§ 3.29 p.m.
§ The LORD CHANCELLOR
My Lords, the Bill before us represents the first piece of general legislation relating to children and their welfare for a number of years. To a large extent it is based on the Report of the Departmental Committee on the Adoption of Children, which I shall hereafter refer to as "the Committee." This was appointed in July 1969 under the chairmanship of Sir William Houghton and it reported, after his death in November 1971, under the chairmanship of Judge Stockdale. I am sure the House will be very grateful to Judge Stockdale and the members of the Committee, and to my 17 honourable friend the Minister of State for Health, Dr. Owen, whose initiative and efforts as a Private Member in the Parliament before last, and subsequently as a Minister, have done so much to enable this Bill to be brought forward now.
The main themes of the Committee's recommendations and of the Bill are these: first, there should be a professional adoption service in which Central Government, local government and voluntary agencies would all have a part to play. This is provided for in Clauses 1 to 6 of the Bill. Secondly, the law and procedure of adoption should be changed in certain respects and, in particular, by the introduction of a new procedure to enable parents to give their early consent to adoption and thus to remove a sense of uncertainty both to them and to the prospective adopters. Clauses 7 to 29 and, in particular, Clause 12 deal with this. Thirdly, there should be a status midway between that of adopter and foster parent. This is created by Part II of the Bill and the new status in England and Wales is described as custodianship, Fourthly, there should be greater protection for children in care by the extension of the powers of local authorities. That is dealt with in Part III. Part III also makes further provision for the protection of the interests of children in care proceedings before the juvenile court. The Bill takes account of the findings of the inquiry into the death of the child Maria Colwell, which shocked the nation.
My Lords, these are the main strands of the Bill. Its proposals have been the subject of wide consultations both by the Committee and by the Government. They have met with general approval, though a few are controversial. Indeed, in matters of judgment of this kind on delicate family matters, it would be surprising if there were not some divergence of view. I should also mention that the Bill extends to England and Wales, and to Scotland. Some provisions, however, do not apply to Scotland and others apply only to Scotland. The reason is that, while the Scottish law of adoption is virtually the same as the law South of the Border, in other areas the law in Scotland is very different, particularly in the field of family law.
18 My Lords, adoption law in Great Britain dates back to 1926 and was last revised in 1958. In the following ten years, the number of adoption orders registered in Great Britain rose from about 15,000 a year to nearly 27,000. There are now about 24,000 a year. Whereas, at the beginning of the 1950s, three-quarters of the children were adopted by strangers, this proportion has fallen to less than a half, most of the remainder being adoptions by parents and stepparents jointly. More of the children adopted by parents and stepparents are the legitimate children of a former marriage. This results from the increase in divorce and remarriage. Fewer babies are now being offered for adoption, but there is no shortage of suit-able couples wishing to adopt. One of the fortunate results of this is that it is becoming easier, with skill and care on the part of the agencies, to place older or handicapped children who were previously regarded as difficult to adopt.
Nevertheless, there are still children who have been virtually abandoned by their parents and who are living in the care of local authorities and voluntary child care organisations. This was highlighted in the poignant publication Children Who Wait, published in 1973. This suggested that there were about 7,000 children in care, mostly in residential homes, who were thought to need permanent substitute families. About 2,000 of these needed adoption and, if doubts about parental consent could be resolved before they were placed for adoption, their chances of finding adoptive parents would be enhanced. The other 5,000 needed something short of adoption, either securing fostering or some form of guardianship for which the law at present does not provide. The recommendations of the Committee which would help to deal with this problem are embodied in the Bill.
My Lords, if I have to select a keynote to the Bill, I would suggest that it is to be found in Clause 2, where a twofold duty is firmly laid on courts and agencies responsible for making decisions on a child's future. This is a duty to safeguard and promote the welfare of the child throughout his childhood and, in doing this, to take account so far as possible of the child's own wishes and 19 feelings, having regard to his age and understanding.
I now turn to the main provisions of the Bill and, first, to the organisation of adoption services. Part I of the Bill deals with that problem. The present law lays a power but not a duty on local authorities to make arrangements for the adop-tion of children. About three-quarters of the new local authority areas provide a service of some kind. While some of the gaps are filled by voluntary adoption societies there is no universal cover-age and, while the best of them are admirable, many adoption societies do not provide the required services for each of the three groups of people involved—the natural parents, the adoptive parents and lastly, but greatest in importance, the children. Clause 1 lays a duty on every local authority either itself to pro-vide all the facilities that make up such a service as part of its general social ser-vices or to ensure that the requisite facilities which are set out in Clause 1 exist, whether provided by itself or in conjunction with approved adoption societies.
My Lords, the emphasis of the Bill is on partnership between local authorities and the voluntary societies. It is they who originally pioneered adoption in Great Britain and some of them still set standards for their local authority counter-parts. There are to be new arrangements —set out in Clauses 3 to 6—for approving voluntary adoption societies. In England and Wales, responsibility for their approval is transferred from local to Central Government. In Scotland, approval will continue to be given by the local authorities, but the Secretary of State will have the power to call in any particular application. At present, there are 59 voluntary adoption societies in England and Wales and nine in Scotland. The functions of registration are in the hands of the local authority in whose area the society has its headquarters. However, most societies operate beyond that area and it is difficult for the authority to monitor their activities. To overcome this, the Bill requires the views of local authorities in whose areas the societies will mainly operate to be taken into account by the Secretaries of State. This will form only part of the information they will have available. They will also have before them the information given by the 20 society in its application for approval, and assessments made by their own social work services.
My Lords, I next turn to restricting independent placements for adoption. The Committee emphasised the professional skills needed to place a child for adoption and it recommended that, when all adoption societies conform to the new criteria for approval, other placements of children should in general be prohibited. Clause 25 accordingly makes it an offence for a person other than an adoption agency to place a child with a person who is not a relative for the purpose of adoption. Further, persons who are not relatives are not to receive a child for adoption, since otherwise children might be adopted from overseas without the services of an approved agency. The Bill does not, however, prevent the adoption of children by persons other than relatives. If they have been looking after the children for twelve months or more as foster parents they may seek an adoption order, even though the child was not placed with them by an adoption agency. As the law stands at present, where placements are made by independent persons or third parties the safeguards imposed by regulations which apply to adoption agencies do not operate at all.
Placement is a crucial stage in the adoption process, and the court cannot prevent a bad or indifferent placement. I know, as no doubt your Lordships do also, that some very happy adoptions have resulted from individual placements, but so long as individuals are allowed a free licence to arrange adoptions the children concerned are still at risk, and it is reassuring that the British Medical Association strongly welcome the Com-mittee's recommendations on this point.
I now turn to freeing for adoption. Clauses 12 to 16 provide for a new procedure as recommended by the Committee, who called it relinquishment. The main purpose is to separate the question of parental consent from the adoption itself and to enable the two issues to be dealt with at different stages. As the law now stands, natural parents hold legal responsibility for their children until the moment an adoption order is made in favour of specific adopters, who must indeed have a child in their care and pos-session for a period of three months, excluding the first six weeks after a baby's 21 birth, before their application can be heard by a court. Any consent given is not final until then and no question of dispensing with consent can be determined until then.
The result can cause anxiety to the parent and to the adopters, to say nothing of any older children concerned. It is also hard for the adopters to commit themselves wholeheartedly to the child at the very time when the child needs particular care and reassurance. The proposals in the Bill would make it possible for the consent procedure and the adoption process to be separated. Clause 12 pro-vides for this to be done in three different kinds of circumstances. I am afraid that the provisions are somewhat complicated and I hope that the House will bear with me while I endeavour to explain them.
The first case is where a parent wishes to give an early final agreement to adoption. The adoption agency applies with the parents' consent to the court for an order transferring parental rights to the agency so that the child may be freed for adoption. The court will then appoint an adoption officer, an experienced social worker who will ensure that each parent or guardian fully understands the implications of the order and freely consents to it. Once the order has been made it is irrevocable, except that under Clauses 15 and 16 the agency to whom parental rights have been transferred is required twelve months after the making of the order to inform the parent, who has agreed to the making of an order and has not made a declaration preferring not to be involved in the child's future, whether or not the child has been adopted. If the child has not been adopted or placed for adoption the parent will have the right to apply for parental rights to be restored. Parents who ask agencies to make arrangements for the adoption of their children are not obliged to use this procedure, but may if they wish continue to use the existing procedure by which their consent becomes final only when the adoption order to specified adopters is made.
While the Bill provides for parents to be given this choice it takes account of some of the views expressed during the consultation that took place, that parents given the choice would be unlikely to opt for the first new procedure I have described. Clause 12(7) therefore requires an agency to explore first with the parents 22 the possibility of using the new procedure, and only if it is satisfied that it is inappropriate should they place the child for adoption under the older procedure. It is hoped that this provision will help the new procedure to become accepted more quickly without placing undue pressure on the parents.
The second situation in which this new procedure could be used is where a parent has placed her child in the care of a local authority or an approved adoption society, and is either unwilling to make up her mind about adoption or has virtually abandoned her child forever. These are some of the "children who wait", as they have been described. In some of these cases, a court might dispense with the parents' agreement to adoption because they had persistently failed to discharge the obligation of a parent or were withholding agreement unreasonably, but there is at present no way of testing this without first, placing a child with prospective adopters for three months. Unless the local authority has assumed the parental rights, or the child is the subject of a care order, the parents can frustrate an adoption application simply by removing the child. This new procedure now provides a means of dispensing with parental consent before a child is placed with the adopters, so as to enable many children who might otherwise spend their entire childhood in care to be freed for adoption.
