§ 6.28 p.m.
§ Report received.
§ Clause 1 [Establishment of adoption service]:
§ Baroness YOUNG moved Amendment No. 1:
Page 2, line 12, at end insert—
(5) The "Adoption Service" shall be approved by the Secretary of Stale who shall have regard in giving his approval to the following—
§ The noble Baroness said: My Lords, I have put down this Amendment again 1051 because when we debated Clauses 1 and 3 on Committee we had a very long discussion about not only the particular issues involved in those two clauses but on the question of the qualifications of staff to do this important work of adoption. The purpose of this Amendment, which I completely accept may be incorrectly drafted, is to make it possible, so far as it is possible, to ensure that whatever standards are applied to voluntary societies will apply also to local authorities. It is for that reason that we have taken from the Bill the exact wording that applies to voluntary societies and made it apply to local authorities. I was for a very long time in local government, and I appreciate that some local authorities may feel this to be completely unnecessary; but I believe that realism will lead one to recognise that local authorities will vary one from another in the standard of work that they carry out. Therefore, I think it necessary that we should make quite sure that the standard of work that we should expect, and rightly, of a voluntary society which has to be approved by the Secretary of State should apply to a local authority. I say this because of the people who are going to be concerned. Throughout all our deliberations on this Bill, we have all recognised the importance of the welfare of the child. It is, after all, the child who is to be considered. I do not believe there is any more important work for a child than that of the adoption service. Most adoptions take place in babyhood and, therefore, it is literally true that the whole of a person's life is changed at the moment of adoption. It is therefore important beyond measure that those doing this work should be properly qualified.
§ The first reason for the Amendment, therefore, is that one cannot be sure of the situation unless one knows what standards are to apply to local authorities. When the Secretary of State gives approval to a voluntary society he will take into account the number and qualifications of the staff, and the same should apply to a local authority. This is not only enormously important for the child; it is equally important that the public should be reassured that a standard is being set throughout the country on this matter. In areas where it is difficult to obtain staff, it is necessary to know 1052 that work of this kind is not being done by someone whose life's experience has perhaps been in some other part of the Social Services Department, such as old people or care of the mentally handicapped—good as social workers in those spheres may be in their own field. So this Amendment is designed simply to give equal treatment to local authorities and to voluntary societies; to ensure that those undertaking the awesome job of adoption are suitably qualified, that the service is good throughout, and that the public can be reassured.
§ Before the noble Lord, Lord Wells-Pestell, replies, may I say (at this stage of the afternoon he must be feeling a little tired having dealt with the whole of the Social Security Benefits Bill beforehand) how grateful I am to him for his letters and for the help he has given me on these matters. In putting down Amendments on Report we have considered the many points that have arisen on Committee and have chosen to deal with only those which we believed to be of great importance for the good of the Service. It is our view on this side of the House that this is such an important Bill, with such farreaching consequences for a number of children, that we need to give it our deepest consideration, and to try to do what we can in a constructive spirit to close any gaps we may have identified, and to try to tighten up some of the provisions, in the interests of the children concerned. My Lords, I beg to move.
§ 6.33 p.m.
§ Lord WELLS-PESTELL
My Lords, may I first of all say that I am grateful to the noble Baroness for her kind remarks. I am sorry that some of the letters I promised to send her on various matters she raised in Committee were not sent to her sooner, and I regret she had to have one of them today. But we on this side recognise the value of her contribution and I would say, if it is not going to give offence to anybody on the Front Bench opposite, that we could not have a more experienced person in this field working—not against us but with us to do what we all want to do; namely, to establish the best possible Children Act. I do not think that any of us when we embarked upon it believed that we were going to run into so many difficulties. I read this Amendment with 1053 some interest and believe it has a great deal of merit. It is, however, an Amendment of perfection. As I look at its four provisions I wonder whether it is in the last analysis realistic.
The object of Clause 1 as drafted is to secure that an adoption service is available everywhere throughout the country —not in certain parts, where it is good, but throughout the land. Subsection (1) places a duty on every local authority to establish and maintain such a service, and for that purpose to provide the requisite facilities, or secure that they are provided by approved adoption societies. The facilities to be included in this service are described in subsection (2) of the clause. The intention of the Amendment would appear to be to place a duty on the Secretary of State to "approve" the adoption services maintained by local authorities under subsection (1), having regard to the "adoption programme" (which is not defined), the number and qualifications of its staff, its financial resources, and the organisation and control of its operations. Since the bringing into operation of Clause 1 will place a duty on the local authorities to provide an adoption service, and as some three-quarters of the relevant authorities already provide some kind of adoption service, it is presumably not intended to prohibit local authorities from providing such a service until they have obtained the Secretary of Slate's approval. Presumably therefore the underlying purpose of the Amendment is to secure that the adoption services provided by individual local authorities are monitored by the Secretary of State. I am not clear whether the Amendment is so far watertight.
However, may I deal with the proposal that the Secretary of State should be required to "approve" in detail this particular part of the local authorities' social services provision. It is wholly inconsistent with the statutory duty laid on the authorities to carry out a wide range of functions involving comparable responsibilities to those of the adoption service. The Amendment seeks to place a special statutory duty on the Secretary of State In relation to the adoption service. All these functions are carried out under the general guidance of the Secretary of State, who accordingly has adequate powers to set guidelines both for the methods to be adopted and for the 1054 staffing and other provisions to be made. Having regard to the statutory duties placed on them, and the guidance given to them by the Secretary of State, I submit that the authorities themselves are in the best position to judge, in the light of competing priorities, how to make the best use of the financial and manpower resources available to them; and they are of course directly accountable to the public for the services they provide.
I believe I explained during the Committee stage debate on 4th February that my right honourable friend the Minister of State for Health, Dr. Owen, in recent discussions with representatives of the local authority associations assured them that there would be detailed consultations with local authorities about the proposed timetable for implementation of the provisions of the Bill, particularly those with implications for manpower and financial resources. The Department of Health and Social Security will be continuing its discussions with local authorities about the estimated additional costs of an adoption service on the lines proposed in the Bill, and the need for recruitment and training of additional staff that may be needed, particularly by the minority of authorities that do not at present provide an adoption service.
