption is revoked or annulled in another country it is likely that that country will be responsible for the future welfare of the child and for determining questions concerning parental rights and duties.
Subsection (3) of the suspect clause deals with the effects of the revocation or annulment of a Convention order on inheritance rights. The Adoption Act 1968 did not deal with this situation, and for reasons similar to those given above it may be unwise to do so here. Subsection (4) is consequential on subsections (2) and (3) and deals with the situation where a Great Britain adoption order is revoked or annulled in another Convention country and that decision is subsequently declared invalid in this country. I apologise for throwing such a complex legal issue into your Lordships' laps, but I am certain noble Lords may well provide helpful guidance in the matter.

§ Baroness YOUNG
I think this is very much a matter on which we should like to read the record of what has been said. I find it an exceedingly complicated matter, and I do not pretend to have followed all the nuances of the argument. It seems to me that if what the Government are saying is that they will be considering redrafting the clause or possibly taking it out altogether, this is a matter on which I should like to consult my colleagues and we might return to it on Report. I think that would be the most useful way of proceeding.

§ Lord DRUMALBYN
May I make this one observation? Since the core of this Bill, as I understand it, is the pre-dominant right of the child, one would expect that that predominant right should apply to any child that has been adopted in this country, unless of course the Convention says otherwise. I hope that in the correspondence the noble Lord has been kind enough to say he will send he will deal with that point.

§ Baroness PHILLIPS
On a point of order, because this procedure seems unusual to me, perhaps the noble Lord could explain why we have what is a 1460 suspect clause in the Bill. Would it not be simpler to take it out and bring it back again when it has been tidied up?

§ Lord WINTERBOTTOM
I should have thought that what has happened has been extremely valuable. It is a difficult and complex subject ; it is difficult to reach an opinion on it. We are moving into an area where we are trying to harmonise British law with Continental law. There was an earlier attempt to do so which has not got very far. I can foresee even in my lifetime French children being adopted in this country and English children being adopted in France. For this reason I think it is wise and that the Government are right to place their doubts before this House and to invite guidance, where we may well get it at the Report stage.

§ Lord ALPORT
May I follow up the intervention of the noble Baroness, as a mere observer of this particular incident in your Lordships' House? Is it wise for Parliament to pass and put on the Statute Book a clause which neither the Front Bench of the Government nor the Front Bench of the Opposition understand? Is it not likely in the end that it will produce such complication when it comes to being interpreted in the law courts that it will not necessarily safeguard the interests of the children but rather make such confusion that it may be detrimental to their interests? Should not legislation passed in this House at any rate be comprehensible, not only to those who have to interpret it but to those who are asked to pass it?

§ Lord WINTERBOTTOM
The noble Lord, with his experience, must realise that a Committee stage is a stage when an imperfect Bill is turned into as near a perfect Act as possible. I have said that this clause is imperfect. The Bill when it comes to this House is imperfect. The function of the Committee stage of a Bill, and indeed in this House the Report stage, is to try to turn an imperfect Bill into as near as possible a perfect Act. I am confident that this Bill when it leaves this House will have received consideration not only by the Government but by noble Lords in all parts of the House, and will be sent to another place in a much better state than when it entered this House. That is surely the function of this afternoon's work.

1461

§ Lord DRUMALBYN
May I say a word in support of what the noble Lord has said? It seems to me quite evident that Bills about which Governments are uncertain are often introduced into this House. They want to have the opinion of Parliament, and, what is more they want to have the opinion of the country. Unless the Government had introduced a clause of this kind, this question would never have been exposed to examination.

§ Lord WINTERBOTTOM
I am most grateful to the noble Lord.

§ Clause 21 agreed to.

§ Clause 22 [Need to notify local authority of adoption application.]

§ 5.10 p.m.

§ On Question, Whether Clause 22 shall stand part of the Bill?

§ Baroness ELLIOT of HARWOOD
I wonder whether I may say one word on Clause 22(2). It seems it will no longer be necessary for local authorities to undertake the welfare supervision of children placed for adoption, nor is there any requirement on an adoption agency to notify the local authority that a child has been placed for adoption. If an adoption society has been approved by the local authority the society should have a certain measure of freedom of action. It is accepted that local authorities should not duplicate the work of adoption societies. Nevertheless, I believe that a local authority might have in its possession information regarding the family background which could materially affect the adoption proceedings.
I think, therefore, that it would be desirable that adoption societies should notify local authorities when children have been placed for adoption so that local authorities may make available any relevant information in their possession regarding the family background. In other words, the local authority should be kept appraised of any adoptions which take place in their area, whether by themselves or by an adoption society. I hope that that would still be done, although I understand that Clause 22 may prevent it. Perhaps the noble Lord will look at this and see whether my information is correct. It would be a great pity if local authorities were not consulted.

1462

§ Lord WINTERBOTTOM
Could the noble Baroness repeat the last sentence? I may have missed out the word "not".

§ Baroness ELLIOT of HARWOOD
As I understand it, the view of the Scottish local authority associations is that we are concerned in Scotland that adoptions should be reported to the local authorities—and perhaps their advice and help asked for—because they may have information which the adoption society may not possess. I think that it would be a pity if they were not also consulted in these matters.

§ 5.12 p.m.

§ Lord WINTERBOTTOM
We are now moving into that section of Part 1 which amends the Adoption Act 1958. I am not certain that I can wholly satisfy the noble Baroness, Lady Elliot of Harwood. The purpose of this clause is to take account of the Houghton Committee's Recommendation No. 57, which says: The agency which has placed the child should be responsible for the supervision of the child in the adoptive home, and for helping and advising the adopters throughout the period between the placement and the court hearing. Accordingly, welfare supervision of the child by the local authority, and the requirement to notify the local authority of the intention to apply for an adoption order, should be discontinued in agency cases once the new registration scheme has come into operation. That is in a situation where an agency is to deal with the adoption. But, The existing requirements for notification to the local authority and for welfare supervision should continue in non-agency cases. I hope that this satisfies the noble Baroness.

§ Baroness ELLIOT of HARWOOD
No. The point is that in the agency cases it would be helpful both to the agency and the local authority if they were also consulted. That was so under the original Act. It is being altered in this Bill. I was anxious that the noble Lord should reconsider that point, because I think that it is a mistake to change what has so far worked quite successfully.

§ Lord WINTERBOTTOM
What I should like to do is to consider what the noble Baroness has said. The matter is in fact not quite so simple as it seems on 1463 the surface. I shall study what she has said and let her have the benefit of the professional advice available to me.

§ Lord DRUMALBYN
May I, with great diffidence, express an opinion on this? There are always dangers in dividing responsibility. It seems to me, on the whole, that the Government are right to place responsibility on the adoption agency. If the responsibility were divided between the adoption agency and the local authority and it was felt in any way that that was done, it would be a weakness rather than a strength.

§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch)
The Question is, That Clause 22 stand part of the Bill?

§ Lord WINTERBOTTOM
I hope that your Lordships will forgive me, but I am afraid that this is a somewhat tangled skein. Amendment No. 28, which your Lordships have accepted, makes Clause 22 redundant. For this reason, I beg not to move. As I understand it, the clause is being replaced by Amendment No. 28.

§ The DEPUTY CHAIRMAN of COMMITTEES
Are you inviting the Committee to vote it down?

§ Lord WINTERBOTTOM
The clause is not moved.

§ The DEPUTY CHAIRMAN of COMMITTEES
We are on Clause 22. The Motion is, That Clause 22 stand part of the Bill.