The procedure in this kind of application naturally contains more safeguards than where parents consent to the application being made. Thus the child must be in the care of the local authority or approved adoption society, and the parents must be given three months' notice to give them time to decide whether they wish to dispute the application. As with the application made with parental consent, the court will appoint an adoption officer unconnected with the agency making the application to see the parents and to submit a report to the court. If the parents oppose the application, the court will consider whether parental agreement should be dispensed with on one of the grounds that are set out in Clause 11. Once made an order will be irrevocable, but the parents will have a right of appeal. The Government did not lightly reach their decision to implement this recommendation and so diminish as a result the rights of parents 23 of children in the care of others. They were, however, impressed by the Committee's conclusion that the law and practice are now too heavily tilted in favour of the rights of natural parents, however unnaturally or unreasonably they have behaved.
Finally, my Lords, the new procedure might be used where there is a dispute between parents about whether or not a child should be offered for adoption. The clause will enable an agency, with the consent of one parent, to apply to a court for an order freeing a child in its care for adoption, and the court will be asked to dispense with the other parent's agreement on one of the statutory grounds. Clause 11 extends the grounds for dispensing with parental consent, and the new case is where a child has been seriously ill-treated and his rehabilitation in his family is unlikely. Under the pre-sent law the ill-treatment has to be persistent before it becomes a sufficient ground. The proposed change will enable even a single instance of ill-treatment to provide such a ground, if the court is satisfied that the child cannot be expected to resettle with his family.
Clause 27 of the Bill ensures that per-sons who have looked after a child for five years or more can apply to adopt, without the fear that the parent or caring agency will remove the child before the hearing without the leave of the court. This is intended to help foster parents who are otherwise unable to be sure of a court hearing of their application and who will not risk making an application in case this provokes the removal of the child. In making proposals which they hoped would prevent some of the distressing conflicts which arise, the Committee were anxious to avoid suggesting measures which would weaken the confidence of parents in the fostering system for the sake of difficulties which are some-times experienced, though happily those cases are few. Nevertheless, the Committee considered that foster parents who had cared for a child for a long time— and, after all, five years is a very long time in a child's life—should be entitled to special consideration.
These applications would still be subject to the same safeguards as other adoption applications and the court, in 24 deciding the question of parental agreement, would still have to consider whether the statutory grounds for dispensing with agreement could be satisfied, bearing in mind the welfare of the child. As with other provisions dealing with time limits specified in Parts II and III of the Bill the Government recognise that the proposals cover new ground and that, in time, experience may show that different time limits might be more appropriate ; so it is proposed that the Secretary of State should be enabled to vary them if each House of Parliament approves.
Clause 24 is an interesting clause, pro-viding that in England and Wales an adopted person of 18 years or more may obtain a copy of his original birth certificate. Under the present law, an adopted person can already obtain access to his original birth records, but it is difficult. If he has a copy of his adoption order, or if he obtains one as the rules permit from the court which made the order, there is enough information in the order to enable him to trace his birth records. Alternatively, he can apply to the court for an order requiring the Registrar General to furnish him with the information which will enable him to obtain a copy of his birth certificate. The Committee thought that an adopted person ought to have access to information about his origins if he wants it. Adopted persons in Scotland nave always been able to obtain their birth certificates and there is no evidence to suggest that the exercise of this right has caused any difficulty there.
My Lords, I now turn to Part II of the Bill dealing with custodianship orders. At present, the only way in which a relative or foster parent caring for a child may acquire legal status connected with the child is to apply for adoption. Part II of the Bill enables the court on the application of the relative, stepparent or foster parent who has the child in his care, to make a custodianship order vesting legal custody of the child in the applicant. This gives effect to the recommendation that relatives already caring for a child, and foster parents who have cared for a child for at least 12 months, should have the right to apply for custody. The situations which the Committee had in mind were where the foster parents wished to secure their relationship with the child, but where for various reasons 25 it would be undesirable to sever completely the link between the child and his natural parents or other relatives, or where it would be undesirable to take the irrevocable step of adoption.
Part II of the Bill deals with a new concept, and the orders made under it must be distinguishable from orders as to legal custody made under other powers. For this reason, orders made in England and Wales are given, as I have said, the special name of custodianship orders. There are three main classes of case where they may be applied for: first, where the parents have agreed to a child being cared for by a relative—namely, grand parents, brothers, sisters, uncles or aunts; secondly, where the child has his home with a foster parent either by private arrangement or under arrangements made by a local authority after the child had been taken into its care; thirdly, where the child has his home with a step-parent on a parent's remarriage following either death or divorce. These are very different human situations and must be considered separately.
The simplest case is that of the relative; and Clause 30(3)(a) provides that if the parent or guardian consents, the relative may apply to a court for a custodianship order provided that the child has had his home with the applicant for three months before the application. Clause 30(3)(b) enables the foster parent to apply, with the consent of the parent or guardian; but the child must have had his home with the foster parents for at least 12 months, including the three months before the application. This is because we think that a longer period is desirable to assess the suitability of foster parents than in the case of close relatives; and also because we do not wish to discourage parents who are in temporary difficulties from agreeing to have their children fostered for fear that they will thereby put themselves at risk of losing them.
Next, I come to stepparents where there are two kinds of situation. Where the parent, other than the one that the stepparent has married, is dead or cannot be found, the stepparent may apply for custodianship under the same terms as a relative. However, where his wife obtains custody of the child on divorce and the child's father is still living, it seems to the Government that in general the case should be considered by the court which 26 reached the decision on custody during the divorce proceedings; and that is pro-vided for in Clause 30(5). What I have said applies where the parent consents or cannot be found; but the parent may not agree to the transfer of custody and in that case an application can be made only if the child has had his home with the applicant for at least three years. Otherwise, there would be a serious danger that parents would be unwilling to agree to their children being fostered. Short-term fostering is often the best solution where for any reason parents are temporarily unable to look after their children; and it would be very much against the interests of the children if its use came to be discouraged by the new provisions. Under Clause 30(7) of the Bill, this time limit is one of those which can be varied by order on Affirmative Resolution of both Houses.
We have deliberately selected a period of three years here, instead of the five years required in adoption proceedings, because custodianship is not so final as adoption. We have also provided in Clause 34 that where a child has had his home with a relative or a foster parent for over three years the child may not be taken away. A decision in any of these cases will be made by the court on the same basis as a decision under the Guardianship of Minors Act 1971; that is to say, it will regard the welfare of the child as the paramount consideration. This requirement applies automatically to this Part of the Bill by reason of the wide terms in which Section 1 of that Act is drafted. One of the main distinctions between an adoption order and a custodian-ship order under the Bill will be that the custodianship order can be revoked. The courts are given powers under Clause 35, when an adoption order is applied for, to make a custodianship order instead. There are special provisions in Clauses 39 to 45 relating to Scotland.
I now come to the final batch of proposals in Part III of the Bill, which are designed to afford greater security for people involved in those distressing situations which arise when a child in the care of a local authority has been living with foster parents for a considerable time and is abruptly reclaimed by the parents without regard to the damage that removal from the foster home without adequate preparations could cause the 27 child. The Press has used the vivid phrase, "the tug of love conflict". As things stand, unless a local authority holds parental rights, there is nothing to prevent parents who have placed their child voluntarily in the care of a local authority from removing him at any time, irrespective of the length of time he has been in care.
The Committee saw the need to pro-vide some protection for the child and recommended that where a child has been in care for more than a year there should be a period of 28 days during which the parents should be prevented from withdrawing the child without the consent of the local authority. This would allow time for the parents, for the child, for the foster parents, to adjust and make a planned transfer of the child to the parental home. Although this could be seen as an abridgement of the rights of parents who are unfortunately obliged to place their children in care, nevertheless I think we should take account of the disturbance that can result from the child's sudden removal from the home to which he has become used.
The Committee considered also the existing grounds for the assumption by the local authority of parental rights and decided that it would be an advantage if, in addition to the existing grounds, local authorities could have a discretionary power to assume parental rights in respect of a child who had been in their care, or in the care of a voluntary organisation, for a continuous period of three years. The local authority would then be able to plan the long-term future of the child at a stage when the parents' failure, for whatever reason, to provide parental care made it necessary for firm decisions to be taken in the child's interest. This recommendation is embodied in Clause 47 of the Bill, which also consolidates changes in recent years in the law relating to the assumption of parental rights.
My Lords, I now come to a proposal in the Bill which aroused a great deal of interest when it was announced, mainly because of public concern over the report of the inquiry into the circumstances of the case of Maria Colwell. Your Lord-ships will recall that the inquiry attributed the failure to protect the little girl largely to a breakdown in communication between those who were responsible for 28 her care. Legislation cannot make authorities and other agencies concerned with these cases pass on information to each other, though the Government can offer, and have offered, guidance on the obvious need for co-operation of this kind. The Maria Colwell case also drew attention to the need to strengthen the machinery for representation of children in court in cases where their interests may be at risk. The Department of Health and Social Security circulated a consultative document about these proposals last year. A number of helpful and constructive comments were received which led to the conclusion that care proceedings, and particularly proceedings for the revocation or variation of care orders, called for further provision.