Having regard to the pressure on social services departments, the Government would not wish to press for early implementation of the provisions for an adoption service against the judgment of local authorities. I can assure the noble Baroness and noble Lords that, through its officers in the field, the Department's Social Work Service will have an important part to play in guiding and assisting local authorities to develop and improve their adoption services as an integrated part of the services for children and families. There may not be many Members of your Lordships' House who really know the value of the contribution which is made by the Department's Social Work Service. The noble Baroness knows the value of its contribution and so do I, and there may be others who know about its value. However, as I tried to explain before, they are already in post on a regional basis and are available. The task of the Social Work Service was described in a Department Circular which was issued in 1971 as 1055 fulfilling the role envisaged by the Seebohm Committee. If your Lordships will bear with me—I am repeating myself, because I quoted from this Circular in Committee—the role envisaged by the Seebohm Committee is:To advise local authorities to promote the achievement of aims and the maintenance of standards and to act as a two-way channel for information and consultation between central and local government.Their advice will be available to voluntary adoption societies which are preparing themselves for the new approval procedure, as well as still being available to local authorities.
I do not know whether I have satisfied the noble Baroness by what I have said, because she is probably thinking that we have been through all this before. And the noble Baroness is quite right; we have. However, I do not think that there is any other answer. I do not believe that her Amendment is realistic. As the noble Baroness probably knows, I do not say that in any unkind way. Nevertheless, I think that her Amendment is defective. I believe that she herself began by saying that it was defective. All I hope is that, as there is nothing between us, since we both want to see the same thing, she will feel able not to pursue her Amendment in the light of our understanding of her wishes and our own needs.
§ Lord HYLTON
My Lords, is the noble Lord, Lord Wells-Pestell, able to say what evidence there is that the 25 per cent. of local authorities who so far have not provided adoption services will do so? I can quite readily understand the position if he cannot give me that answer now. However, I should be grateful for an answer sooner or later.
§ Lord WELLS-PESTELL
My Lords, my recollection is that it is nothing like 25 per cent. of local authorities who have not done so. I thought it was about 27 local authorities out of the total number. This is my understanding of the situation, but I may be quite wrong about it. I was hoping that if I went on talking long enough I should get the reply now, so that I could tell the noble Lord and save imposing further written work on the Department. The noble Lord is 1056 quite right. It is about 25 per cent. I had not realised it was as high as that.
§ Baroness YOUNG
My Lords, by leave, may I say that I am very disappointed by the reply of the noble Lord. Lord Wells-Pestell. I appreciate that he had thought about it a great deal. Indeed, both of us have thought about it a great deal. In effect, what he is saying is that the same high standards which will be imposed upon voluntary societies—and I entirely agree with this—when they seek approval by the Secretary of State and when, as they will be required to do under this Act, they have to be approved every three years in order to make quite sure that the standards they apply are kept to, will not necessarily apply to local authorities. I think it is a double standard which will be applied. But perhaps that is not the most important issue. I think that those who will suffer will be the children in the bad authorities. We are tacitly accepting that this evening. I think, too, that the public will be concerned about it.
My Lords, this is not an Amendment which I intend to press this evening. I have put down another Amendment today which we shall debate later on the issue of inspections. At any rate, however, what the noble Lord, Lord Wells-Pestell, has said will be on the Record for those in another place to consider if they wish to raise this matter again. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Duty to promote welfare of child]:
§ 6.46 p.m.
Lord WIGODER moved Amendment No. 2:
Page 2, line 14, leave out ("take full account of") and insert (" have regard to all the circumstances, first consideration being given to ").
§ The noble Lord said: My Lords, I beg to move this Amendment as being one of very considerable importance, because it goes to the crucial question of the extent to which courts or adoption agencies are to have regard to the welfare of the child in matters that relate to adoption. There appear to be three quite separate and distinct standards by which that problem can be approached. First, there is the standard which is applied in the 1057 custodianship Part of this Bill. The welfare of the child is to be paramount. In other words, it is to be the overriding consideration and it is to overrule any other considerations that there may be to the contrary. That test is not proposed in this Amendment or, indeed, in any other Amendment to Clause 2 which deals with the adoption part of this Bill, for the reason that it is generally accepted that it would not be applicable to adoption proceedings. It would not be applicable because this test is likely to be applied, particularly where there are proceedings under Clause 11 and it is proposed that the consent of the natural parent to adoption should be dispensed with on one or other of a variety of grounds, one of the grounds being that the parent is withholding his agreement unreasonably.
§ May I concede at once that if, on an application of that nature, it was contended that the child's interest should be paramount and should overrule every other consideration, there is a real danger that the claims of, perhaps, rather humble natural parents might be overruled in favour of the claims of adoptive parents who might be able to offer substantial material advantages to the child. That is why I think the paramouncy test is not applicable to Part I of this Bill, although clearly it is applicable to Part II of the Bill.
§ The second alternative is the one which is proposed in this Amendment. It is that courts or adoption agencies shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout its childhood. That means, I think, what it says. It means that the most important consideration to be borne in mind is the need to safeguard and promote the welfare of the child, but that it is not to overrule all other considerations. It is one of a number of factors, but it remains one which is of prior importance.
§ The third alternative is the one which exists in Clause 2 as it stands in the Bill: that the courts or adoption agencies shall take full account of the need to safeguard and promote the welfare of the child. I venture to regard the guidance given in Clause 2 as it stands as being of very little assistance to the courts and very little protection to the 1058 child. All courts are presumed to take full account of every fact which is relevant in the hearing of a case. Indeed, if they fail to take full account of a matter which is relevant it might, in certain circumstances, be a ground of appeal. To invite courts or adoption agencies simply to take full account of the need to safeguard and promote the welfare of the child is doing no more than to remind courts that they are not to forget that the welfare of the child is one of the issues that they are considering.