§ Baroness ELLIOT of HARWOOD
Do I understand that this clause has been incorporated in some other clause? It is in the Bill, and the information which I have just given to the noble Lord refers to Clause 22. If Clause 22 is being withdrawn, the situation is quite different. Somewhere else in the Bill there ought to be the ingredients of Clause 22, of which I am afraid I am unaware. I was simply going on the papers that I have been given.

§ Lord WINTERBOTTOM
So, to a certain extent, was I. I apologise to the noble Baroness and the Committee for this incompetence. What I have discovered is that Amendment No. 28, which we have passed today, deals with exactly the same subject as Clause 22 in the Bill. 1464 Amendment No, 28 deals with the need to notify local authorities of an adoption application, as does Clause 22. Therefore, since we have already passed Amendment No. 28, Clause 22 falls by the wayside. Therefore, I do not propose to move it.

§ Lord BEAUMONT of WHITLEY
I think that the clause is before the House, and the only way that the noble Lord can not have Clause 22 is to shout it down by shouting " Not content" when it is moved, and not by withdrawing it.

§ Baroness ELLIOT of HARWOOD
I am not ungrateful for the experience of these things. It seemed to me that there was a difference between Clause 22 and what has now been put in after Clause 16. which was Amendment No. 28, which I agree we have passed. I was unaware that Amendment No. 28 had any effect on Clause 22. Therefore, I was waiting until the point came for my brief on Clause 22 to appear, and I thought it suitable to make my short speech. If Amendment No. 28 after Clause 16 is the one concerned, then all I ask is that my remarks might be looked at by the noble Lord in the context of " after Clause 16 " when considering the matter.

§ The DEPUTY CHAIRMAN of COMMITTEES
The question is, That Clause 22 stand part of the Bill? The only way that it can be got rid of is by negativing this resolution.

§ Resolved in the negative, and Clause 22 disagreed to accordingly.

§ Clause 23 agreed to.

§ Clause 24 [Obtaining of birth certificate by adopted person]:

§ 5.20 p.m.

§ Lord WIGODER moved Amendment No. 32: Page 16, line 18, at end insert "or has married, whichever is the earlier,".

§ The noble Lord said: I beg to move this Amendment as a modest extension of Clause 24 in its existing form. Your Lordships will observe that there is also an Amendment in the name of the noble Baroness, Lady Young, and the noble Lord, Lord Sandys, to omit the clause altogether. Clause 24 provides that on attaining the age of 18 an adopted person 1465 may obtain a Copy of his birth certificate. In fact, at the moment a particularly determined adopted person can obtain a copy by various devious and rather obscure means.

§ I should certainly support the proposal that those means should be made less devious and less obscure in the manner in which the clause directs. It appears to be entirely in keeping with the move towards openness and frankness in dealing with adopted children, and in ensuring that they have, at the appropriate time, full information about their background. Your Lordships will know that there has been some Scottish research which suggests that a substantial proportion of adopted children are very naturally inquisitive about their natural parents —about their real identities—and that their development is much assisted by their being given the necessary information.

§ If it is right that, on attaining their majority at the age of 18, children should have that information—-and I suggest that it is—then this Amendment merely adds to that requirement, in that should such children be married before they are 18 they should be enabled to obtain that information at a time when it might be of material assistance to them. Perhaps I may add only one other point, because I do not think that this is a matter which I can develop at any great length. I am aware that the Amendment as drafted does not help a certain number of people to whom this assistance might usefully be given and those people who are to get married after attaining the age of 16, who might very much welcome at that stage the provision of this information. Indeed, it might not only be desirable in general terms, it might also (although I suppose the possibility is remote) serve to avoid the danger of an adoptive child entering into a ceremony of marriage with a person unknown to him or her to whom marriage would not be lawful because of the degree of consanguinity. I suggest that we might properly extend Clause 24 to cover people who have attained the age of 16 and have married. If there is merit in the suggestion that it might be possible to draft this clause (I did not find it possible to draft it) in such a way as to include people who have attained the age of 16 and are going to get married, it is an improvement 1466 which I certainly would much welcome, if the Government could find some way of doing it. I beg to move.

§ Lord WINTERBOTTOM
I think that the noble Lord, Lord Wigoder, has raised an interesting point, which, when I first started looking at the Bill, I did not quite accept. But as my colleagues and I thought about it we considered that the problem was that it is not so much the knowledge of a child's parentage when it has married but when it is intending to marry. It seems a totally improbable situation that a brother and sister of a broken marriage—with both children separated and both adopted young by different couples—should meet, fall in love and wish to marry. The odds against that occurring are like the odds against winning a major pools prize. But my noble friend Lord Wells-Pestell, with his long experience of the Bench, has come across just such a case, where legal action was taken against a young couple, for whatever the offence was, incest or whathave-you. As I say, it seems totally improbable, but it has happened in my noble friend's experience. So it is obvious that where marriage is under serious consideration the actual access to information of this type is of major importance. It should be comparatively easy to control this kind of circumstance. What I shall certainly do is to consider the Amendment tabled by the noble Lord, Lord Byers, and the noble Lord, Lord Wigoder, and see whether we can help to remove the pitfall that seems to exist.

§ Lord SANDYS
Before we leave Amendment No. 32 we are under some difficulty because of a printing error, or so it appears to me. The next Amendment which my noble friend Lady Young and I have put down should have been allotted 32(A). It is not on the Marshalled List, and I wonder whether it will be for the convenience of the House if we so named it and the Amendment were called by the Chairman of Committees.

§ Baroness MASHAM of ILTON
Before we leave Amendment No. 32 to Clause 24, may I, for my personal interest, ask a question? I have two adopted children who are not related, a boy and a girl. Could those two children marry if they so wished?

1467

§ Lord WINTERBOTTOM
I can only take higher advice on this subject which I shall do and then inform the noble Baroness.

Viscount ST. DAVIDS
Perhaps I may assist the noble Baroness, Lady Masham of Ilton. I believe that the Bill does not affect the consanguinity laws and her children will be perfectly free to marry. That is how I understand the implications of the Bill. On the matter of relations who are too close—and who do not know it, of course—it is a much greater risk than my noble friend believed it to be, because it not only involves brothers and sisters (and this has indeed happened more than once in history) but it also involves uncles and nieces and several other possible relationships which are much too close to permit of marriage. It is a considerable risk where there are young children who do not know their ancestry.

§ On Question, Amendment negatived.

§ On Question, Whether Clause 24 shall stand part of the Bill?

§ 5.27 p.m.