Clause 50 provides that in such proceedings where there appears to be a conflict of interest between the parents and the child, the court shall have discretion to order that the parents shall not represent the child and shall ordinarily do so where the application is for revocation and is unopposed. In either case the court is to have discretion to appoint an officer of a local authority as guardian ad litem to safeguard the child's interests in a manner which will be prescribed by rule, or to appoint a lawyer to represent the child if necessary. In appropriate cases the child could be represented by both the guardian and the lawyer. To safeguard parents' interests, the legal aid provisions, under which at present legal aid may be granted only in respect of the child, are extended by Clause 51 to enable the parents or guardians also to receive legal aid in any case where there is a conflict of interests. My Lords, we were conscious of the danger that by providing new safeguards of this kind for all children who came before a court we might merely divert into a new and unproven channel the financial and human resources which are needed to strengthen the existing services and safeguards, and for this reason we have put forward in the Bill a proposal which is carefully circumscribed.
I now come to the timing of implementation. Clause 69 sets out transitional and commencement provisions. A few provisions will take effect on Royal Assent, others on 1st January 1976, but new court rules and regulations on the major new procedures will be 29 required. We attach great importance to consultations with local authorities about the timing of provisions requiring them to provide an adoption service and no decision will be taken on this until these consultations have been completed. Fortunately, most local authorities already provide most of the elements of an adoption service but they will now have to assess needs and resources in collaboration with the voluntary adoption societies. While my right honourable friends will make available the services of their social work service to advise local authorities and adoption societies, we cannot expect local authorities to begin exercising their new functions before 1976. Since many of the provisions in the Bill will place new responsibilities on adoption agencies, I am sure your Lordships will agree that the relevant Ministers should be satisfied that the voluntary adoption societies will all be able to meet the new criteria and to reach the standards required for approval.
My Lords, I apologise for taking so much of your Lordships' time. I com-mend the Bill to the House as a valuable measure of social reform inspired to do all that is possible for the welfare of children who too often in the past have been casualties of our society. My Lords, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.— (The Lord Chancellor.)
§ 4.7 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, first of all, I am sure that the whole House will be grateful to the noble and learned Lord for his lucid and comprehensive introduction to this Bill and his description of its contents. I begin with two apologies myself. The first is that, although I have had quite considerable professional and even judicial experience of these matters, there are, unfortunately, great gaps in my knowledge and for this reason I am more than a little glad that the task of expressing the views of my noble friends on this matter will be taken on in addition by my noble friend Lady Young. I am also delighted to see that my noble friend Lord Wardington is to make a maiden speech on the subject and I am sure that the whole House will be looking forward to that. My second apology, my Lords, 30 is that, as I am for this year Treasurer of my Inn of Court, it may not be possible for me to hear the last speeches in this debate. I hope that it will be possible, but my physical presence may be required elsewhere later in the evening and I hope the House will acquit me of discourtesy.
My Lords, the first point I want to make to the Government is to thank the noble Lord the Leader of the House for having secured this Bill to be introduced into this House of Parliament. We on this side are very grateful to him. It is, I hope, not politically controversial. At the same time, there is a good deal of matter in it about which opinions will not be unanimous and there will have to be a live Committee stage to which I am sure we all look forward. May I say at once that as a whole the Bill com-mends itself to noble Lords on this side of the House. If I express some reservations, and perhaps even criticisms, I do not think they are in any way fundamental. We shall do our best to assist the Government in both Houses to get the Bill on the Statute Book. No doubt there will be Amendments for discussion, but that should not affect the passage of the Bill into law and, since this is not a matter of political controversy, I hope that the Government in their turn, will be a little cautious about clapping on the Whips on the subject, because my recollection is that opinions in all Parties are not unanimous and it is as well to take the opinions of Parliament as a whole on matters of this kind which are not matters of Party controversy.
As the noble and learned Lord has said, the main purpose of the Bill is quite obviously to give effect to the findings of the Houghton Committee. I would agree with the implications of what the noble and learned Lord said. It is of course a matter which is overdue for treatment. Largely, it is the same Bill as was introduced by Dr. Owen as a Private Member's Bill in the last Parliament but one, and I am sure it will give him satisfaction that, as a Minister, he is now able to propose the Bill as part of the Government's programme. At the same time, I should like to claim a little credit, if I may, for my right hon-ourable friends in another place and for myself. Dr. Owen very wisely consulted us before moving his Private Member's Bill. I think he would probably agree 31 that we gave him every assistance, and although I did not personally consult with him I can claim that I worked behind the scenes to give him a fair wind. Had it not been for the General Election in February 1974, I think his Bill would certainly have found its way on to the Statute Book before now.
Incidentally, I would make a small point by way of parenthesis. I was a little distressed to see an article by my noble and learned predecessor, Lord Gardiner, in the Guardian a little while ago, which seemed to suggest that the process of law reform had been allowed to stagnate during the Conservative Administration. If that had been so, it would have been a serious criticism both of the Conservative Government as a whole and of myself as Lord Chancellor. I therefore put down a Question to the Government which was kindly answered by the noble and learned Lord on the Woolsack on 14th November 1974. It emerged from that Answer that if we disregard the abortive Session which ended in February 1974, we did more in the way of law reform, Session by Session, than our Labour rivals. Indeed, in numbers of Bills it works out at eleven per Session as against six. Of course, it is not mere numbers which should represent the test: importance is the test. But a glance at the contents referred to in the noble and learned Lord's Answer will show that we were not behind in that respect either. We used—as I have no doubt the noble and learned Lord will—both Government and Private Members' time, and on more than one occasion I have had to thank Private Members on both sides for their help in this good work. I should say that the noble and learned Lord, Lord Gardiner, has made more than ample amends to me privately already, and I am sure he will not mind my putting the Record right in public.
The main Part of the Bill is concerned with adoption, and I shall revert to this subject in a moment. But presumably in order to put Parts II and III in order it has been given a wide Long Title. It is called, by the shortest Long Title almost in living memory:An Act to make further provision for children.32 I find it therefore a little disappointing that the opportunity has not been taken to amend some of the more controversial provisions of the Children Act 1969, a measure which, again, had no Party con-tent but which, as the then Home Affairs spokesman in another place, I ventured to criticise in part while it was passing through Parliament at that time. I should myself be surprised if some of those who find that the working of the Children Act has proved in practice somewhat unsatisfactory did not take the opportunity of the Committee and Report stages of this Bill, and the width of the Long Title, to suggest Amendments which will no doubt provoke some discussion on the working of that Act. I feel certain that this will be so in another place and expect it to be so also in your Lordships' House. I know, for instance, that the Magistrates' Association feel strongly, as they delivered evidence to that effect to the Expenditure Committee just before Christmas, as also do a number of local authorities feel strongly about it.
Coming to the adoption proposals themselves, I think it is important to discuss the difference between three quite separate conceptions relating to child welfare under the existing law: the care and control of a child, the guardianship of a child, the custody of a child, and the parenthood of a child. Ever since 1925, I believe, but at any rate during the greater part of my lifetime, it has been a fundamental conception of English law, and I think also of Scottish law, that the interest of the child is paramount in all questions of care and control, custody and guardianship. This was a hard-fought battle in the past and its echoes are sometimes heard from time to time. But it is a past conflict. Public opinion has solidly supported Parliament, and the courts have loyally interpreted Parliament's intention in this matter. The interest of the child is paramount, even when it conflicts with the interest of the parent or both parents. This is as it should be. But it is worth saying, inci-dentally—again in parenthesis—that even in Continental Europe the law is different. When I attended a European Law Ministers' Conference in Basel as Lord Chancellor, only the Irish representative saw matters in our light. All the other European countries retained to some degree the absolute right of parents 33 and, in some cases, of the father. I can see the noble Baroness, Lady Sum-merskill, fixing me with a basilisk stare because of the fact that we should appear to be so wrong-headed in this year of grace.
This remains one of the factors which render mutual enforceability in this field —in principle so very desirable— unexpectedly very difficult. Public opinion here would, in my judgment, not tolerate any deviation from the paramount rights of the child. But while this is true of care and control, custody and guardianship, it cannot be equally true of adoption. The effect of adoption, in contrast to the other changes of status or condition, is permanently and completely to break the natural link with the parents altogether. Mary Smith becomes Mary Jones and her parents are no longer Jane and John Smith but Thomas and Martha Jones. She is a child of that family for all purposes: inheritance on intestacy, domicile, consent to marriage and name. John and Jane Smith are perfect strangers to her, except for the purpose of consanguinity in nullity of marriage and incest, which is seen in the re-enacted section of this Bill, in Clause 7(6). There-fore the law, both as it exists and in its proposed changed form, gives parents a right to withhold their consent to adoption, and adoption is not effective unless they do consent or unless the consent is unreasonably withheld and is dispensed with by the court.
The law makes two changes of importance. In the first place, as the law stands at the moment, a parent can change his or her mind indefinitely right up to the last minute. The consent has to be given at the moment when the court is hearing the case. Even if it is given beforehand, if it is withdrawn it is not valid. In the case of mothers this change of mind happens not infrequently. Under the proposed Bill a means is provided, which the noble and learned Lord has described, whereby consent can be given irrevocably or dispensed with in advance. This is a necessarily controversial proposal and should be discussed. I say frankly that I endorse it wholeheartedly. I am entirely on this side in this respect.