There are three reasons why I venture to suggest that the Amendment proposed is more satisfactory than the wording in the clause as it stands. First, it follows precisely the recommendation of the Houghton Committee, which of course gave rise to this Bill. The Houghton Committee said in Recommendation 51, in exactly the words that are proposed in this Amendment, that courts should have regard to all the circumstances, first consideration being given to the welfare of the child. Secondly, the Amendment proposed appears to be more in line with recent judicial opinion on the subject than the wording of the clause as it stands. I need perhaps cite only first, the noble and learned Lord, Lord Simon of Glaisdale, who in one of the leading cases on the subject made the observation that,
although the welfare of the child is not the sole consideration, it is a matter of great importance
Secondly, there was Lord Donovan, who said that while the welfare of the child is not the paramount consideration, it is inferior in importance to no other. Thirdly, there is the observation of the noble and learned Lord, Lord Reid, in the most recent case on the subject when, dealing with the question of whether a reasonable parent would withhold consent, he said,
No doubt the child's interests come first and in some cases they may be paramount.
§ That is an interesting observation, because it reveals at once the distinction between putting the child's interests first and making them paramount. It is an interesting observation also because that statement of the law, as indeed are the other statements which I ventured to read to your Lordships, is much more in accordance with the spirit of this Amendment than in accordance with the wording of the clause as it now stands. So we 1059 have first the Houghton Committee recommendation; secondly, the judicial opinion and, thirdly, the simple fact that the wording proposed in this Amendment puts greater emphasis on, and gives better protection to, the child's welfare.
§ I do not believe that this is really a matter of law, or of construction of law. It is really a matter of ordinary common English usage. If we were to proceed to a Division on this Amendment tonight, there would be a clear distinction in the minds of all your Lordships. Some of your Lordships might regard the Government's views on this Amendment as being paramount; some of your Lordships might give the Government's views first consideration; some of your Lordships might say, "We will take the Government's views into full account". I do not believe there is any matter of law involved; it is a question of ordinary standard English usage.
§ When this matter was raised at the Committee stage of the Bill, it was indicated that a document would be made available over the name of the noble and learned Lord the Lord Chancellor, and that no doubt has been read by many of your Lordships listening this evening. May I say that I respectfully agree with that document in so far as it makes it abundantly clear that paramountcy is not appropriate in this context, and I have certainly never ventured to suggest that it was. Where I find the document wholly unconvincing is in the reasons it gives for suggesting that the wording in this Amendment is unsatisfactory.
§ The document suggests, first, that there is no room for an intermediate position between paramountcy and taking full account. I can only say that I fail to follow the argument about that. It seems to me to be clear, as a matter of simple logic, that the wording in the Amendment is stronger and more forceful and gives greater protection to the child than the wording in the clause as it stands. Secondly, a point is made in the document over the name of the noble and learned Lord the Lord Chancellor which is really only a debating point; that if one advises courts to give first consideration to the safeguarding of the welfare of the child, courts will start to get troubled as to what they should give second, third or fourth consideration to.1060
§ I would certainly not wish to seek to adopt that argument, and I ask your Lordships to consider the difficulties that a court might be in if it were asked to take full account of the welfare of the child; whether a court would then get troubled as to what it is that it should take part account of, or a quarter account or whatever it might be. I know many noble Lords who sit as magistrates, who are accustomed to dealing with the difficult matters that arise in this context. I venture to think that the wording proposed in the Amendment, to "have regard to all the circumstances" and to give first consideration to the need to safeguard the welfare of the child, would be a test that the courts would find no difficulty whatsoever in applying without tying themselves up in the sort of contortions that have been suggested in the document to which I have referred. For these reasons, this Amendment would be of assistance in promoting the welfare of the child in adoption proceedings. I beg to move.
§ Lord SIMON of GLAISDALE
My Lords, I support this Amendment which seems to me to be a very important one indeed. I think we have all been conscious of this Bill as we have tried to wrestle with the legal niceties, to get the statutory language right and to adjust the administrative procedures. But there has been a sad wraith, pointing an accusing finger at society, which has haunted us all in these discussions, suggesting strongly that the existing emphasis is not right. I believe that in the very able memorandum, which was sent out from the Lord Chancellor's Department, it was made quite plain that the clause as drafted represents the existing law, and I think it has been shown that the existing law does not give sufficient protection to the child. I do not agree that the paramountcy test is inappropriate, but it is not before your Lordships, although I was sorry that the noble Baroness, Lady Fisher of Rednal, did not table her Amendments again.
I have no doubt at all that the Amendment tabled by the noble and learned Lord, Lord Wigoder, is an improvement to this clause. With great respect, I do not accept the argument in the memorandum that was circulated, that there is no central position between the clause as 1061 drafted and the paramountcy test. It seems to me that, for the reasons given by the noble and learned Lord just now, there is a perfectly adequate intermediate test, which one might call the primacy test, that first consideration shall be given. Indeed, there is not the smallest difficulty about that, because it is already a test known to the law. The test proposed for custodianship is for first and paramount consideration. Lawyers are frequently guilty of tautology, but that is not tautologous; a first consideration is something quits different from a paramount consideration.
The direction that social workers and courts shall look first to the welfare of the child is something quite different from saying that the welfare of the child shall be paramount. To say that the welfare of the child shall be paramount means that in case of conflict, but I think only in case of conflict, it is the welfare of the child which must overweigh all other considerations. But the direction that the welfare of the child shall be the first consideration does not mean that the welfare of the child must necessarily, even in case of conflict, overweigh other considerations. It means merely that that is the first thing the social worker, the local authority, the court must direct its mind to and, in fact, a direction that that is what most weight must be given too. That is what is meant by the "first consideration". That was what I am sure my noble and learned friend Lord Reid meant in the passage cited by the noble and learned Lord, and that seems to me to be entirely right—that where there are conflicting interests, conflicting considerations, I personally do not accept that the child's welfare should not be paramount, but at any rate it is the consideration to which most weight should be given. I therefore beg to support this Amendment.
§ Lord GORE-BOOTH
My Lords, perhaps at this stage it might be convenient for me to give a non-professional legal reaction. The Office of the noble and learned Lord was kind enough to send me a copy of the document. My reaction was the very simple one, that I do not accept the idea of paramountcy which, as the noble and learned Lord the Lord Chancellor says, does not arise any more. From the purely lay point of view, there is a difference between "first consideration" and the other alternatives. 1062 Provided that there was no objection from the legal point of view to making a distinction between "first consideration" and the other alternatives, I would prefer what is now proposed. On that simple basis, I have pleasure in supporting the Amendment.