§ Lord SANDYS
With the leave of the House, I should like to mention our Amendment which was to leave out Clause 24 as a whole. I should like to mention to the Committee a problem which occurred much earlier in our discussions on Second Reading to which reference was made. This concerns the drafting of the Bill as a whole. At that time, we said that in our view it would have been much better if the whole of the 1958 Adoption Act had been removed from the Statute Book. Those Sections of the Act now in force should have been re-enacted and fitted into the Bill which we have before us. What we have at the present under Clause 24 is a reference back to the 1958 Act. In drafting this measure before us it should have been the principle, if it had been possible, to indulge in a measure of consolidation. Certainly from the point of view of those concerned with the administration of this measure in the future it would have been of great assistance. Having said that, I should like to pass to the Amendment as such.
Our intention to leave out Clause 24 is by its nature a probing Amendment. We in no way (and I stress this point) disagree with every word that the noble 1468 Lord, Lord Wigoder, said, as to the desirability of making this matter open, public and to view, and broadly be in agreement with, practice in Scotland at the present moment. I do not know whether the noble Lord will agree with me, but it is possible in Scotland today for a young person of 17 to obtain his or her birth certificate and if, under the Bill as drafted, the intention is to bring England and Wales into line, that would appear to be highly desirable. But there are difficulties here, and I should like to sound a note of caution and suggest possible consideration of an alternative. Therefore, we suggest leaving out the clause and attempting a redraft before the next stage.
What could be more natural than for the adopted child to seek his or her natural mother once having obtained his or her birth certificate? But the mother may be married and have children, and the shock to her family may be very considerable should the child apply to the court and obtain the information leading to this discovery. I think that there is a need for discretion here, and a need to consider the feelings of all parties concerned.
It was therefore with very great interest that I read in the Houghton Report the following comment, which appears under the heading, " Access to Birth Records ", paragraph 301 on page 85. I shall only read two sentences and I hope that the Committee will accept that, because I believe that this comment goes to the heart of the birth certificate issue. It said: For many of them the late disclosure of their adoption came as a shock, and they had difficulty in coming to terms with it. It was also noticeable that two out of every five who sought this information had lost one or both adoptive parents by death, separation or divorce before they reached the age of 16, and in one-third of all applications it was the death of an adoptive parent that triggered off the search for information about the natural parents. Two-thirds of those who had sought this information had the immediate reaction that it was helpful or of some help to them, while one-third felt very upset by the information that they had obtained. This is a very sensitive issue and I think that there is an opportunity to discuss the issue as a whole in your Lordships' House. It is, in our view, a point in the measure where we ought to take note of the possibility of some alternative. I beg to move.

1469

§ Lord WINTERBOTTOM
Before I reply to the Amendment, may I remind the noble Lord of the considerable sympathy expressed with his point of view during the winding-up of the Second Reading debate on this subject? As a précis, I think it was generally agreed on both sides of the House that it would be a considerable advantage to social workers and others working in family law if the legislation in the Children Bill could be consolidated with the existing children legislation as soon as practicable. As was explained at that time, the pressure on Parliamentary draftsmen is such that we cannot predict when this highly desirable work can be done, but it will be accomplished at the earliest opportunity. That is an undertaking ; it will be done at the earliest possible opportunity. What is perhaps the most important element of this matter is that there should be one consolidated Act dealing with the law on adoption.

§ Lord SANDYS
I most warmly welcome the Government's suggestion that there should be a Consolidation Act. I hope that the House will bear with me if I say that it is 17 years since the last Adoption Act, and I hope that there will not be so long a passage of time before the Consolidation Act is passed.

§ Lord WINTERBOTTOM
I think everyone here has sympathy with the noble Lord. Indeed, at the present time my honourable friend the Minister of State at the Department of Health and Social Security, Dr. David Owen, has written to the Lord Chancellor on this point. There is communication between the Ministers concerned to see whether at an early date such a consolidation in this area could be achieved. As is clear from what has passed earlier in our discussions here, the Parliamentary draftsmen are under some pressure, but it is an important point. Both sides of the Committee agree in principle, and surely we are both agreed that 17 years is far too long to wait, on a point like this.
To return to the main issue under discussion about the deletion of the clause, at the moment it is neither very easy nor very difficult for an individual to have access to his birth certificate. All he has to know is the name with which he was born and the date of birth. This is perhaps not very often known, but 1470 that is what he has to have in order to trace back to the entry in the register of births. This information can be obtained from the adoption order which the court which made the order has discretion to supply to him under court rules, but I must say that this provision is little known. Perhaps today's discussion will be of some help in publicising the existence of this possibility. Of course, the provision as it stands is similar to that which has always existed in Scotland for adopted persons aged 17 and over. The Houghton Committee were impressed by evidence which it heard from the Deputy Registrar General for Scotland that he could not recall any complaint made by natural relatives who had been traced through the Registrar General's records. That may be so, but I think that what the noble Lord has said may well be in harmony with the thinking of Her Majesty's Government. I will see whether we can do anything at Report stage to clarify the situation more in the direction of the noble Lord's requirements.

§ Lord WIGODER
The noble Lord, Lord Sandys, will forgive me if I complete the extract from the Houghton Report which he cited, because it rather suggested that research had disclosed that a substantial number of children were unhappy after discovering information about their parents. The extract ends with these words: When seen four months later, however, nine out of ten had no regrets about having taken steps to find out this information.

§ Baroness MASHAM of ILTON
May I ask the noble Lord what research has been done into what happens to the natural mother who may be happily married with children, when suddenly, out of the blue, along comes her illegitimate child? There might be a considerable amount of embarrassment and it might put her marriage in peril. Has this been fully considered? I think that this is one of the points that the noble Lord, Lord Sandys, was making.

§ Lord SANDYS
I hope that the noble Lord, Lord Wigoder, was not suggesting that I was attempting to mislead the Committee. If the Committee feels itself to be misled, I will without any hesitation withdraw what I have said or will add to it. However, it is possible to 1471 quote at enormous length from the Report and it would probably not be for the convenience of the Committee to proceed very much further. I should like most warmly to welcome what the noble Lord, Lord Winterbottom, has just said. With the assurances that he has given, I think that it would probably be for the convenience of the House if I withdrew the Amendment.

§ Lord WELLS-PESTELL
May I be allowed to attempt to answer the noble Baroness. My understanding of the situation—and I get this from widespread opinion in professional social work—is that comparatively few persons who are adopted seek to know their origin. But I cannot give the noble Baroness or the Committee any figures on this.

§ Baroness YOUNG
This is almost certainly true from the evidence I have had. But we are not so concerned that the natural child would be upset on discovering his natural parents, although a case has been brought to my attention in which this could be possible. In that case the child wished to find out about her natural parents, and fortunately went to the local authority to do so. The social worker who had been familiar with her circumstances for some time made the investigation, and it subsequently transpired that both her parents were dead. Therefore the child could only be taken to see the grave of her mother. This could be a very disturbing and upsetting experience, so I do not think one can be certain that it will not upset the child in question. But what we should like evidence on is the effect on the mother. This seems to me the difficulty, particularly following the point made by the noble Baroness, Lady Masham of Ilton, because a mother could have given her baby for adoption, subsequently married and had another family and perhaps said nothing at all about the baby, and could then have found at the age of 40 or so that the child turned up. This could be a most distressing experience for her and her family. This is the balance that we have to weigh in this matter, and it is for this reason that my noble friend Lord Sandys and I are so concerned about this clause.

§ Lord WELLS-PESTELL
I accept what the noble Baroness says, but it is impossible to produce any legislation that 1472 can prevent this kind of situation, unless there is a law which clearly sets out that if a person is adopted he is not entitled to find out who his original parents were. This would be a way of dealing with it, but it would be a wrong way. The proper way of dealing with it—and this is happening more and more—would be for persons who adopt children to be encouraged to tell them at a much earlier age. I understand from the research done into this matter in recent years that this is happening. The only way of preventing a distressing situation, when a couple adopt a child, is to tell it when the child is capable of understanding—at three, four or five. If the child says anything, they then say, "You see, we selected you because we wanted you." This is the attitude which is taken by a good many parents today. But if they do not do this, one sees a problem. But I believe that people who adopt children these days have a much more intelligent view, and deal with this problem when they are quite small.

§ Baroness YOUNG
I thank the noble Lord for that reply and I see his point that the only alternative would be to take out the clause and make it impossible for someone to find out about his natural parents. I wonder whether the noble Lord would consider two points. First, the effect of this provision is to be retrospective, and parents who have given their children for adoption could now find they appear. It seems to me that whatever happens this clause ought not to be retrospective, and that any mother giving her child for adoption ought to know of the possibility that the child could find out later about his or her natural parents. The second point would be so to amend it that, far from being able to go to the Registrar General to find out, there would be something added to the effect that the adoptive child seeking his natural parents should get in touch with the local authority social services department or some appropriate person, so that there is somebody between the Registrar General's Department, and the child and the natural parents.