Secondly, the welfare of the child becomes a factor in the case at all stages. I think this would have been a change in what was thought to be the law at the 34 time the Houghton Committee reported a few years ago. I do not think it is really a change now, because of a decision (to which I was a party judicially) of the Judicial Committee of the House in 1971 in a case which had the somewhat unpromising name of In re W. I therefore think that Clause 2, so far as it is concerned with the duties of the court, is no more than declaratory. In so far as it affects adoption societies and other bodies, including local authorities, it may be a little more than declaratory, but I do not think it is. In addition, there is the relatively minor change whereby among the grounds upon which parental consent can be dispensed with is the single act of ill-treatment of the child. This takes the place of the persistent ill-treatment which was necessary under the existing law. This I regard as a relatively small improvement but it is, none the less, an improvement.
More controversial—although once more I come down on the side of the Bill—is the decision to make the adoption societies the responsibility of Central Government in England, though not to the same degree in Scotland, instead of the local authorities. This is in accordance with the recommendations of the Committee, and the arguments on both sides are clearly set out in the Report.
I wholeheartedly endorse the provision as it stands to provide for the separate representation of the child in certain cases. Most of us are familiar with a situation in which the various parties interested in the future of the child can—although, happily, they usually do not—put their own interests in front of those of the child to the extent that those representing them find it difficult to represent the child's true interest to the court. I therefore welcome the proposal in the Bill. Some people may think it relatively unambitious compared with the more general proposals which were made at one time. But I am satisfied that this is not so. In the vast majority of cases separate representation is not required. If it were required in every case, I say categorically that I do not see how, in the present undermanned state of both branches of the legal profession, it could be universally provided. In most cases the report of the welfare officer is adequate to protect the interests of the child, and I think this will be so in the future.
35 I come now to the rather curious provisions in Part II of the Bill about custodianship. In so far as these reflect the findings and recommendations of the Houghton Committee, I have no quarrel with them. At first sight, however, I quarrel with the nomenclature which is claimed to be—and the noble and learned Lord endorsed it—a "new status". What is wrong with, and how does "custodianship" differ from, guardianship? The noble and learned Lord did not explain; the "blurb" in support of the Bill does not explain, and nobody seems to know. The Committee recommended—if I have understood it correctly—virtually the same proposals, but were content to regard them as an extension of guardianship. There are already too many technical terms connected with this infinitely human topic: custody, care and control, guardianship, fostering, in care, adoption and now there is to be "custodianship", which is not a very agreeable word anyway. I recognise the different nature of the others, but why a new wheel to the coach here? Occam, talking of philosophical conceptions, said that entities were not to be multiplied beyond necessity. I am at one in this respect with the mediaeval school man.
I was concerned whether I was to say this or not until I received, as did many of your Lordships, the very good and full report on this Bill by the Association of Directors of Social Services from which I derived considerable benefit. They have independently made the same criticism as that to which I have just given voice. On page 33 they made the following criticisms, which I venture to quote:It appears to us that there are fundamental differences between custodianship and guardianship. If there are not, there is no virtue in using an alternative concept. It would be better to extend the use of the Guardianship of Minors Act 1971 as proposed by Houghton.If, as it appears, the decision not to use guardianship, but to introduce the new order instead, is a deliberate one, we must then ask if that decision is correct and if it will promote the interests of the children involved".They set out a number of arguments and come to this conclusion:In view of the above it is the view of this Association that the needs of children in these circumstances can only be fully met by the making of a guardianship order in the full sense of the term. (Limitations on the right to agree to adoption or to arrange emigration could be 36 excluded.) Guardians need all the other powers of parents in order to care fully for the child".Therefore what I say to the noble and learned Lord and to the Government is this: this is generally an acceptable Bill; I want it to become law. I should like to promote at the Committee or Report stage some debate under the Long Title on the working of the Children Act 1969, which has proved controversial, as I predicted. I wonder whether the Government would look again at this question of custodian-ship. One does not want to create entities for the sake of creating them, but this has aroused a good deal of criticism, which at first sight seems fully justified. With that reservation, and with the further reservation that I look to my noble friend Lady Young to supply the gaps in my knowledge and experience, with reasonable warmth I commend the Bill to the House.
§ 4.27 p.m.
§ Lord WIGODER
My Lords, the Houghton Committee—which ought more properly to be called the Stockdale Committee in deference to the chairman who guided it through the crucial period of its deliberations—produced a lucid, well argued and well documented Report which met with my general approval and that of my noble friends on these Benches. It follows that we welcome this Bill which endeavours in somewhat complex terms to give effect to the major recommendations of that Committee. We welcome it as a piece of major social legislation which should do much to protect children who may otherwise be deprived of the advantages of a happy and secure home life. We recognise that this is of importance not only for the children concerned, but obviously—if your Lordships will forgive my making a trite remark—for society as a whole. These children are not only the parents of tomorrow but, if they are not properly helped at this stage, they may be the misfits and criminals of tomorrow. It would therefore be of little assistance and merely a waste of your Lordships' time to indicate the very large areas of the Bill with which we are in general agreement. Equally, it would not be helpful at this stage to indicate detailed matters of amendment which might be put forward at a later stage.
I want to raise some of the major areas of query in the hope that the noble Lord the Minister, when he comes to reply to 37 this debate, may be able to resolve some of my hesitations. I begin with Part I of the Bill dealing with adoption. I should like to refer particularly to what the noble and learned Lord the Lord Chancellor called the keynote section, Clause 2 of the Bill. That is the clause which provides that:In reaching any decision relating to the adoption of a child, a court … shall take full account of the need to safeguard and pro-mote the welfare of the child …That is clearly a provision designed to help a court where there is a disputed adoption application, because the question arises as to whether the consent of the natural parents should be dispensed with on one of the statutory grounds.
Your Lordships will agree that the natural parents in that situation have duties and, no doubt, corresponding rights. The adoptive parents have their rights. But I know your Lordships would also agree that the child's rights are by far the most important. My hesitation about this clause arises from the reflection that it may not be strong enough to give the court the assistance it desires in putting the welfare of the child first. Your Lordships will know that, under the Guardianship of Minors Act 1971, in custodianship, custody and guardianship cases the test is laid down that the welfare of the child shall be the paramount con-sideration. That would seem to me to be right.
I cannot help being a little surprised that when one comes to look at the terms of this Bill one finds that, both in relation to adoption in Clause 2 and in relation to care proceedings in Clause 49, the test is merely that the court shall take full account of the welfare of the child. I find that an insipid test, one that is insipid almost to the point of being ineffective. I say that because I find it difficult to conceive of any court which has ever dealt with any case involving the welfare of a child that could not afterwards put its hand on its heart and say, "Well, of course we took full account of the welfare of the child". The Houghton Committee, who of course were aware of the decision In re W, to which the noble and learned Lord, Lord Hailsham of Saint Marylebone, referred, quite specifically recommended in two of their recommendations, Nos. 20 and 51, that the test in these contested adop- 38 tion cases should be that regard should be had to all the circumstances, first consideration being given to the welfare of the child. That seems to me to be of much more assistance to the court and of much more protection to the child than the test which is now proposed, which is simply that full account should be taken of the child's welfare. I personally would welcome some indication from the Government as to whether it is not right that the present Clauses 2 and 49 in the Bill do not, in fact, resile somewhat from the protection that should be given to the child, that is given to the child in custody and guardianship proceedings, and ought to be given to the child as recommended by the Houghton Committee.
To turn to the second Part of the Bill which deals with custodianship, I think that one must recognise that this is per-haps not likely to be a particularly attractive proposal, especially to step-parents who are anxious that there should be full adoption proceedings in relation to their own step-children. I have two hesitations about this Part of the Bill —a somewhat complex Part. It may be that I have misunderstood the provisions, and again I should be grateful in due course for clarification about these matters. The first hesitation is this. A custodianship order under this Bill, as I understand it, will still leave certain legal rights in the natural parents. Under Clause 35 it is open to a court on an application for an adoption order to make a custodianship order in favour of the applicant if they are satisfied it would be more appropriate. It appears to me that the difficulty may arise that the natural parents will have gone through the enormous emotional strain of having come to a final decision to consent to adoption for their child and then find, for circumstances that are outside their control, that, in fact, not an adoption order but a custodianship order is being made and that, contrary to their anticipated wishes, some legal rights will nevertheless remain in them. I suppose it would be possible for the adoption officers under the Bill to explain all this to the natural parents when they are giving their consent to adoption. It will be a difficult, complicated task, and one which may cause considerable embarrassment to the parents who have consented to adoption proceedings.
39 The other hesitation I have about the custodianship section is this. Under Clause 32 it is open to the custodian, among other parties, to apply for revocation of the custodianship order. I am anxious that, should such an application for revocation of a custodianship order be made, there is no danger that the child would revert into a vacuum in which theoretically the rights would go back to the natural parents, who by that stage may have lost all interest in the welfare of the child. It might be possible to devise some procedure whereby, on application for revocation of a custodianship order, the local authority will automatic-ally be made a party, with the right to apply for a care or supervision order or to take what steps are necessary to safe-guard the welfare of that particular child.