§ Lord PANNELL
My Lords, if I come in rather late, it is not because I have not thought about this subject on previous occasions. May I say that there is no substitute for the word "paramount". It is a positive English word, with a punch from the beginning. Magistrates will not misunderstand it. They will not be drawn into tautological conclusions about "first consideration" or "primacies" and all those phrases which spring so easily to the forensic lips. I have been a magistrate, and have had to consider these things. The word "paramount" means "all other considerations being equal, this is the one you are going to give". When you give "first consideration". then the consideration of the natural parents, the consideration of the adoptive parents, consideration of all sorts of things creep into the argument. I think it would be a good thing if your Lordships' House put down a word on which there is no equivocation and which is well understood. If I speak shortly, I am sure your Lordships will understand that—
§ Lord BYERS
My Lords, if the noble Lord, Lord Pannell, will allow me to interrupt him, I am following what he is saying, but this is not the issue. The issue is what is in the Amendment, which is "first consideration", and what is in the Bill. If he thinks the word "paramount" should be in the Bill, the noble Lord should have put down an Amendment to that effect, but there is not such an Amendment on the Marshalled List.
§ Lord PANNELL
My Lords, the noble Lord, Lord Byers, is slightly off the wicket. It so happens that I have read the papers that have been circulated. This was the argument on a previous occasion which I thought, from what the noble and learned Lord, Lord Simon of Glaisdale, said, was a reconsideration of what had gone before. I also know the reservations that the noble and learned Lord the Lord Chancellor has about the word "paramount", so I am merely pressing that at least one noble and learned Lord knows his own mind on 1063 the subject. After brooding on this subject, and reading all the documents, I am still of the opinion that it is the only word which fills the bill.
§ Baroness YOUNG
My Lords, I have considerable hesitation in entering this very complicated legal argument on this Amendment. I venture to do so only because, speaking as a lay person, I think it is right that the arguments advanced by so many others involved in social work should be there for the record.
My Lords, if I have understood correctly the point made by the noble and learned Lord, Lord Simon of Glaisdale, whose memorandum I have read as well as the long letter from the noble and learned Lord the Lord Chancellor, it is that Clause 2 in effect is reenacting what is the present position. The present position in fact is not good enough, and I think this is what has worried people. I have had very many memoranda on this and other matters in the Bill. Nearly all have suggested an Amendment along these lines. This I think is not surprising, since this is almost exactly the wording of the Houghton Committee.
As I understand it, the legal point is quite simply the question whether "give first consideration to" is the same as "paramountcy". I quite accept that "paramountcy" is the wrong word to use here, and I know that this is the view of my noble and learned friend Lord Hailsham. I know that he, too, is worried about the phrase, "give first consideration to". He made this point in Committee. As a lay person, it seems to me there is a distinction. In trying to support what seems to be the concern of those involved in this work, that the present position is not satisfactory and that this provides a middle way out, I have attached my name to this Amendment. Of course, I shall listen with great care to what the noble and learned Lord the Lord Chancellor says about this, because I think it is a most important point, and one on which we must all take care to consider very carefully.
§ 7.8 p.m.
§ The LORD CHANCELLOR
My Lords, we had a trial run on these issues when the Bill was in Committee. At that stage, the Amendment was withdrawn on my undertaking to the noble 1064 Lord, Lord Byers, to consider the matter again and if possible to consult the memorandum which, as has been referred to, was accordingly circulated in fulfilment of my undertaking. I am grateful to those who have sent me their views on the memorandum; namely, the noble and learned Lord, Lord Hailsham, the noble Lord, Lord Gore-Booth, the right reverend Prelate the Bishop of Leicester, and the noble and learned Lord, Lord Simon of Glaisdale, whose memorandum I have in turn circulated. Unfortunately, those noble Lords who put their names to the Amendments have not corresponded with me, no doubt preferring the spoken to the written word.
My Lords, we now face a moment of decision on this matter, which at first blush looks only semantic, but is quite important, I think, in its consequences. My broad submission is that Clause 2 as it now stands not only reflects the present state of the law, which I am not conscious of having given rise in any reported cases to a sense of dissatisfaction with its condition, but in my sub-mission the language proposed in the Amendment would add uncertainty and confusion both to adoption agencies and the courts which would have to apply it. Clause 2. as it now stands, substantially reflects the existing law so far as the courts are concerned. At present, the court must be satisfied under Section 7(1)(b) of the Adoption Act 1958 that the adoption order, if made, will be for the welfare of the child. As case law has shown, there has been in the past doubt as to what extent, if any, the welfare of the child is relevant in deciding whether parental consent to adoption ought to be dispensed with on the ground that it is being unreasonably withheld.
In the case ofRe L. in 1962, this question was resolved by the Court of Appeal which decided that in considering whether a parent is withholding consent unreasonably the court must take into account— those are the words used in the decision —the welfare of the child, since a reasonable parent takes account of his child's welfare and the court is looking to see whether the parent has behaved reasonably. That passage was approved by your Lordships' House in the case ofRe W. and the noble and learned Lord, Lord Hailsham, said it could now be regarded as authoritative.
1065 The noble and learned Lord, Lord Wigoder, has referred to the speech of Lord Reid inO'Connor and has quoted part of the judgment. He said this:No doubt the child's interests come first and in some cases they may be paramount, but I see no reason why the claims of the natural parent should be ignored. If the mother were deeply attached to the child and had only consented in the first place because of adverse circumstances, it would seem to me unjust that on a change of circumstances her affection for the child and her natural claim as a parent should be ignored. And the adopting family cannot be ignored eitherSo that he really listed the relevant factors there, and indicated what factors should be taken into account.
So the law as it now stands provides that the welfare of the child is a factor, and in some cases a weighty factor, not only for the purpose of deciding to make an adoption order, but also for the purpose of deciding whether to dispense with consent to the making of the order. The Houghton Committee thought that that was right, but they suggested that the law established in decided cases should be expressed in statutory form, and this they sought to do, as indeed does Clause 2. But it goes further than Houghton recommended by applying the principle that the child's welfare must be taken fully into account to all decisions taken by courts and by adoption agencies. The words provide that the relevant welfare shall be, "the welfare of the child throughout his childhood". The House will note that there is the further provision in Clause 2, as it stands, that due consideration must be given to, "the wishes and feelings of the child".