§ Lord WELLS-PESTELL
The noble Baroness's comments and observations are always ones which should be looked at. I wonder whether the noble Baroness would be prepared not to press this 1473 Amendment, or to withdraw it. I am sorry if that has already been said—I was not aware of it. We would like to pursue what she has just said, and perhaps as a result we can come to some sort of satisfactory arrangement.

§ Baroness MASHAM of ILTON
Before we finish on this point, it might be advisable for social workers to inform the natural mother that it is possible in 18 years' time or whenever the adopted child gets curious, for the child to arrive on the doorstep to have a look at her. This would enable her to tell her husband that she has had an illegitimate child, so that he will know about it. This is where the danger lies. When a man realises that his wife has had a child before their marriage, his pride might be hurt and the other children of the marriage might get a shock. I know of a case where this happened and the illegitimate child suddenly arrived, at the age of about 35. The child was the husband's, and his wife got a terrible shock and almost had a nervous breakdown. So there is a danger in this sort of situation.

§ Lord WELLS-PESTELL
If I may say so to the noble Baroness, we have to bear in mind that not a single Act has ever been passed in this land of ours that has not had some disadvantage, in the sense that no Act can possibly cover every situation. We will obviously take note of what the noble Baroness said. This is not just an idle remark of mine. One has to bear in mind that it is quite impossible to make every law completely watertight. If we did that, we should be able to dispose of many of our courts of justice, and certainly of the Appeals Court.

§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Royle)
About five minutes ago the noble Lord, Lord Sandys, begged leave to withdraw the Amendment. The question is that Clause 24 shall stand part of the Bill.

§ Clause 24 agreed to.

§ Lord HYLTON
May I briefly come back to the question of consolidation, and ask the noble Lord, Lord Winterbottom, and the Government whether they agree that consolidating the law on child care and fostering is just 1474 as important as consolidating the law on adoption?

§ Lord WINTERBOTTOM
That I think we have passed. I do not quite know the procedure, but we will naturally give it consideration.

§ Clause 25 [Restriction on arranging adoption and placing of children]:

§ 5.47 p.m.

§ On Question, Whether Clause 25 shall stand part of the Bill?

§ Baroness ELLIOT of HARWOOD
Subsection (1) of Clause 25 is about relationships, and says: … the adoption of a child, or place a child for adoption, unless the proposed adopter is a relative of the child. I understand that the relationships are to be very closely defined. It has been suggested to me that these ought to be a slightly wider range of relatives than that which is being included in the Bill. To go as far as first cousins, for instance, might be a good idea. There are sometimes difficulties in finding relatives, if it can be only grandfathers, grandmothers, aunts or uncles. It may be that those relatives of the child do not exist. I suggest that having a rather wider range of relatives included in this clause might be considered.

§ Baroness FISHER of REDNAL
Before my noble friend replies, might I suggest to him that some godparents act in a very responsible way to their godchildren and might be even more responsible, in some cases, than the relatives. Would it be possible to think in terms of a relative or a godparent?

§ Lord WINTERBOTTOM
We are at the moment occupied with the exercise of amending the 1958 Act. To answer the noble Baroness, the situation is that relatives, as defined in the 1958 Act are: grandparent, brother, sister, uncle or aunt, whether of the full blood or half blood or by affinity …". I hope that that answers the point.

§ Baroness ELLIOT of HARWOOD
I should like to suggest adding cousins.

§ Lord WINTERBOTTOM
In that case, perhaps the noble Baroness will put down an Amendment at the Report stage.

1475

§ Baroness ELLIOT of HARWOOD
Yes.

§ Clause 25 agreed to.

§ Clause 26 agreed to.

§ Clause 27 [Restrictions on removal of child pending adoption]:

§ 5.51 p.m.

§ Viscount ST. DAVIDS moved Amendment No. 33: Page 18, line 29, leave out ("five") and insert (" two ").

§ The noble Viscount said: In moving Amendment No. 33, I should like to speak also to Amendment No. 34. Although I have subsequent Amendments also altering various periods, I should like to leave those until later, because although the arguments in those cases are roughly similar, there are some differences. If I can make my main remarks on these two Amendments I shall be able to shorten my remarks on subsequent Amendments. I must say that I feel great sympathy with all who have had to deal with this most incredible Bill. It is real morass and real jungle. One can get into perfectly gorgeous tangles. What is more, there are a large number of different interests concerned. Some of them are extremely young and unable fully to speak for themselves ; a number of them cross one another, and all of them are very sensitive. So to arrive at absolute justice in this matter is, I think, very difficult indeed.

§ I am speaking on the subject of some time clauses; and time is one of the most difficult things of all to consider because it means different things to different people. We all know that according to an ancient saying (which I hope is wrong): " Time has no meaning to the law". I have the feeling that there is some truth in this, because I was once involved with my noble relative, Lady Loudoun, and others in a family law case which ran for 53 years. When I was appealed to do something about it, I finished the whole case in 14 days by calling a tea party and asking my relatives whether they wanted their rights or their money. Not surprisingly, they wanted their money. We then divided up the kitty between us and asked the Chancery Court to pay it out. The lawyers were horrified ; but they agreed and we got our money. This shows that time is valu-1476 able, even when it comes to grown-ups and the law.

§ Grown-ups feel time very differently from children. I am sure that all of us have taken out insurances for our future, have taken on mortgages and have taken on all sorts of things whose benefits may not arrive for years. People have built houses, thought out schemes for retirement and—until these days—have planted trees and have done all sorts of things. They have expected the benefit from those things in a number of years. But this is not how time appears to children. If you go to a child—and I am sure that you all have done so—and say, " I shall give you this or that or tell you this or that when you are a little older", the child comes back a week or a fortnight later and says, " Am I a little older yet?" I am sure this has happened to all of us ; and that is how time seems to children.

§ The important thing in this clause is how long it takes a child to settle down in a new family. It is very hard to say ; it depends on all sorts of things. It depends how much mental shock the child has had and it depends a great deal on the age of the child. You may take a newly-born baby and put it in another family and it will settle down in weeks— not months or years. On the other hand, if you take a very disturbed teenager and put him or her in another family, then, given really good parents and given some luck, he may settle down ; but the chances are that he never will and that you will have trouble of some sort for the rest of his life. To say how long it will take a child to settle is difficult.

§ One can say, however, that a period of two years is a period during which most children will settle to a large extent. If they do not settle in two years, then you can say that at least they have started to settle, that they are well on in settling. That is why I put down this period. We have in the Bill a period of five years. What happens if a parent comes to remove a child in four years or in three years? If the child has settled down, then it is going to unsettle the child and it may take another period of years before the child can settle down for the second time. It will probably take longer the second time than it did the first time. Are you going to disturb that child's settling down? If a child has even 1477 half started to settle down in two years, are you going to stop the process and make the child start all over again from the beginning?

§ In the interests of the child I think it is most important that this period be much shorter than five years. This is new ground in many ways so far as the law is concerned. To some extent we do not know where we are. It is because we do not know where we are that a little later in this clause there is power to change this period. What Her Majesty's Government are saying is that they do not know. They are putting a period into the Bill but they may wish to change it later. They put it at five years now, but they may wish to change it. Of course, in the clause the power to change means the power to make it longer as well as to make it shorter. Surely the power is not intended to make it longer. What the Government are doing is starting at the long end and then, if they find it beneficial, they intend to shorten it. But surely, when it is obvious that a shorter period than five years is probably a better one, would it not be better to do it the other way round? Would it not be better to leave Her Majesty's Government their power to change it if they wish, but to start at the short end? Then, if it is shown that ill effects result, make the period longer by order. Therefore I suggest that we start off in the Bill with a figure of two years and leave the power to Her Majesty's Government to lengthen it if they find ill effects which counterbalance what I believe to be the good effects of the short period.