I turn now to the third Part of the Bill which relates to care and which clearly stems largely from the Field Fisher Report concerning the Maria Colwell tragedy, which was unhappily by no means a unique tragedy. The real crux of the catastrophe that befell Maria Colwell occurred at the stage at which the mother applied to the court for revocation of the care order which had been made in favour of the local authority. The local authority considered the application with the greatest care and in the greatest detail. It recognised that there were weighty arguments on both sides, and finally decided, by a very narrow margin, that the balance lay in not opposing the mother's application to resume the care of the child. The result was that the social worker who was then employed by the local authority went along to the court and represented to the court that the application was unopposed. No one could blame the social worker for this in her position as an employee of the local authority. It would be putting an impossible burden upon social workers in that position to expect them to represent in detail the fine balance of opinion of the conflicting arguments that had gone through their employers' minds before a decision was reached. But it does mean (does it not?), when one considers the facts of that case and other similar cases, that it is essential that, where applications are being made for the care of a child to be restored to its mother, in these circumstances there should be independent advice available to 40 the court—from some independent social worker, either from some other local authority or perhaps from the probation service, or from the NSPCC's children's officer. One knows some unhappy jealousies exist between these various bodies, but they clearly ought not to be allowed to stand in the way on these occasions.
The position under Clause 50, as I understand it, is that rules of court—and of course we have not seen the rules of court; much will depend upon them when they are drafted—shall provide for the appointment, where the court thinks fit, of an officer of a local authority or other person to act as guardian ad litem of the child or young person in proceedings …".I am sorry to see the expression, "where the court thinks fit", giving the court a discretionary power to see that there is an independent report on behalf of the child. I should have thought that it was desirable that this provision should be mandatory, if tragedies such as the Maria Colwell tragedy are not to recur. I would hope that when the rules are drafted it will be made perfectly clear that the guardian ad litem should not be an officer of the same local authority that has the child in its care, so that independent assistance can be available to the court.
My Lords, the only other observation I would make at this stage is a very general one. It is easy to erect a legal superstructure which fails to be effective because there are not the necessary social services to make it work. We have seen that happen already with the Children and Young Persons Act 1969, and if this legislation is to be effective it is vitally important that the Government should begin to take steps at once to ensure that, in particular, there are an adequate number of social workers available to operate it. It will be necessary for there to be a supply of extremely skilled people to act as adoption officers and in the other capacities required by this Bill, and again I hope that the noble Lord the Minister will indicate what steps the Government propose to take in the course of the next twelve months or so before this Bill reaches the Statute Book to ensure that that supply is forthcoming.
Perhaps I ought to declare a minimal interest when I say that one would hope 41 ideally that in any case in which a child's welfare is involved there should be legal representation of the child during the proceedings. I personally very much welcomed the original Clause 52 of Dr. Owen's Bill which would have helped to ensure that. I think one must accept that in the present rather difficult financial circumstances such may not be practical on that scale. Nevertheless, some steps can perhaps be taken, even at this stage, towards that end. One obvious measure, perhaps, is that social workers who have the task of appearing in court on behalf of a child should, as part of their training, be given some insight into court procedure, into questioning people and into presenting a case, because in a court of law it is not easy for a social worker to hold his or her own in purely forensic combat. If I may say so, the other side of the coin is that lawyers who do work of this nature might well be helped if, in the course of their training, they were given a little insight into some of the social sciences and problems involved. If we could provide that at least in the Clause 50 cases there was, in every such instance, a social worker, or a lawyer, or both who really had an insight into the problems, we might do something at least to protect children who otherwise might find themselves in very real difficulties.
My Lords, at this stage, with those general observations, my noble friends on these Benches and I welcome this Bill and wish it well.
§ 4.45 p.m.
§ Lord WARDINGTON
My Lords, I hope that the House will extend its indulgence to me in addressing your Lordships for the first time. I was given strict instructions that I was not to exceed ten minutes, and I was also told that I should be non-controversial. Therefore I am confining my remarks to my own experience. Basically, I agree whole-heartedly with this Bill. My wife and I have three children, all of whom are adopted. We had the luck to achieve this through one of the recognised adoption agencies. We had the luck, not the children. The good fortune was ours. The children could have been adopted by any one of a hundred equally loving couples, but we were allowed to adopt.
My Lords, this Bill tries to put the interests of the child first and those of 42 the parents second. To do this, some very strict controls on adoption have to be imposed upon would-be parents who, as I have said, far outnumber the total number of children available for adoption. As your Lordships rightly drew the distinction earlier on, I am talking of the adoption of strangers. Because of these controls, the practice has sprung up, in ever increasing instances, of prospective parents trying to take a short cut towards adopting a child. First, through using private sources they obtain the promise of a child and then seek to adopt that child through normal procedures. Unfortunately, this first move on the pan of the adopters very often involves some form of payment in money or in kind. I find this practice quite abhorrent. However, once the child has been found through private sources and accepted by the adopters, it is much more difficult for the authorities to inquire into the background of the prospective parents. In these cases, however well-meaning the private sources may be, the basic thought on the part of the private sources must be directed towards the adopters and not the child. The importance of the child should be uppermost at all times.
My Lords, Clauses 1 and 2 seek to strengthen the protection of the child by compelling all adopters to go through recognised adoption agencies approved by local authorities, while Clause 3 allows for any would-be adoption agency to be approved. All three clauses are most desirable and should be given all possible support. May I emphasise that in this Bill it is possible for a private source to become an officially recognised agency and that these agencies can then put the interests of the child first. Clause 7(4) proposes that in law, where the adopters are a married couple, the child should be treated as if he had been born as a child of that marriage. However, Clauses 18 and 19 seem to me to impose some limitations on this proposal. I hope that no limitations are envisaged regarding trusts in so far as they have been formed at the outset by either the adoptive father, or the adoptive mother, or as a result of their marriage. After all, adoptive parents would have hoped to have children of their own, and the fact that they did not have a natural child should not debar an adopted child from benefiting from such a trust or other form of inheritance. I would not wish to alter Clause 19(2).
43 My Lords, I should like to touch briefly on a subject which applies to so few people that I hesitate to say very much about it. My children do not bear the courtesy title of "Honourable". Naturally bom children of other Peers do, and so do the children of Life Peers. It is a courtesy title. Many people have already forgotten, if they ever knew, that my children are adopted. There is there-fore confusion, and it is confusion in the minds of the children; and it may become one further explanation that they will have to give in the future, perhaps at a time that is inconvenient to them. That is a small point, but I feel that it is an important one. Not one of us here—or anywhere else for that matter—has to explain his own existence and name as an exception. Therefore, from the children's point of view I would ask that the courtesy title of "Honourable" for adopted children should be considered, as it was for the children of Life Peers.
I find Clause 24 very important. At the moment, a child can obtain a copy of its original birth certificate after the age of 18 if it knows the name under which it was born. But if the name is withheld there is no method by which it can at present obtain this information. In my opinion, it is vital that this natural curiosity of a child should be satisfied. In some cases it is withheld due, I think, to quite unwarranted fears. The law is different in Scotland. There is very little information on fact or experience to go on, but in Scotland it was fairly recently found that out of 1,000 adopted children only some 40 had bothered to go to the Registrar to look at their original birth certificates. All but three of these had their curiosity satisfied and took the matter no further.
It is natural to feel you must know who you are, and if the adoption has been a success there is no harm done by adding to the child's individuality and increasing its stability by telling it. The sense of identity needed by an adopted child is just as great as in the rest of us. Some adoptive parents find it difficult to tell the child, so the easiest course is for the child to look it up for itself. If the adoption has not been a success or there is a fear that the child will want to return to its natural mother, then only harm can come to that child by with-holding information. My belief is that a 44 child will love its adoptive parents the more if as much information as possible can be passed on with understanding at the correct and most practical times, and that will create as much of a bond as discussing grandparents, uncles or aunts. They are all part of the family. A child has a right to know as much about his family as he can, and his natural parent is very important to him. As I have said, I am very much in agreement with this Bill and I thank your Lordships for allowing me to say a few words on it.
§ 4.53 p.m.
§ Lord GORE-BOOTH
My Lords, your Lordships' House always welcomes very specially contributions from noble Lords who speak from a first-hand and intimate knowledge of the subject which is under discussion, and I make bold to suggest that the noble Lord, Lord Wardington, has spoken both from the head and from the heart about the kernel of this question, and has given us the feeling of what lies behind successful adoption, which one can get only from somebody who has actually done it. I hope very much that the noble Lord will attend the Committee sessions of your Lordships' House and help us with this Bill, because he has shown in a very few minutes how much he can help us. I hope we may also hear him on other subjects.
I am afraid that I wish to start with an apology, because although I should have liked very much to stay until the end of this debate I have a six months' old engagement this evening, and I plead it only because it is to address a group of people about—I give your Lordships one guess—children. So I hope that the Minister who replies to this debate will forgive me. I should next like to declare an interest and to make a disclaimer. The interest that I would declare is my work with the Save the Children Fund. I claim it on this occasion because the Fund is not at all an adoption society, but in its play group work it runs into the problems with which this Bill deals, and I shall come back with concrete cases in a moment. In the meantime, may I express my very warm admiration for the work done on this question in previous Parliaments and in this Parliament by the Minister of State in the Department of Health and Social Security, Dr. David Owen, and by his expert team? For the record may I particularly commend the 45 circular sent out by the Ministry on 22nd April last year, which did so much in the meantime to make the previous law more easily intelligible and effectively applicable?
My disclaimer is simply this. When you have had a family and have done some-thing like 4½ years' work in connection with children you are not an expert; you have merely gained some valuable and heartening experience. Two cases might be of interest as adding to this argument. The first, which came up through one of the play groups, was a case in which a small child's clothes were extremely dirty and the play group leader decided to wash them. This disclosed bruises, the health worker came in and the matter was discussed with the parents. As a result, and with agreement, a court order was made for 28 days and the child went to a child care home, so this was a happy experience.