The view which the Government take and which I invite the House to accept, is that the clause as it stands is more comprehensive and more emphatic than the Amendments now proposed. I say that for this reason. I will not enter further at this stage into the argument as to whether or not there is a middle ground between the clause as it stands and paramountcy. As I understand it, the proposers of the Amendment are seeking to establish the middle ground, and they put forward "first consideration" as the appropriate test. They do that in the context that they do not favour paramountcy, and paramountcy is disfavoured because it, in effect, shuts out the interest of the natural parent. That 1066 really would be quite unacceptable and, indeed, if that was accepted as the test it would render most of the provisions of the Bill in the field of adoption quite unworkable. However, as the noble Lord, Lord Byers, said, we are not discussing that issue on this Amendment.
What is clear from what has been said is that it is not intended at any rate that "first consideration" should mean an overriding consideration, and no doubt the intention is that the clause in the Bill when enacted should indicate to the court that the welfare of the child should be placed at the top of the list. But unless "first consideration" is to displace and override all other consideration, when it would indeed be paramountcy then, in my submission, the word "first" adds nothing. To make the child's welfare first consideration is clearly intended to mean that the child's interest is to be weighted. But the question of by how much it is to be weighted is not answered by the words "first consideration".
Difficulty would, I think, be caused by the requirement to marshal, so to speak, the various factors, the second and third factors coming after welfare, and it could well be that in some cases too much stress to the exclusion of the rights of the natural parents would result; in others, too little weight could be attached to the welfare approach. Furthermore, I do not regard those words "first consideration" as appropriate for adoption agencies, who may have to apply a higher standard in some circumstances—for example, in the caring for the child—and will have to take an objective view when they are advising the natural parents, as it will be their duty to do, about their own position in relation to their own natural rights.
My submission, accordingly, is that Clause 2 as it stands gives agencies at once a more flexible and a more comprehensive duty; that the words of the clause as it stands are more effective in seeking the purpose we are after; and that the use of the words "first consideration" could lead to the confusion of Judge A giving to the words the meaning of paramountcy, and Judge B merely regarding it as one of a list with no, so to speak, special weight to be given to the factor of welfare. In my view, the clause as it stands provides a clear guide to the court. It does not move the court 1067 into the field of confusion. I should like to repeat the fear that was expressed, that the use of the words might move the approach into one of paramountcy and achieve the very mischief that the noble and learned Lord, Lord Wigoder, was anxious to avoid; namely, that it might well result in a judge giving undue emphasis to the material advantage which might be offered by the adoptive parents, as against the somewhat meagre advantages which the natural parents might be able to offer in support of their child.
Your Lordships will remember that the point was forcefully echoed characteristically by the noble and learned Lord, Lord Hailsham, whose absence on this occasion I regret, because it might have been one of those rare occasions when he and I saw eye to eye on some of these matters. He spoke of the millionaire adopter who might be able to rely on "first consideration", and the approach of that language in order to ride roughshod over the rights of the relatively poor parents.
Therefore I venture, with due humility, to suggest that this Amendment is liable to create greater confusion than the words of the clause, and is no more liable to achieve the purpose we have in mind, which is clearly that the court should take full and careful account of the welfare of the child—and then there are the other provisions of the clause—but should also bear in mind the position of the natural parent.
As has been said more than once in the discussion of this Bill, adoption is, after all, a final and irrevocable act. After the order is made the natural parent ceases to have any relationship with the child at all. It is therefore imperative that the right of the parent must be given proper weight in adoption proceedings, and should play a significant part when adoption is considered. Accordingly, the view of the Government, and my advice to the House, for what it may be worth, is that the language of the clause achieves the intentions of noble Lords, but the language of the Amendment would be self-defeating and would add to confusion.
§ 7.20 p.m.
§ Lord WIGODER
My Lords, I understand the argument that the Amendment might give rise to difficulties of interpretation by the courts, but I find it difficult to accept that argument. First, because the Amendment was, in effect, proposed by the Houghton Committee, which was presided over by a circuit judge of vast experience in this area of the law, and I find it difficult to accept that that Committee would have recommended a formula which the courts would find difficult to interpret. Secondly. I have no doubt that if there were any difficulties in interpreting the words used in this Amendment, the noble and learned Lord, Lord Simon of Glaisdale, would have drawn attention to that fact, because he again, if I may say so with every possible respect, is a judge who has vast experience of this particular area of the law.
I understand from the Lord Chancellor's reply that he has two basic objections to this Amendment. First, he says it is weaker and gives less protection to the child than does the existing Clause 2. Then, a moment later, we understand the other objection is raised, that it is more likely to imperil the rights of the natural parent than the existing Clause 2; in other words, that it is therefore somehow a stronger protection to the child. The wording of the clause with the Amendment would be:… a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child …".I cannot believe that thereby the interests of natural parents will be in any way unjustly imperilled.
It may be, as the noble and learned Lord said, that this Amendment goes slightly beyond the existing law. If it does, I do not believe that it is any the worse for that. I believe that the time has come when we must strengthen the protection given to the welfare of the child, and that this Amendment does. In those circumstances, I must ask that your Lordships express your views on this Amendment.
§ 7.24 p.m.
§ On Question, Whether the said Amendment (No. 2) shall be agreed to?
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 3 [Approval of adoption societies]:
§ 7.30 p.m.
Baroness YOUNG moved Amendment No. 3:
Page 2, line 28, after ("effective") insert ("and appropriate").