§ It must be obvious to everybody that in dealing with children five years is a very long time. Take a small child. At what age is he when you take him to adopt?—perhaps four years or five years. This means that we are talking about a nine-year old child. If he is eight years of age, then taking the five-year period into consideration means that we are talking about a thirteen-year old, which is a very different matter. It is important for us to keep this period as short as possible. There may be ill effects. I am sure that we shall hear of some in the debate, but surely the good effects would outweigh the ill effects. We cannot produce perfect legislation, but at least let us start off in what we think is the right way. Then, if we are wrong, Her Majesty's 1478 Government have the power to put things right later.

§ Lord HYLTON
I think we all accept that the noble Viscount, Lord St. Davids, is right when he says that all time periods are arbitrary from the point of view of the child, but I am not quite sure that he has made out his case for shortening the period from five to two years. I should like to ask him, and the Government, whether if this Amendment is accepted, it will imply that foster parents will have a right to adopt after only two years.

§ Lord REDESDALE
I should like to support the noble Viscount, Lord St. Davids, on the question of reducing the period. Along with other noble Lords, I am not entirely sure what the correct period is. Five years in this case seems rather a long time. I said on Second Reading that a period which seems reasonable for a grown-up is a life span for a child. The younger you are, the longer the period seems. For very young children a long period, especially when they require rather more attention, changes their life. To be uprooted after a period of five years seems a very long time for the child. I think there is a good case for reducing the period, but whether it is right to reduce down to two years I would not know. I would not be so certain as to say that it must be two years. In Clause 30(2)(c), dealing with custody, three years is mentioned. Perhaps there might be an opportunity to try to consolidate these periods so that when, as is hoped, experience shows what are the right lengths of time, it might be easier to adjust them.
Another aspect which was raised earlier was the question of foster parents having the right to adopt after a short period. As I am a foster parent, perhaps I see the matter in a different light. I can accept that there are different sorts of fostering, but I should have thought that when it comes to fostering, the period of three years would seem to be a reasonable period.

The Countess of LOUDOUN
I am against all time limits. Children are not possessions. The dangers of replacing the concept that children are possessed as a result of a blood tie by one that they are possessed by the consequence of having lived with a person for a specific length of time, 1479 must be avoided. Length of placement is only one factor which needs to be taken into consideration when deciding about the appropriateness or otherwise of length of time limits for adoption or custodianship applications. It will be of greater or less importance depending on the child's age and circumstances.
There is an essential difference between a fostering and an adoptive relationship which has very litttle to do with length of placement. Adoption entails the creation of a new family unit and the child therefore needs to identify completely with his new family. Fostering acknowledges that the child does not exclusively belong to his substitute family and that his identification and relationships outside that family need to be nourished.
If time limits were reduced, I would fear an even greater loss of confidence in the use of fostering than there will be with the five-year limit and even more arbitrary removal of children before the prescribed period arrives. This cannot be in the general interest of children separated from their parents.

§ 6.7 p.m.

§ Baroness YOUNG
I have very great sympathy with the Government in their dilemma over time limits. I think that everyone who has thought about this matter at all realises, for precisely the reason that the noble Viscount, Lord St. Davids, gave, that it is very difficult to say what is the right time limit. I therefore think it is good that there is this provision that the Secretary of State by Order can vary the time limit. I assume that the reason for this subsection is the underlying purpose of this Part of the Bill ; that is, to meet the needs of the 5,000 or 6,000 children at present in homes or with foster parents who cannot be adopted because their parents will not give permission. The difficulty for those who feel that the time limit is perhaps too short or too long is that what is five years in the life of a baby is so much longer than it is in the life of a teenager. One would like to see a variable time limit, but that is not a practical proposition for the Bill.
On the other hand, there is the very real danger that parents will be reluctant 1480 to allow their children to be fostered if the time limit is shorter than five years. There is the idea that parents are worried about this provision because there are not only the 5,000 or 6,000 children who possibly could be adopted, but many children who come into care for relatively short periods, go out again and then again come into care. We have the classical case of the mother who becomes mentally ill and whose children are taken into care. They are not maladjusted or deprived children and probably they are very suitable to go into a foster home where they can be happily settled. But the mother comes out of hospital and asks to have her children back, and they go back. Then she becomes ill again. So there are a number of children who go into and out of care in precisely this way.
I think that, if the Committee were to accept the Amendments proposed by the noble Viscount, parents of that kind would feel immediately threatened. They may feel threatened under the five years, but I think that on reflection they would feel that they are threatened under two years, which is a very short time. After all, it is perfectly possible for someone to be in hospital, particularly a mental hospital, for two years and then to come out and, quite naturally, to want her family back again. So I think the dilemma is whether or not five years is right. It is for this reason that my noble friend Lord Sandys and I have put down an Amendment to review the working of the time limit which I think would be helpful in trying to gather some evidence on it.
I have reflected a great deal on this matter. I am bound to be quite frank with the Committee and to say that sometimes I have thought this right and sometimes I have thought it wrong ; but I came to the conclusion, in the end, that it would be better to leave the five years as it is rather than to shorten the period of time for the reason I have given. I think one has to hold a balance between different types of children and the real worries of the natural parent who may be only too anxious to have her children back but who for a variety of reasons has to have her children taken in care for a given period of time.