The second case, which I encountered myself when visiting play groups, had a less happy process. There was at this play group a small child who was quite obviously being bullied and mistreated, but the parents were extremely unwilling to see anybody. A large number of people in local government and elsewhere knew about the case but there was a complete immobilisation, or rather a "passed to you, please" atmosphere, because of the thought that confidentiality could not be breached. So that this child continued to suffer, without there apparently being the means of dealing effectively with the case.
One of the great merits of this present Bill is its conscious effort to provide facilities which do not wholly exist at present for dealing with these very difficult cases. That is why, I think with logic, we particularly welcome and com-mend the idea of the guardian ad litem. I would not wish to argue at this stage where he or she should come from or what the background should be, but it seems to be a most valuable addition to our legislation to add to the present machinery somebody who will literally be the voice of the child, as far as it is possible to ascertain what that would be.
Another thing that was found in this play group—and I think it has been found fairly widely—is that often, when a child is being mistreated, the last thing it will 46 do is admit it. I believe I know that psychology myself, because when I was a very small boy I was, for a short period, bullied at school and nothing would have induced me to admit it. These are the baffling factors that we have to consider in getting this legislation as near right as we can, because there are great subtle-ties in this question of the relationship of children and adults which even the best thought out clause cannot always explicitly cope with.
On that point, I should like to suggest that we must get the position of the family in its right place. The noble and learned Lord, Lord Wigoder, very clearly put the case that the welfare of the child is paramount. I think that is universally acceptable, but it still has to be remembered that to be in the family is the natural way of growing up. If one says, when dealing with these cases, that one should have some regard to the family, this is not to say that a group is more important than the individual; but it is to say that the child's view of being in a family is not irrelevant. If one feels that is so, and if one has regard to the clause in the United Nations Declaration on the Rights of the Child which refers to the family as an entity, then one must bring into consideration the family as such. I do not wish in any way to suggest that an institution is more important than an individual, because this is not so. I am saying only that sometimes in our politics, pendulums are pushed beyond their natural swing. This can happen in these cases unless we are fully conscious that the family as a natural institution has a value which is, to say the least of it, relevant in these different cases.
My Lords, in the Bill there are, of course, other items which are somewhat more controversial than the idea of the guardian ad litem. In Committee, we shall wish to consider such matters as the time limit, how long it should be, and whether there is any way of preventing its abuse. But, in general, there is un-questionable progress in this Bill in some of the most difficult matters—notably, for instance, the question of what is to be done when there is not consent between parents who are undecided what they Want in a case where a child is not happy. But I say that again only to emphasise that beyond the art of legal definition, there are great subtleties of psychology 47 with which the good social worker is trained to deal in these surroundings.
There are, of course, topical issues in this matter of the treatment of children, with which this Bill does not explicitly deal, and, perhaps it could not do so. But none the less, I felt it timely to mention in this connection the question of child-minding. This subject is very relevant to children Bills—and children Bills do not come up very often. As I have mentioned in advance to the Minister who is to wind up the debate this evening, I hope that in winding up he may be able to refer to the question of child-minding, because in this age where so often both parents (for economic and other reasons) go out to work, there are great gaps in the day of a child which necessitate some provision, if possible, in order to prevent degeneration at an early age into what I think are called "latch key children". I was wondering whether in the context of the Bill the Government had any idea of at least producing some suggestions for regularising without bureaucratising the necessary institution of the child-minder. This is an institution which if handled casually, particularly when a child-minder takes on a great many children, could lead to great harm.
My Lords, there is one other point which perhaps is not unimportant. I have heard it suggested that this is only a partial measure which does not go as far as we should like, and, in effect, that the real cause of these tensions in families is the conditions in which too many people still have to live. If we could abolish these conditions then the questions with which this Bill deals would not arise. I do not think that this is totally true, although governments, local and national, will have the task from day to day of trying to remove such conditions. This argument will not really bear criticism, because it commits the fallacy which I mentioned to your Lordships a year or two ago—the fallacy of the comment that one is blocking the way to a far more sweeping reform. The subject is very difficult, and reform has to come up periodically. We can go part of the way, but we cannot do everything at once. My Lords, to conclude, we certainly will wish to examine this Bill in detail, but we should do so with every 48 desire to encourage its rapid passage through this House and through the other place.
§ 5.6 p.m.
§ Baroness BACON
My Lords, I should like to add my congratulations to the noble Lord, Lord Wardington, for his maiden speech. The noble Lord knew what he was talking about, he had know-ledge of the subject, and his speech was delivered with sincerity. These are two things really appreciated by your Lord-ships' House. I hope that in future we shall have the pleasure of hearing more speeches from the noble Lord in a similar vein. This Bill deals with children and their relationships with adults, and so it is one of the most difficult areas in which we can legislate. I should like to offer a word of praise to the honourable gentleman Dr. Owen who, in another place, tackled this very difficult subject as a Private Member's Bill, and who has now been able to see it come to fruition as a Government Bill in his own Department. I do not think that many Members of the other place have had the opportunity to do this. I am sure the honourable gentleman must be feeling very pleased about it.
My Lords, when I was a Minister at the Home Office for three years, one of my responsibilities was the Children's Department which now, of course, is part of the unified social services in the Social Ser-vices Department. During those three years, I came into contact with many cases of individual children from diverse and difficult circumstances. I learned that no two cases were exactly alike, but if the circumstances were similar there was not always the same solution. We are not simply dealing with Acts of Parliament in this sphere, but with people, and with children. People react differently sometimes in the same circumstances.
My Lords, I well remember visiting one local authority and meeting two girls who were in care. They were both about 11 years of age, both had come into care for the same reason—their mother had been cruel to and neglectful of these girls, and also to their sisters and brothers. The two girls reacted quite differently. Both of them were with foster parents. One was happy and settled, and would have been quite happy to be adopted by the foster 49 parents; the other (in similar circum-stances) took every available opportunity of getting in touch with her real mother. The children's officer told me she was sure that the one date in the mind of this girl was the date when she would be able to go home and live with the mother who had been so cruel to her. Some difficult decisions will have to be taken by the courts responsible for the operation of this Act.
My Lords, although it is difficult to make laws in this sphere, we must try so to do for the sake of the children. Looked at in one way, I suppose this Bill is one of balance, the shifting of the balance more in favour of the would-be adopters and foster parents and away from the natural parents. But although this is the probable effect of the Bill, it is wrong to approach it in this way. It is not a case of the natural versus the adoptive parents. The Bill ought to be in favour of the child. It is from that point of view that the Government have introduced this Bill, and it is from that point of view that we all ought to approach it.
Clause 2, I think, could be stronger. It lays down the criteria for judging in various circumstances, but I think that we ought to go a little further than Clause 2. Instead of saying that the court,shall take full account of the need to safe-guard and promote the welfare of the child throughout his childhood ",we should say quite specifically that the welfare of the child must be the paramount consideration; I think that ought to be quite specifically in this Bill.
Again, in Clause 2 it is said that the court,shall so far as practicable ascertain the wishes and feelings of the child … and give due consideration to them, having regard to his age and understanding".Sometimes there is a great conflict between the welfare of the child and the child's wishes, and again the court will have to be very wise indeed to ascertain just what is the right solution in particular circumstances. We must remember, too, in thinking of the welfare of the child, that it is not only the child's material welfare but the child's emotional welfare. I remember once seeing a report made by a child care officer who had visited a house, and the report said that the mother was dirty, the children were 50 dirty, the house was dirty, the children were fed at irregular times and that their clothing was very poor. But she ended the report by saying, "The children are very happy; they love their mother and their mother loves them." I think that is a point we should also bear in mind.
I think in many cases the child would be much better off if both the natural parents and the would-be adopters recog-nised that it was the child's future that mattered and if they all worked together for the happiness of the child. Sometimes this happens where a child has to go back from foster parents to natural parents, and the foster parents co-operate and remain as additional aunts and uncles of the child.
We have seen the tug-of-love cases which have hit the headlines, but we must remember that, having regard to the number of foster parents involved, there are very few cases where difficulties occur. I think we ought here to pay tribute to the foster parents, the thousands of them, little known, who take children, some-times difficult children, into their homes, often at short notice, and care for them seven days and seven nights a week. The foster parents have to deal with complex sets of relationships between themselves, the foster child, the parents, the Social Services Department, all without training. I know that some local authorities, like the local authority in Leeds, have special courses and meetings of foster parents where they get together and discuss their problems with other foster parents and with the professional staff. We must remember that our foster parents carry out this work for a mere pittance, especially compared to what it costs to keep a child in a children's home of the local authority.
This Bill makes the process of adoption easier and in some ways less agonising for the natural parents, and easier also for adopters. We must remember that there are today fewer healthy babies for adoption, but that there are a great many more children with special needs for adoption. I think we ought to remember, too, that there is still a good deal of agony for the unmarried mother when deciding whether or not she will part with her child. From day to day we see announcements in newspapers, by actresses and others in the public eye, that they have given birth to a love child. I 51 am not concerned with the morals of this, because for most working-class people today the plight of the unmarried mother is still grim. It is not a matter of morals; it is a matter of money. Not for the working class unmarried mother the housekeepers and the nannies to allow her to go out to work. She has to think about where she is going to live and who is going to look after her child while she is out at work. I know that legally adoption is going to be easier for her, but it will still be a tug for some of these unmarried mothers to part with their children.