§ The noble Baroness said: My Lords, I beg to move Amendment No. 3. Once again I feel very considerable diffidence in speaking to this Amendment because this series of Amendments applies to Scotland. For the convenience of the Committee, what I should like to do is to speak to Amendment No. 3 and at the same time to Amendments Nos. 4, 5, 6, 7 and 8 and also to Amendments Nos. 67 and 68, the latter of which is to "Leave out Schedule 1." My noble friend Lady Elliot of Harwood is extremely sorry that she has had to go, but she has the same engagement as the noble and learned Lord, the Lord Chancellor, and I believe it to be important. So because this is a matter about which I know the Scottish adoption societies1070
§ Their Lordships divided: Contents 55; Not-Contents, 22.1069
|Aberdare, L.||Gladwyn, L.||Rankeillour, L.|
|Atholl, D.||Glenkinglas, L.||Redesdale, L.|
|Auckland, L.||Gore-Booth, L.||St. Davids, V.|
|Harrington, V.||Haig, E.||St. Helens, L.|
|Beaumont of Whitley, L.||Henley, L.||St. Just, L.|
|Belhaven and Stenton, L.||Hunt of Fawley, L.||Sandys, L.|
|Bledisloe, V.||Hylton, L.||Seear, B.|
|Brougham and Vaux, L.||Killearn, L.||Sharpies, B.|
|Byers, L.||Lloyd of Kilgerran, L. [Teller.]||Simon of Glaisdale, L.|
|Courtown, E.||Loudoun, C.||Somers, L.|
|Cowley, E.||Lyell, L.||Swinton, E.|
|Craigavon, V.||Macleod of Borve, B.||Terrington, L.|
|Cullen of Ashbourne, L.||Malmesbury, E.||Tranmire, L.|
|Drumalbyn, L.||Masham of Ilton, B.||Vivian, L.|
|Dundonald, E.||Monck, V.||Vickers, B.|
|Ellenborough, L.||Northchurch, B.||Wardington, L.|
|Elton, L.||Pannell, L.||Wigoder, L. [Teller.]|
|Ferrers, E.||Pender, L.||Young, B.|
|Emmet of Amberley, B.||Melchett, L. [Teller.]|
|Balogh, L.||Falmouth, V.||Morris of Borth-y-Gest, L.|
|Broadridge, L.||Harris of Greenwich, L.||Shackleton, L.|
|Castle, L.||Henderson, L.||Stedman, B.|
|Cathcart, E.||Houghton of Sowerby, L.||Wells-Pestell, L.|
|Davies of Leek, L.||Jacques, L.||White, B.|
|Douglas of Barloch, L.||Llewelyn-Davies of Hastoe, B.||Winterbottom, L.|
|Elwyn-Jones, L. (L. Chancellor)||Lovell-Davis, L. [Teller.]|
§ feel strongly, I have said that on her account I will speak to the Amendments. My noble friend raised these points on Clause 3 in Committee on 4th February —Hansard, cols. 799 to 800—and the noble Lord, Lord Wells-Pestell, said he would look at the matter. I imagine that he has done so but has felt unable to return an Amendment to cover my noble friend's requirements. For that reason we have tabled these Amendments. The purpose of all of them is to make the principles of Clause 3, whereby a voluntary adoption society shall be approved by the Secretary of State when it becomes an adoption society, apply to the whole of the United Kingdom.
§ In Scotland there are nine adoption societies and all are unanimous in wanting central registration. I understand that the idea that the voluntary societies should register in every region in which they expect to operate is completely impracticable in Scotland. A national society, such as that of the Church of Scotland which has branches all over Scotland, and many other adoption societies who may work in several regions, would have to duplicate a great deal of 1071 their work and effort. The standards of the adoption societies should be set by the standards of the national organisations. Those are the ones which they would like to have approved by the Secretary of State for Scotland.
§ My noble friend Lady Elliot of Harwood has asked me to say that of course the voluntary adoption aid societies would work in the closest co-operation with the local authorities, and in this matter would continue as they do now. The difference would lie in simplification; that is to say, in the work of the societies of the local authorities. Instead of making each one work separately they would have a central registration, then each adoption society would work with the nine different regional authorities. This is a matter on which I understand opinion among the voluntary societies in Scotland is unanimous. I know that my noble friend Lady Elliot of Harwood has gone into the matter with great care. She has had a great number of representations. She feels, and not only for these reasons, that this is a matter which the Government ought to consider very seriously. From the point of view also of finding homes for those children that are hard to place, which is one of the principal reasons for this Bill, she believes it will be more effective to have a national registration scheme, with the voluntary societies working in close co-operation with the regional authorities. For these reasons she has asked me to propose the Amendments standing in her name. I beg to move.
§ Lord WELLS-PESTELL
I shall deal first with Amendments Nos. 3 and 6. Had the noble Baroness, Lady Elliot, been here, I would have said that I appreciate her wish to see these words introduced into Clauses 3 and 4, but I fear she may be acting under some misapprehension. The words "effective and appropriate" are included in existing provisions in the Bill relating to Scotland, which are the subject of several Amendments by the noble Baroness on the system of approval for Scottish adoption agencies. I can safely deal with the present Amendment without anticipating the result of the discussion which will ensue on these Amendments. The words "and appropriate" are correct in the context of the situation where an appeal system is provided, 1072 and are included in the Scottish provisions with the express intention of fitting in with the existing law in the legislation relating to the registration of voluntary social work establishments.
They would not, however, seem to contribute significantly to the wording of Clauses 3 and 4. In general terms, one could say that for England and Wales the very general term "effective" provides the framework into which detailed criteria for approval may be set, and for England and Wales to add the word "appropriate" would only duplicate this general requirement. It is, however, different for Scotland, because they do use the term "effective and appropriate" and the Bill, as I understand it, has been drawn with that in mind. I think that were the noble Baroness, Lady Elliot, here, she would want to preserve that difference. I do not know whether the noble Baroness wishes to deal with this before I go on.
§ Baroness YOUNG
My Lords, I think that under the circumstances, I should hear the whole argument before I comment at all.
§ Baroness YOUNG
My Lords, I did move Amendment No. 4 and I can say that it seems to me that what the noble Lord, Lord Wells-Pestell, was saying about Amendments Nos. 3 and 6 is correct, and that I should be happy to accept that.
§ Lord DRUMALBYN
My Lords, I think the point here is very much whether or not the other Amendments are to be accepted, because if "appropriate" is appropriate for Scotland, then plainly what my noble friend Lady Elliot wants to do is to ensure that it remains in the Bill and is appropriate to Scotland. If her other Amendments were to be accepted, she would not like "appropriate" to be left out of the Scottish side where it is already. The noble Lord, Lord Wells-Pestell, said that he did not want to see it introduced into the English side, but I think we must hear the rest of the argument before we decide the question.