§ Lord WINTERBOTTOM
May I say, first, how grateful I am to my noble 1481 friend Viscount St. Davids for pointing out that, although he is moving Amendment No. 33 and speaking also to Amendment No. 34, a rather fuller discussion of the implications of varying time scales could help the progress of the Bill in future stages. I hope, therefore, the Committee will bear with me if I give a full reply to my noble friend, because this will be helpful to everyone.
I am grateful to the noble Baroness, Lady Young, for her helpful and constructive comments. I should like to underline the point that she made and say that the periods specified in these clauses were decided after careful consideration and that it was really a consensus view on time. Since this is a consensus view of people specialising in this rather sensitive but very important area of social policy, if experience proves that these time limits are not right, the Bill provides for them to be altered by Affirmative Order of both Houses. I am not quite certain how that procedure works but as this is a sensitive area, under constant observation by many organisations, local authorities and the rest, if the time limits as laid down prove unsatisfactory, then it is easy to alter them. It is merely a question of finding the best way of doing that.
I should like to make one other point. This five-year period is not so much intended to cover the needs of children who wait, but those of children who suffer in the " tug of love " cases we read about in the Press. I should like to say to my noble friend, in giving him a full answer, that there is a progression not only in the five-year period but in all the varying periods that are laid down in this Bill.
The time limit provisions, as has been pointed out by several speakers, have aroused a good deal of controversy particularly among social workers, some of whom believe that making decisions on sensitive questions of this kind should be based on the circumstances of each case and not on the passage of an arbitrary period of time. I think this is the feeling of many of your Lordships. They also fear that the time limit provisions will undermine the confidence of parents in the fostering system in particular and in the local authority social services in genera], and lead to parents either not 1482 using the services when they need them or withdrawing their children prematurely from care.
The Government respect these views, as did the Houghton Committee, and acknowledge the fact that time limits of this kind are an innovation in social work. Only experience can show what effect they will have or whether the periods chosen are the right ones. The periods in the Bill were decided upon after very careful and extensive consultation and they are graduated to mark the points at which parental rights gradually diminish between one and five years.
The first relevant time limit appears in Clause 46, which requires the parents of a child who has been in care for twelve months or more to give the local authority 28 days' notice of their intention to remove the child. This provision is not intended to prevent the child's removal but to provide a breathing space to enable the child's return home to be phased, if necessary, and to help the child, foster parents and parents to prepare themselves for the change. I should point out that this particular time limit is not one that the noble Viscount proposes to amend, but I mention it because it marks the first point ; namely, it is after twelve months when parental rights begin to diminish, albeit only slightly.
The next critical time limit is three years, at which point two new provisions begin to operate, both of which make more serious inroads into parental rights. The first appears in Clauses 30(3)(c), 34, 39 and 43, and would enable relatives or foster parents who had looked after a child for three years or more to apply for a custodianship order without the consent of the parents or of persons or bodies having legal custody, and would prevent the child's removal from the applicants before the court hearing without the leave of the court or under due authority. The Houghton Committee recommended that this period should be five years, not three, but the Government decided, after extensive consultations, that because a custodianship order is revocable and the rights of the natural parents are not completely or permanently extinguished, the period should be reduced to three years.
The second new provision, to take effect after three years, is in Clause 47. This enables a local authority to assume 1483 parental rights over a child in its care or in the care of a voluntary organisation, on the grounds that the child has been in care for three years or more. The other grounds for assuming parental rights, which are set out in Clause 47, indicate a high degree of parental failure or inadequacy. There is an added ground which requires no evidence of parental failure other than that they have been unable to resume care of their children for three years. This represents a considerable change and one which cannot, because of its serious implications for parents, be made lightly. To reduce the qualifying period, as my noble friend proposes, would make more serious inroads than could be contemplated into the rights of parents who entrust their children to the care of local authorities or voluntary organisations.
The final time limit of five years appears in Clause 27, which enables persons who have looked after a child for five years to apply for an adoption order in the knowledge that no one will be able to remove the child from their care before the hearing without the leave of the court. This provision is designed to ensure that an application reaches the court even if a parent disagrees. Under the present law, restrictions on the child's removal apply only where the parent has given consent to the application, and since the applicants must have had the child in their care and possession for the three months immediately preceding the court hearing, it is possible for parents who have not given their consent to frustrate the application simply by removing their child. This clause would prevent such a possibility where the child had been with the applicants for five years or more. In view of the finality of adoption and the serious implication for parents who entrust their children to the care of others, the Government consider that the long period of time can be justified.
My noble friend's Amendments would remove these carefully worked out graduations and deepen the apprehension felt by those who will have to operate the new law. I hope the Committee will agree that the provisions made in the Bill to enable the periods to be altered by Affirmative Order if experience shows that they are not right, provide a better 1484 way to meeting the intention of these Amendments.
I apologise for this long and " meaty " statement, but I think it will help us in considering future stages of the Bill.

§ Lord REDESDALE
Before the noble Lord sits down, could he say what consideration might be given to varying these periods according to the age of the child? appreciate the periods themselves have been worked out very carefully, but they have a very different impact, depending on the age of the child when the Order is made.

§ Lord WINTERBOTTOM
The noble Lord is expressing a view which has been put forward by many social workers: that there should be a variable time which is tailored to the individual child and its needs. Unfortunately, we are producing a Bill and all we can do is to produce a graduated approach to the relinquishment of parental rights and duties, giving phases throughout the whole period of five years during which the responsibility either goes back to the parent or is confirmed formally with the foster parents. I do not see how one could possibly legislate for varying periods in time at these three stages of what might be called the relinquishment of parental responsibility. I think the noble Baroness touched on this point in her contribution to the discussion.

§ Baroness ELLIOT of HARWOOD
I agree that it is difficult to put variable times into a Bill, but would it be possible for anyone to apply to the court in order to reduce the five years to three or to two as the noble Viscount, Lord St. Davids, suggested, given that all the conditions were fulfilled according to the standards of the social workers and the court?

§ Lord WINTERBOTTOM
I should like to write to the noble Baroness on that point. As I have said, I speak as someone who is far from being an expert, but as I see it this intermediate stage of custodianship gives an element of flexibility in the matter. I should not like to say anything more than that at the moment.

§ Baroness YOUNG
Before we leave this clause, may I ask for clarification? One of the difficulties about the time limit, 1485 which appears in this clause and in Clauses 47 and 30, is that a slightly different expression is used in each one. Clause 34(1) reads: … with whom the child has had his home for … at least three years … ". whereas Clause 47 refers to, " throughout the three years preceding ". Does this mean that a child has to be continuously in one place, either in the care of the local authority or in the care of foster parents? It seems to me that this is a very important matter in relation to the fears of parents considering allowing their children to be fostered. In the case that I quoted, a child might be fostered while the mother was in hospital ; then the mother might come out and the child come home. Should the mother get ill again and the child again go into care the whole thing could accumulate into, say, three or five years. In that case, of course, the mother could be very worried. I am quite happy not to have an answer today, but perhaps the noble Lord would like to write to me about it. I should like to know whether these different expressions of the time limit mean in fact continuous care or whether there is any significance in the use of the different words in each case.

§ Lord WINTERBOTTOM
I share the assumption of the noble Baroness, but I will write and confirm it. I would assume that the definition of the word " home " does not mean a house in which people live, but rather a family grouping which could move from, say, London to Birmingham but the child would still be in the same family group.

§ Baroness MASHAM of ILTON
This is terribly important, as it might be disastrous for the child ; it must be flexible. It may be that five years, which looks tidy on paper, just does not work with individual human beings. As the noble Baroness, Lady Young, said, " What happens now?" Parents sometimes move children from children's home to children's home. I know one social worker who is dealing with a child who has been moved 27 times. We must be very careful about this.

§ Lord ROBBINS
I did not expect to intervene in a debate of this kind. Did I understand the noble Lord to say that to introduce a variation of his series of 1486 gradations according to the age of the child was to introduce complete arbitrariness? To me that would seem to be quite mistaken. I can easily conceive of a Schedule, one column of which embodied his successive gradations according to the nature of the problem and another column which varied the age at which the gradations applied. Mathematically, it is just a question of one variable or two. I do not know whether that is right or wrong.

§ Lord WINTERBOTTOM
This is a very difficult subject to state with clarity. There are two schools of thought. There is the point made by the noble Lord, Lord Redesdale, and others, including my noble friend, that these various stages should be tailored to the actual age of the child, its personality and the background. But it is almost impossible to put that into a Bill. All that one can do is to build into the Bill sufficient flexibility, so that if we find we have made a mistake we can alter it, and this we can do by an Affirmative Resolution of both Houses.

§ Lord ROBBINS
The noble Lord has not quite taken the point that I was trying to make. I can see the two limiting cases, the case which is embodied in the draft as it stands at present and the case for complete flexibility in regard to each individual as suggested by the noble Baroness. I thought that the reference of the noble Lord was to an intermediate possibility in which there existed a systematic series of gradations, but the point at which the gradations came into operation varied according to the age of the child. That seems to me to be mathematically quite possible and not frightfully complicated.

§ Lord WINTERBOTTOM
That is quite right, and it is the reason, as we said earlier in our discussions on the Committee stage, for tossing ideas of this kind about. At the moment the Government feel that the fact that we are not tying a rigid pattern of time scale on to the country will enable us in due course to produce an Act which is comprehensible and at the same time not too rigid. Nevertheless, this valuable discussion will not go unnoticed, and we have another stage of the Bill when we may be able to do something different.

1487

§ Lord REDESDALE
May I make the point that it is quite possible to put in a table of gradation, as, for instance, appears in the case of redundancy payments which vary according to the length of time an employee has been with a firm.