As the noble and learned Lord the Lord Chancellor said, this Bill is in three main parts: adoption, custodianship and care. On adoption, the Bill makes many improvements which I support. Clause 1 speaks about adoption agencies and says that every local authority should either have an adoption agency of its own or that there should be a voluntary adoption agency within the local authority area. I should like Clause 1 to go a little further. I should like the aim to be that every local authority should eventually have its own adoption agency, and in addition voluntary agencies where these are available, because I think there is great advantage in a local authority being itself the adoption agency rather than having to depend upon a voluntary one.
This Bill makes it easier for the court to dispense with the parents' consent in certain circumstances. It has always been possible for the court to do this, but the criteria that have been laid down for taking this decision have been rather restrictive. Local authorities have in the past been reluctant to start proceedings, because the child could be taken away a few days before the proceedings were about to start. Then there was the un-certainty, too, because, as I said, the previous law was so restrictive and did not give the court very much option.
I remember once having a very vigorous argument with a senior official at the Home Office. I wanted a local authority to apply for adoption so that the foster parents could adopt the child that we were speaking about. But he was very adamant that we should not do this and, although he was not a very cautious man, I remember thinking, "Ah, Civil Service caution". Then he astounded me by 52 saying, "I am not giving you this advice as an official at the Home Office. I am giving you this advice because I am a foster parent, and if I set the wheels in motion for my children I know I would lose them tomorrow". So I am pleased that this Bill makes it easier for foster parents and local authorities to apply for adoption after a child has been with the foster parents for five years, and that the natural parents are prohibited from taking away the child before the court hearing. I am pleased, too, to see the new concept of freeing for adoption, because this makes it easier for the mother and for the would-be adopters.
I now come on to custodianship. Like some others who have spoken, I do not like the word "custodianship" very much, but I understand it was very difficult to get another word other than "guardianship", which has a rather different meaning. I can see that the Government wanted to carry into effect the Houghton Committee's recommendation of some sort of halfway house between adoption and fostering. I can also see that it gives certain legal powers over the child and that in some circum-stances this would be very useful. But the child would still be the legal child, I presume, of the natural parents. I have read the Bill very carefully, and have read about all the detailed arrangements as to how people concerned should obtain custody. But what I am still not clear about is what it means to the child and what is the position of the child. I think this point needs to be spelled out much more.
Like the noble and learned Lord, Lord Wigoder, I, too, am a little concerned about the revocation of the custody order. There may be very good reasons why revocation is needed. A child might be in the custody of some-body in this country while his natural parents were abroad. The natural parents might then come home, and the custodians would give up custody of the child. But if foster parents have taken custody of the child, and as it grows older they find that it is not turning out in the way they thought it would, they can then apply to the courts for revocation of the custody order and get rid of the child. Where is the child then? Does it auto-matically revert to being the child, in every sense of the word, of its real 53 parents? If it has been in custody for many years, what will be the position? This concept of custody can be very useful, but the Government will have to spell it out a little more and let us see exactly what is meant.
I now turn to care. There has always been a good deal of confusion in the minds of many people, because a child can go into care in two ways. It can go into care voluntarily, because there are certain circumstances at home and the parents feel that they have to put the child into care for a short or a long period, or it can go into care because of a court order on the grounds of cruelty, neglect, or abandonment by the parents. This Bill make changes in procedures. I welcome some of them, but there is one about which I have doubts.
Clause 47 spells out in great detail the new reasons for assuming parental rights of a child in care. These are much wider than they have been before. It is not for all of these reasons; in each case it is an alternative. Under Clause 47, the local authority can now assume parental rights by going to the court solely on the grounds that the child has been in their care for three years, even though the parents are good parents and even though there may be quite good reasons why the child is in the care of the local authority. This means that parents leaving their children in care voluntarily could lose them altogether.
Some people might say that it is a good thing, if a child has been in care three years, for the local authority to assume parental rights. But I am not so much concerned with that at the moment. I am concerned lest this part of Clause 47 frightens parents from putting their children into care, or taking their children out of care when two years and eleven months have gone by. I can think of many families, particularly where husbands have been deserted by their wives or, where wives have died, whose children have been put into care because the father was not able to look after them. But they look forward to the day—perhaps another marriage, perhaps when an older girl becomes old enough to look after them— when the family can be together again.
However, the local authority will now be able to assume parental rights, which might be the first step on the way to 54 adoption of the children, solely on the grounds that a child has been in care for three years. I hope that the Government will look at this point again, because if local authorities are given this power parents will need great reassurance; otherwise the whole clause will be self-defeating. If this Bill goes too far people will be wary of putting their children into care and will make more use of child minding, and we all know that it is in the interests of children that the parents should seek the help of the social service departments.
There are just two more points that I wish to make. One is with regard to courts. Apparently, this work will be undertaken by the magistrates' court, and a lot of it will be done by the juvenile court. The juvenile court is very hardworking, and is associated in people's minds with child delinquency. I cannot think of anything worse for a child than being taken to the juvenile court in order to acquire a custodian. I think that it ought to be the aim to have a special family court to deal with these and related matters, and the people on this family court should be chosen for their knowledge of these matters—perhaps teachers and social workers. I hope that the Government will look at that suggestion.
Secondly, there is finance. This Bill states that it will not cost any money at all and, in fact, will save money. I have a great deal of sympathy with Ministers who say this, because those of us who have been Ministers know that the way to get anything through the Cabinet, especially in times of financial stringency, is to say that it will not cost anything. But of course it will cost something, and I hope that we shall see that the resources are there. The noble and learned Lord, Lord Hailsham of Saint Marylebone, said that he wished during the Committee stage to raise the whole question of the Children and Young Persons Act 1969, because it was unsatisfactory. But it is not only the law which is important; it is the practice of that law. I would disagree that the 1969 Act, in itself, was unsatisfactory. What has been wrong is that the resources necessary to make that Act a success have not been forthcoming. I think that we should look at that aspect, rather than criticise the Act.
55 There was a Children and Young Per-sons Act in 1963, when I was a member of the Opposition in another place. That 1963 Act laid great emphasis on prevention and on keeping families together. It gave local authorities power to spend money on housing, and a great many other things, in order to keep the family together. This Bill says nothing about prevention, and I hope that, although this Bill says nothing about prevention, makes adoption easier, and so on, we shall not lose sight of prevention. I still believe that unless a home is very unsatisfactory, unless the parents are very cruel, the best place for a child is with its own parents in its own home, and I hope that this work of prevention will go on. Therefore, I welcome this Bill. I know that I have criticised certain parts of it, but one tends to talk more about the things with which one disagrees than about the things with which one agrees. I agree with the main parts of this Bill. It is just that I hope we shall look at a few of the things I have mentioned.
§ 5.29 p.m.
§ Baroness NORTHCHURCH
My Lords, I very seldom address your Lord-ships, but I feel bound to do so today because of the great importance of the subject—children and adoption. I have been connected for many years with one of the oldest organisations; namely, the Thomas Coram Foundation for Children of which I have the honour to be the vice-president. It was founded in 1739. Our work has never ceased and has gone on from strength to strength through all the changing years.
The Bill which we are now discussing is a complicated one, but we approve of many of the recommendations, though not all. While many of the provisions of the Children Bill are to be welcomed, there are several aspects which are of immediate concern to the Thomas Coram Foundation and to other voluntary agencies. In particular, there is the fact that the Bill does not afford the same protection to children in the care of voluntary agencies as to those in the care of local authorities. At present, the only way in which a child in the care of a voluntary agency can be protected from parental action, which may not be in the interest of the child, is by applying to the High Court for wardship proceedings— 56 an expensive and inevitably slow means of ensuring the welfare of the child. Further, there is no means of a voluntary agency assuming parental rights over a child with the parents' full consent.
The Report of the Departmental Committee on adoption of children went some way to improving the situation, by recommending that local authorities should have the power to assume parental rights in respect of children in the care of a voluntary society, if the society so requests. The reference is to recommendation 34 at paragraph 158 of the Report. The new Section 2(1)(d) in Clause 47 of the Bill only partially implements this recommendation, in that it provides that a local authority may assume parental rights in respect of a child only if the child has been in the care of, or partially in the care of, a voluntary organisation for a period of three years. It would appear that none of the other grounds for assuming parental rights, as set out in Clause 47 of the Bill, applies to children in the care of voluntary organisations.
For many years, the Foundation has recognised the need to afford some protection to children in their care in cases where the action of the parents, sometimes only impetuous, has not been in the interests of a child. In the past four years, the Foundation has had to resort to taking High Court action in two cases to safeguard the interests of a child at considerable financial cost—about £800 in legal costs per child. In each case the long-drawn out proceedings and the financial cost to the parents and foster parents has caused unnecessary strain and anxiety to all concerned. In one case the child had not been in care for a period of three years, and thus would not have been safeguarded by the limited pro-visions of the Bill.
While accepting that accountability is an important feature, the Foundation and other voluntary organisations regret the omission from the Bill of any such provision. It is suggested that other safeguards could be built in; for example, that the power to assume parental rights in respect of a child is limited to those voluntary organisations recognised by the Social Work Services of the Department of Health and Social Security as having adequate facilities to carry out rights and duties. This would be in accordance with 57 the provisions contained in Clause 3 of the Bill for the central registration and approval of agencies. Finally, may I repeat that we believe it would be only right for the voluntary societies to receive the same treatment as local authorities? But we very much approve, as I said at the beginning, of much that is included in this Bill.