§ Lord WELLS-PESTELL
I said that I did not think it necessary to do so, as 1073 far as England was concerned. But, to take the Amendments in numerical order, Amendment No. 4 appears to be designed to provide for an appeal procedure in the event of a refusal to a voluntary adoption society applying for approval in Scotland. In terms of consistency—if I may say so with the greatest respect—the Amendment should be moved only if the noble Baroness's Amendment proposing the exclusion of Schedule 1 to the Bill succeeds. The words of the Amendment are lifted from paragraph 2(4) of the Schedule and are mere duplication as long as the Schedule stands.
§ Baroness YOUNG
My Lords, I am sorry to interrupt the noble Lord again, but I spoke to Amendment No. 68 which seeks to remove Schedule 1.
§ Lord WELLS-PESTELL
My Lords, perhaps I can deal with Amendments Nos. 5, 8, 67 and 68 by saying, first, that I want to apologise on behalf of my noble friend Lord Hughes of the Scottish Office, who, I know, was intending to write to the noble Baroness, for the fact that the subject of her Amendments is taking some little lime to resolve. I am advised by the noble Lord that the organisations in Scotland which have specifically raised the question of approval of voluntary agencies have asked for an opportunity to express their concern in a discussion with Scottish Ministers or their representatives. I must tell your Lordships that these meetings have not yet occurred, and I doubt whether it would be helpful to enter into a discussion on the merits of the case meanwhile. I can, however, assure the noble Baroness, Lady Elliot, through the noble Baroness, Lady Young, that the Scottish Office is very much concerned that the matter should receive proper attention in the manner that I have indicated.
Perhaps I might be allowed, on behalf of my noble friend Lord Hughes, and in anticipation of the letter which I believe will reach the noble Baroness shortly, to suggest that this group of Amendments should be withdrawn. I hope that noble Lords opposite will feel that that can be done so that a considered view can be reached on the matter in the light of the circumstances in Scotland. I should not wish to deflect the noble Baroness from her very legitimate concern in this matter if she were here, but I believe we should 1074 accept that the Scottish Office are arranging discussions. The same considerations apply to the noble Baroness's Amendments to Clause 6 and Schedule 1, and I hope that we can deal with those on the same footing.
§ Lord DRUMALBYN
My Lords, I think that what the noble Lord has proposed is right in the circumstances. Certainly, those of us who know a little about the working of the Scottish system would like to hear the arguments. I hope that it will be possible for us at least to hear those arguments at the next stage of the Bill in this House. It may be that, even by that time, it will be difficult for the noble Lord, Lord Hughes, to announce a decision in the matter. Nevertheless, I think it is only fair that we should at least hear the arguments at the next stage of the Bill. If the noble Lord is agreeable to that, I am sure that my noble friend will be willing to withdraw the Amendments. In those circumstances, I think it would be necessary to withdraw all the Amendments, because it would not be sensible to ask the House to accept the first Amendment which affects England as well as Scotland.
§ Baroness YOUNG
My Lords, I am bound to say that I find myself in a very great dilemma. My noble friend is, for perfectly good reasons, unable to be present. She feels very strongly in this matter and I know that she would have wished to press the Amendments this evening. However, in view of the arguments which have been put up, I think that the best course is to raise the whole matter on Third Reading. I think that I should give notice of this because, in the discussions through the usual channels about the procedure on the Bill, we had thought of having a formal Third Reading, but, in the circumstances, this will clearly not be possible. This matter underlines some of the difficulties that many of us have encountered in the proceedings on the Bill.
Through no fault of our own, and through no unwillingness to co-operate in any way we can, we have once again started at a very late hour, when people who must have expected the Amendment to come early will have been disappointed. We now find that the crucial letters which my noble friend must have expected to receive before Report, as the matter was clearly going to be raised on 1075 the first Part of the Bill, have not arrived. I find this a very extraordinary situation and one which must cause us some concern. However, as my noble friend Lord Drumalbyn has said, I think that this is a matter about which we should hear the arguments on both sides. It is a Scottish matter and is not one which, in the circumstances, I feel inclined to press this evening. However, I give notice that we shall raise all these Amendments on Third Reading and that we shall, if necessary, press them to a Division at that stage.
§ Lord WELLS-PESTELL
My Lords, the noble Baroness cannot have it both ways. It is all very well for her to criticise the handling of the Bill, but she must remember that on one occasion when I went home one night there were 22 Amendments down but when I came back the next day there were 102. This has happened again this week. When I went home on Tuesday night there were, I think, about the same number of Amendments down, and around midday the next day the number of Amendments had crept up to 92. If noble Lords want the Bill to be considered very carefully it will be done, but if Amendments do not come in until a very late hour it is difficult to give to them the attention which they require. I do not hold anyone responsible, but I should like to say that this is a serious Bill and that noble Lords cannot complain if we are giving a great deal of attention to these matters.
To return to the Scottish situation, that deserves very serious consideration in terms of Scotland. Fresh representations have come in within the past two days. These discussions with other concerns take time and that affects the passage of the Bill. My noble friend has not been in a position to write to the noble Baroness. Had he been able to do so he would have written to her. We have tried to keep the thing moving, so to speak, and one must bear in mind that from the beginning everyone has said that this Bill must leave this House having been thoroughly investigated, and this is precisely what we are doing today.
The Duke of ATHOLL
My Lords. I would remind the noble Lord that approximately 50 per cent. of the Amendments are in the name of the 1076 noble and learned Lord the Lord Chancellor and are therefore presumably Government Amendments. Many of these must have been put down since the noble Lord left on Tuesday night, and I do not see that his argument on this point is relevant.
§ Lord WELLS-PESTELL
My Lords, it is relevant because they are technical Amendments which could be disposed of in a minute or two. A considerable number of others have been tabled which cannot be dealt with so expeditiously.
The Duke of ATHOLL
My Lords, there are not, as the noble Lord implied, 92 Amendments, 70 of which have been put down since Tuesday night.