§ Lord WINTERBOTTOM
It is not quite the same thing. We are not dealing with pounds, shillings and pence ; we are dealing with human beings who are infinitely variable.

§ Lord HYLTON
We have spent a great deal of time discussing time limits, but there is one quite different aspect of this question, and that concerns the natural parents. They may have left their child in the care of a local authority or of a foster parent for quite a long period, perhaps for several years. There may have been very good reasons for this and the natural parents may have acted in a most responsible manner. Could the noble Lord who is replying for the Government confirm that the quality of the action of the natural parents will be a matter which the court will take into account when considering both custodianship and adoption?

§ Lord WINTERBOTTOM
That is implicit in the spirit of the Bill and explicit in its wording.

§ Baroness ELLIOT of HARWOOD
May I raise one other point on Clause 27 which refers to restriction on removal of the child pending adoption. It has just been brought to my notice that while children freed under Clause 12(2) and (3) of the Bill will be covered, under Clause 12(1) children will remain exposed to removal by the parent and therefore they will not be protected by Clause 27. I feel that in all cases children should not be removed except with the leave of the court. In other words, restrictions on removal of children should all be the same, whether they come under Clause 12(1), Clause 12(2) or Clause 12(3).

§ Lord WINTERBOTTOM
I am afraid that this is a complicated legal matter on which I cannot comment. I hope that the noble Baroness will allow me to study the point and give her a reply later.

Viscount ST. DAVIDS
I am glad I raised this Amendment because it is obvious we have here a large field which 1488 must be investigated. We do not know where we are. Various matters are quite clear. I very much liked the remark of my noble relative Lady Loudoun that the child is not the property of the parents ; it is a person on his or her own. That is where I started my Amendment. It seems to me that in this field we are working in an area of unhappiness. It is a field of great unhappiness whichever way round one looks at it. We cannot, in all likelihood, make everybody happy—it looks almost impossible. We may have to leave the child more open to be removed from a place where he or she is getting on well in order to placate a parent. We may have to give a child better protection, and by doing so make some natural parent less happy. It looks as if we cannot get this right so that everybody is certain to be happy ; this seems beyond our powers.
We could, however, as has been suggested by various noble Lords, be a little more flexible than is the Bill. I should have thought it was possible—perhaps by one of the orders the clause contemplates —to put in a schedule of some kind which varied according to ages. I not see where the difficulty is in this. I should have thought that that would be one of the first things to be done. I feel this is almost a certainty. Because we have had a good discussion on the matter and have brought up a good number of points of view, I think the period of five years in the Bill, if enacted, is likely to be effective legislation for a remarkably short time before somebody draws up the necessary order to change it. Therefore, I do not feel at all unhappy about withdrawing my Amendment, and beg leave to do so.

§ Amendment, by leave, withdrawn.

§ 6.33 p.m.

§ Baroness YOUNG moved Amendment No. 34A: Page 19, line 3, at end insert— ( ) Where a local authority receive notice under subsection (2) of this section in respect of a child in the care of any other local authority or of a voluntary organisation, the local authority receiving the notice shall inform the authority or voluntary organisation in whose care the child is.

§ The noble Baroness said: This is a seems to me a gap in the provisions in short and I hope relatively uncontroversial Amendment. It is designed to meet what 1489 Clause 27. It is to insert a new subsection because it appears that there is no provision for a voluntary organisation to be notified, nor for a voluntary organisation to be heard by the court when application is made for an adoption order, in respect of a child in its care, by a person with whom the child has lived for five years. I should have thought that this Amendment brings the voluntary society into line with what is being done for the local authority. I hope, too, that it also helps a local authority which may not be the same local authority as that in which the child is at present fostered, so that it too would know what the position was. I hope the Government will look at this matter sympathetically. I beg to move.

§ Lord WELLS-PESTELL
In the normal way the closeness of the noble Baroness and me is a geographical one —we do not live so far away from each other in our private lives—but politically we may be diametrically opposed. However, it is pleasing that on this occasion we can meet her if she would be prepared to consider my suggestion. This Amendment, as I see it, would require a local authority, which is informed of an intention to apply to adopt a child who has had his home for five years with the applicants, to inform either the local authority or voluntary organisation in whose care the child is. This seems to us to be highly desirable because it means that if the child had been placed by a voluntary organisation with foster parents under this Amendment the local authority would have to tell that organisation of the notice they received.
What we should like is not to accept the Amendment in its present form but for the noble Baroness to give us an opportunity of looking at it, because some consideration will have to be given to the timing of the giving of information to the caring organisation. We shall have to work that out. The Amendment of the noble Baroness makes a good impression so far as we are concerned and deals with a point that ought to be looked at. If she will allow us to do so, I hope that we can come forward with an Amendment of this kind taking into account the time factor which I think she herself will realise will have to be included.

§ Baroness YOUNG
I thank the noble Lord, Lord Wells-Pestell, for that reply 1490 and am happy to accede to his request. I see his point about the timing entirely. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ Lord WELLS-PESTELL moved Amendment No. 35: Page 19, line 19, leave out ("mentioned in that subsection") and insert (" of five years mentioned in that subsection (or the period which, by a previous order under this subsection, was substituted for that period). ").

§ The noble Lord said: This is a drafting Amendment. The clause relates to the adoption of children by applicants who have had the continuous care of the child for five years or more. Where an application has been made for the adoption of such a child the clause prevents the removal of that child from the care of the applicants without the leave of the court or other statutory authority. The Amendment clarifies the subsection—at least, I hope your Lordships will feel that it does—by inserting the period of five years, and the words in brackets will allow alterations to be made to any subsequent alterations to this period. I beg to move.

§ Lord SANDYS
The noble Lord, Lord Wells-Pestell, said he hoped that this Amendment would make the Bill more readily comprehensible, and his noble friend Lord Winterbottom in a previous comment said he felt that the Bill should be comprehensible. As the noble Lord, Lord Wells-Pestell, said, this is a drafting Amendment. I should like to stress the difficulty in drafting here. Your Lordships will be aware that we are legislating, or attempting to legislate, by reference to Section 34 of the 1958 Act. Here is a confusion which is bound to arise for those who will handle the measure at a later stage. If your Lordships will be kind enough to turn to Clause 34 of this Bill you will notice that it puts a restriction on removal of a child where the applicant has provided a home for three years. There is bound to be some confusion in the minds of those who will be concerned with this measure. It so happens that numerically the 1958 Act and the 1974 prospective Act are likely to coincide. There is a strong case here for what we have repeated earlier ; for the sake of simplicity and comprehensibility it would have been much better to move the whole of the 1958 Act off the Statute Book. 1491 Having said that, and granting the fact that this is a drafting Amendment, I do not think that at this stage I can add anything more that would be of benefit to the Committee.

§ On Question, Amendment agreed to.

§ 6.40 p.m.

§ Baroness YOUNG moved Amendment No. 35A: Page 19, line 20, at end insert— (" (6) The Secretary of State shall, within the period of two years beginning with the date of the commencement of this Act review the operation of this section.")

§ The noble Baroness said: We have already had a very long debate on the question of time limits in this clause, and I do not wish to go over all of the ground again. One of the matters, however, upon which we are all agreed is the difficulty of defining what is the right time limit— whether it is five years, or whether it should be a lesser number of years, or, indeed, whether there ought to be a variation. All that this Amendment seeks to do is to provide that after two years there should be a review of the working of this clause of the Bill. It may well be that the Government have this in mind, because under subsection (5) there is provision to vary the period of time. Presumably the Government will vary the time period only after having had evidence regarding how the Act is working. Nevertheless, I think it would be helpful to know that the Government intend to review the working of the Act within a given period of time so that all of us—because I think we are all uncertain as to whether this is the right time limit—may have some evidence upon which to make a judgment on any future time limit. I beg to move.

§ Lord WELLS-PESTELL
I am most grateful to the noble Baroness for her comments and observations on this Amendment. If I say that I think that the Amendment is unnecessary, I do not intend to be critical or unkind about it, because at the end of her remarks the comments of the noble Baroness were precisely as we understand the position to be. She referred to subsection (5) of Clause 27. In point of fact, although I speak entirely from memory, I think that this kind of wording appears five or six times in the Bill because it is the inten- 1492 tion of the Secretary of State to review various matters from time to time. Therefore, I would say that as it is the intention, behind the particular wording to which the noble Baroness has made reference, of the Secretary of State to look at these matters and at other matters from time to time, I feel that in the circumstances the noble Baroness may agree that as revision is provided for in a number of places in the Bill, it is unnecessary to press her Amendment.

§ Baroness YOUNG
I do not intend to press this Amendment today ; I wanted to obtain an assurance from the Government. Before the next stage of the Bill, perhaps the Government might consider whether they could tighten up the expression " from time to time ". The anxiety which has been expressed in your Lordships' House about the period of five years suggests that we do not want to wait for, say, ten years to find out whether or not this is the right number of years. No doubt the evidence will come forth fairly quickly. If parents are reluctant to allow their children to be fostered for fear that they will be adopted, we should want that kind of matter to be looked at quickly. Therefore, I hope that we shall be told after what period of time the Government intend to review the working of the time limit.

§ Lord WELLS-PESTELL
May I say with respect that the noble Baroness has made a very strong point. At this particular stage, certainly the Government do not want to be tied to a period of two years. It could be sooner ; and, of course, it could be later. We must give the Bill some passage of time to find out how it is working.

§ Baroness YOUNG
I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 27, as amended, agreed to.

§ Clause 28 agreed to.

§ Clause 29 [Payment of allowances to adopters]:

§ On Question, Whether Clause 29 shall stand part of the Bill?

§ Lord SANDYS
We come now to the section of the Bill which deals with the payment of allowances to adopters. Before I say anything else, there is a very 1493 clear distinction in the Houghton Report between the method by which one deals with guardianships and the method by which one deals with adoptions. May I respectfully draw your Lordships' attention to Chapter 6 which deals with guardianships. Chapter 4, " Adoption: Eligibility of Adopters, Who may Arrange it and Should it be Subsidised", is a special chapter which is concerned with this clause. In this regard your Lordships would be very well advised to take note of recommendation 17 of the Report. Recommendation 17 says that: The law should be amended to permit pilot schemes of payment of allowances to adopters under the general oversight of the Secretary of State. Once again the proposed legislation is by reference to the Act of 1958, and in the Amendment we suggest that the Act of 1958 should proceed unamended. We quite understand the reasons which lie behind this clause, but people who are applying to adopt and who say that they fully accept responsibility for the child surely include financial responsibility as well as the other responsibilities which are concerned with adoption. In the case of an adoption rather than a guardianship, it seems a little curious that a special proposal should be made. It is interesting to note that the recommendation is very tentative. It is, to permit pilot schemes of payment of allowances to adopters ". It is a probing Amendment to discover the background thinking of the Government, and without further ado I beg to move the Amendment.

§ Baroness MASHAM of ILTON
May I say that I agree with the noble Lord, Lord Sandys, in the way that the Bill refers back to the 1958 Act. I think it would be far better if the Government were to define more clearly what it means. May I ask the noble Lord, Lord Wells-Pestell, whether I am right in thinking—if I am, I do not agree with the Amendment; I agree with this clause —that the clause deals with children who are difficult to place. Some of these children may be severely disabled. Anybody who knows about severely disabled children will know that they incur a great deal of extra expense. If I am right in this respect, I would agree that this clause should stand part of the Bill.

1494

§ Baroness ELLIOT of HARWOOD
May I support the Amendment which has been proposed by the noble Lord. When a child is living with its family it will want to feel part of that family. If special allowances are given to that child it will always feel that it is going to be a financial burden on the parents, whereas if it is treated like all the other children, especially if there are special circumstances, such as those which the noble Baroness mentioned regarding handicaps, one could still obtain family allowances or grants. In the normal course of events, the child would therefore feel that it was part of the family. They could even obtain tax relief or something of that kind. I would prefer the financing of this work to be part of the ordinary family finance instead of being a special allowance for, let us say, little Johnnie, whereas now little Johnnie is part of the whole family. Therefore I prefer the suggestion which has been made by the noble Baroness, Lady Young, that we should delete this clause and think of a different way in which to finance this matter.

§ Lord WELLS-PESTELL
I hope I shall be able to satisfy the noble Baroness that this is desirable and that she will not press this Amendment. In some part the noble Baroness, Lady Masham of Ilton, has contributed towards the case that I should want to make myself. One has to bear in mind that there are many factors. There are many children in care. One of the purposes of this Bill is to try to bring them out of care and give them normal family life. One hopes that one puts them in the right kind of family ; one hopes that they will grow up with the right standards and attitudes and values. There are many people in our community who I think, and I am sure noble Lords present think—and the noble Baroness opposite has had a lot of experience and she will say the same—would be prepared to adopt, but it would impose a serious financial burden on the family.
There are two factors that I want to bring to the attention of the Committee. One was raised by the noble Baroness, Lady Masham. There may be a physically or mentally handicapped child. Some of the mentally handicapped children are very lovable. They are a delight, but they are a liability financially. There are 1495 people in the community, as we all know, who are prepared to adopt them, but the finances of the family may be such that they cannot afford to do it. If I may say so with great respect, family allowances in themselves would not be sufficient. One has only to look at the amount that is paid to people who foster children. The amount they get is vastly superior to the family allowance. I am speaking entirely from memory, but I think the average can be a little over £5 a week.
Then there is the other very real factor that one can get in care a whole family of two, three or perhaps four children, and it is possible to find childless couples who will take two or three children and save the family from being split. This can be a highly desirable thing. Many people feel that a lot of delinquency stems from the break-up of families at this time. We are saying that this should not be something that is done automatically. All we are saying—and the noble Lord, Lord Sandys was very fair about it; he quoted the Houghton Report—is that we want to get certain voluntary adoption societies to undertake experiments. I am sure they are doing it now. Probably they ought not to be doing it, but I am told that this sort of thing is happening, and all we are asking is that your Lordships should permit this to be done as an experiment to see whether it makes a useful and valuable contribution to the adoption of children. I hope I have said enough for the Committee to say that this ought to be done as an experiment.

§ Lord SANDYS
I am much obliged to the noble Lord, Lord Wells-Pestell, for giving the Committee such a full reply in regard to what I might call the tentative detailed proposals which the Government have in mind. I would more than readily accede to his request to withdraw this Amendment if he could give us one further assurance ; that if we desire to table an Amendment at Report stage he will willingly look into the matter at a later stage.

§ Lord WELLS-PESTELL
Of course one must give that undertaking. It is the right and privilege of every noble Lord to table Amendments. If, between now and Report stage, something arises in the minds of the noble Lord or any of his 1496 noble friends that has not been discussed or touched upon today, if he could mention it in order to save time at Report stage we could discuss it at the highest level. I am grateful to the noble Lord, because what is proposed from an experimental point of view would be a useful and valuable piece of research.

§ Clause 29 agreed to.

§ Lord STRABOLGI
It may be convenient to your Lordships if the Committee now adjourns, and I therefore beg to move that this House do now resume.

§ Moved accordingly, and, on Question, Motion agreed to.

§ House resumed.