§ Lord SANDYS
My Lords, the noble Lord, Lord Wells-Pestell, has dealt most courteously with many queries which we have raised but he is a prisoner, just as we are, of the Government on this measure. Our real difficulty stems from the fact that due to its complexity, especially in regard to the Scottish clauses, it was unrealistic of the Government to assume that a programme of this nature—advancing only five or six days in which to table Amendments and hold discussions with the relevant bodies—would be satisfactory to your Lordships, and clearly it has failed to be so. I hope, therefore, that the noble Lord will accept my noble friend's suggestion, and then we will look forward to a further discussion of these very complicated Scottish Amendments on Third Reading.
§ Lord WELLS-PESTELL
My Lords, that is understood. I am simply commenting on what I thought was the implication that there was some laxity on the part of the Government, which I do not accept. We are facing today, as we faced last Thursday, dislocation on the railways. Last Thursday we had to stop our deliberations early, just as we will have to do so tonight within the next ten minutes. We have been overtaken to a large extent by events and I am prepared to give whatever time is necessary, as I am sure noble Lords opposite are prepared to do. But we will not get anywhere if noble Lords opposite start suggesting that there has been a certain amount of laxity on this side of the House.
§ Lord JACQUES
My Lords, I would remind your Lordships that we are not in Committee but on Report, and I hope that it will be treated as such.
§ Lord DRUMALBYN
My Lords, with respect for that guidance, I suggest that we are really on points of order, as it were, for we are not talking about the Amendments at all. I hope that the noble Lord, Lord Wells-Pestell, will accept it from me that nothing I said was intended to throw any reflection whatever on the Government's conduct of the Bill. Our difficulty is that we reached the Bill so late this; evening. It is always the case, as the noble Lord will have learned already, that on Report Amendments seem to go down rather late. But I know of only one starred Amendment on the Order Paper and I hope that the noble Lord will allow the Bill to go through in the unruffled way in which he has been able to conduct it so far.
§ Lord WELLS-PESTELL
My Lords, I am in no way ruffled. I simply wanted to get the record straight as I saw it. May I ask the noble Baroness whether, through the usual channels, any suggestion has been made about the point at which we should stop our deliberations tonight? Does she intend to proceed beyond Amendment No. 8?
§ Baroness YOUNG
My Lords, I understood we were going to take Amendment No. 9 and then stop. In the meantime, I beg leave to withdraw Amendment No. 3.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Child to live with adopters before order made]:
Baroness YOUNG moved Amendment No 9:
Page 5, line 29, leave out subsection (2).
§ The noble Baroness said: My Lords, this Amendment arises from a matter which was discussed in Committee when, on Clause 8, my noble friends and I made the point that subsection (2) was a loophole through which a private fostering could lead to adoption. I am grateful for a letter which I received from the noble and learned Lord the Lord Chancellor about this point. It seems that the noble and learned Lord takes the same view as we do about this—that it is, in effect, a loophole in the Bill. He asks 1078 whether we can find any way of closing this loophole and at the same time allowing those rare cases—and it seems that they must be very rare—of private foster parents who have been looking after a child for more than 12 months to adopt the child. Since I received that letter I have been trying to think of the kind of case that we could have in mind and it seems that they must be very rare indeed, for Clause 8(1) refers to the question of the parents or relatives of the children or the case of a child placed by an adoption agency. The only cases to which this can, I think, refer are cases where the parent of the child has placed the child privately without telling anybody.
This seems to present us with a difficulty. I have considered this matter and I think that what we are concerned with is the offence of private adoption. Under the Adoption Act 1958, it is an offence for an agency which is not a registered adoption agency to place a child for adoption, and under Clause 28 of the Bill private adoptions are prohibited and, as I understand it, the power in the 1958 Act is not repealed. I am wondering whether we could get round the difficulty posed by Clause 8(2) which provides that loophole for private fosterings by deleting sub-section (2) and adding a new subsection to Clause 17. The new subsection would read:
Where the adoption applicants are not relatives of the child and the child has not been placed for adoption by an adoption agency, the local authority shall investigate whether an offence has been committed under Section 29 of the Adoption Act 1958.
§ I move this Amendment in this form and it is not one which I intend to press tonight because I received the letter only yesterday. It is a very complicated matter to consider and I was unable to contact either the noble Lord, Lord Wells-Pestell, or the noble and learned Lord the Lord Chancellor this morning. As I think the Government are as concerned about this issue as I am, I should like to leave it with them to consider. I very much hope that they will feel, if this Amendment is not appropriate, that they should move an appropriate one, having given the matter consideration in another place. I am sure that they agree, as my noble friends do, that it would be most unfortunate to leave this sort of loophole in 1079 the Bill, and it is for this reason that I move the Amendment.
§ Lord HYLTON
My Lords, in supporting this Amendment moved by my noble friend, I should like to make the point that there is a considerable volume of very well-informed opinion which maintains that at the moment in this country there are two classes of children most at risk. These classes are, first, the children of one-parent families and, secondly, privately fostered children. My noble friend has raised a very important point, and I hope that the Government will consider it.
§ Lord WELLS-PESTELL
My Lords, I am very grateful to the noble Baroness. I have before me a copy of the letter which the noble and learned Lord the Lord Chancellor sent to the noble Baroness only a day or two ago. The noble and learned Lord made a certain suggestion in that letter and I was hoping that the House would have adjourned before we reached Amendment No. 9, so that the noble and learned Lord could have dealt with it. Perhaps the noble Baroness is prepared to leave this matter with us, or to withdraw her Amendment. I know that the noble and learned Lord is giving further consideration to this question and that he has invited the noble Baroness to indicate to him whether she has any further Amendment to put down. Certainly I know that the noble and learned Lord wants to continue to look at this question. It is merely a matter of which is the best way to deal with it; whether it is better for the noble Baroness to withdraw the Amendment, or for the Government to try to see whether they can put down an Amendment. Having brought the matter before the House, we must resolve it in some way.
§ Baroness YOUNG
My Lords, with the leave of the House, with that assurance I am quite happy to withdraw this Amendment, and I will write to the noble and learned Lord the Lord Chancellor on this point.
§ Amendment, by leave, withdrawn.
§ Baroness LLEWELYN-DAVIES of HASTOE
My Lords, this is probably a convenient moment to conclude our deliberations.