§ 5.33 p.m.
§ The Lord Bishop of LEICESTER
My Lords, I thought it would be appropriate for a few words to be spoken from these Benches on this subject. I can say at once that we give wholehearted support to the main provisions of the Bill. We have only very marginal questions or possible criticisms to make about it. We support it because it follows so very closely the proposals of what I regret I still call the Houghton Report, towards whose making the Church made a modest, but I hope not insignificant, contribution. Our leading social worker at that time, Mrs. Evelyn Magnus, was a member of the Houghton Committee, and the Board for Social Responsibility in the Church of England, of which I happen to be chairman, made recommendations to the Houghton Committee, many of which have been incorporated in the Bill, although on this subject there has been an extraordinary consensus of opinion from almost all informed authorities wherever their particular home and origin may lie.
It ill becomes me to make any comment on the drafting of the Bill, a subject in which I am obviously a layman. But I thought it worth mentioning my lay reactions as I read the Bill, if only to improve my education because I have no doubt that at some time I shall be answered very thoroughly. I found my-self asking whether it might not have been better to have a separate Bill for Scotland because I found it rather irritating and confusing to read so much concerning Scotland at intervals though the Bill where large sections of the paragraphs were almost verbally identical with those for England. It was quite a test of intelligence to find out where the difference lay. I queried also the wisdom of inserting into the Bill so many modifications of other Bills. I do not know what the practice is in this matter and whether in due time all the other Acts concerned will be reprinted with these modifications 58 or whether some Lord Chancellor will have to repeat what happened this after-noon, that is, to bring forward a large number of consolidated measures to put them all together again.
On the main provisions of the Bill we on these Benches are in full support. We agree that there should be a comprehensive adoption service covering the whole country. Whether this necessarily includes the suggestion made by the noble Baroness, Lady Bacon, that every authority should itself be an adoption agency is, I believe, open to question. I should have no objection to that course, but I welcome the fact that a place is left in the Bill for the voluntary adoption societies which have had such a wonderful history and which have acquired so much valuable experience. It would be tragic if that were all lost to this cause by acts of aggrandisement by the local authorities.
Also we fully accept the idea that these voluntary agencies should be subject to some kind of national standard and that in the carrying out of the necessary tests and inquiries there should be some kind of co-operation between central and local authorities. There is plenty of precedent for this in the government of our country where, for instance, in the matter of education we are quite used to the idea of there being a central authority which also works in co-operation, where possible, with the local education authorities. I imagine something of that kind would work in this case.
We accept the principle that the interest of the child should be the paramount consideration in making all these decisions. Of course this brings us to the slight reduction in the rights of the natural parents. Here we all have to keep a sense of proportion. I think that everybody would agree that adoption must in one sense always be a second best. It is better for the children and the parents if they can remain as a united family, and it is better for adopting parents—or rather it would be better if they had been able to have a family entirely of their own, though I do not forget that now many parents who already have children of their own are glad to use adoption as a means of charitable consideration and service to those who might otherwise find it very difficult to find a home.
59 However, even if adoption is a second best, it can be and often is a very wonderful second best, giving a secure and happy home to children and a great measure of parental fulfilment to those who take on the duties and privileges of being adopting parents. The reduction of the rights of the natural parents is almost marginal. It is not quite as great as it may seem at first sight, because by no means all the natural parents who are considering adoption will opt for the process whereby at one fell swoop they make the general decision to free their children for adoption. There will be many who will adhere to the former customs, but we hope that the number who do opt for the new procedure of bringing their children for adoption will reduce to some extent the painful cases of separation from would be adopting parents at a rather late stage in the probationary period. If it should so happen that these cases are reduced even by a half, that will be some considerable easement of a painful element in our social life.
My Lords, I mention here also a change in that it is no longer possible for the natural parents to insist on a particular religous affiliation for the family into which their children are being adopted. On the whole, I think that this is right. There will still be an element of choice for natural parents who have strong religous convictions, in that they can easily choose an adoption agency which itself shares the convictions which they hold. That would be a way of securing something of what they wish for their children, but, if parents are either unable or unwilling to fulfil their normal duties and privileges and accept the principle of adoption, I think that that carries with it the corollary that the adopting parents must give those children the best they have to give and, if that includes introduction into a religous tradition, that should be accepted as part of what they have to offer. However, I should still expect local authorities to exercise a reasonable degree of common sense in their adoption procedures. I should imagine that, for instance, they would not consciously place a Jewish child in a Christian home or vice versa, but, within the different traditions of the Christian Church, I do not think that it 60 is important for them to be unduly fastidious.
My Lords, I have looked very carefully through Clause 11, in which one can read the conditions under which the court can make an adoption order over the heads of the natural parents. There is one con-dition on which I should like briefly to comment. It may not be new and, since no one else has referred to it, I imagine that is not new, but that neither reduces my objections nor my questions about it. I refer to subsection (2), which allows a court to make an order without the con-sent of the natural parent or parents if it holds that the objection of the parents is unreasonable. I know that the concept of the reasonable man and the reasonable action is well established in English law, but at the same time it seems to me to leave a rather wide area of choice to the authority or the court. These bodies may consider that objection unreasonable, but it may not always follow that it is unreasonable and, one must consider the comparative weight of a powerful and well-equipped local authority and of a rather poor, feckless girl who has given birth to a child and who still loves it. Though the court may consider it unreasonable for her to keep the child, something in her may be deeper than reason and may make it possible, despite all appearances, for her to keep the child. Therefore, I should want to be well assured that, in judging the objection to be unreasonable, no pressure of any kind would be put upon a natural parent other than that of putting before her in a kind and understanding way the relative advan-tages of the various courses of action open to her.
A word about custodianiship. I was interested in the comments of the noble and learned Lord, Lord Hailsham of Saint Marylebone, who wished to use "Occam's Razor" to shave this concept of custodianship off the Bill. No one would contend that "custodianship" is a very euphonious English word, but I take it that those who framed the Bill had good reason for not using the word "guardian-ship". I regret that I am not sufficiently well equipped to know exactly what are the terms under which guardianship can be established in this country and what it implies when it has been established. However, I look on this provision as a way of giving a rather more stable status 61 to something that is not intended to affect the final position of the child in relation to its natural parents but which would make it possible for the foster parents— to use that word loosely—to do their work and carry on with their quasi-parental duties without the continual fear of, per-haps, frivolous interruption.
My Lords, I was glad to see the pro-visions for adopted children to find out in due course their biological origin, if that is known and registered. It is not by any means all adopted children who exhibit this kind of curiosity. I was speaking the other day to one of my fellow Bishops who has adopted children who are almost grown up and he said that they had evinced no curiosity what-ever about their natural parents. However, some years ago I presided over a commission on the question of the illegitimate father. It may be strange that someone from these Benches should stand out to defend the rights of the illegitimate father. But we discovered in that inquiry that a number of children and growing people needed to know their biological links in order to preserve their sense of identity. I thought that the conditions under which the illegitimate father's name could be registered in the register of births were very tightly and closely restricted—I wondered whether perhaps too much so.
There is a curious old country saying —I have never quite known what it really means in its colloquial sense—that "He is a wise man who knows his own father." But there is undoubtedly some-thing behind this and I personally welcome it, although I am the first to admit that there is an element of risk, because it might well be that in certain circum-stances the curiosity would not stop merely at knowing who the father was and might lead on to establishing personal links. It has been said this afternoon, in a rather lighthearted way, that the real father or mother would become just an extra aunt or uncle. It would be all right when it worked out like that, but if there turned out to be a very sharp—
§ Baroness BACON
My Lords, I am sorry to interrupt the right reverend Prelate, but perhaps I did not make myself clear when I referred to this matter. I was saying that there had been times in the past when foster parents had 62 had to give up a child to the real parents, but the foster parents maintained contact with the child and its natural parents and were looked upon as an aunt and uncle.
§ The Lord Bishop of LEICESTER
My Lords, I apologise to the noble Baroness. I merely got the relationship a little mixed up. But my case will still do as a hypothetical example of what might happen, and all would be well if the situation remained easy and flexible. But if there was a sharp economic gap between the two families—as there might so easily be—there might be complications in the rebuilding of links with the natural parents. I very much agree with what the noble Baroness said about the ease with which local authorities appear to be able to take over parental duties. I thought that balanced rather well what the noble Baroness said earlier, when she hoped that every local authority would be an adoption agency. Evidently the noble Baroness has a very balanced view as to how local authorities should frame their duties and their rights.
A good deal has already been said about the change in the situation, the comparative shortage of babies for adoption, which is, of course, altering the whole scene. We have heard that many of those who are now adopted are adopted by relatives of one kind or another, but the ordinary couple merely looking for a child for adoption find it very much harder to discover one. The causes of this situation are fairly well-known. They are the greater ease with which unmarried mothers, for instance, can keep their children; the increased use of the pill, and the increase in abortion. All these factors are making changes in the social scene, but they mean that a very large number of those who are looking for adoption, who need adoption, are those with some kind of handicap. Even though that handicap may be nothing more than a dark skin, it is something that creates new questions in people's minds when they consider adoption into an ordinary English family. I believe that all of this points to the fact that there will be an increasing need for social workers for the task of supervising adoption in our country.
One point that should not be over-looked is that the new procedure of freeing for adoption means that there will be a period of time after the declaration 63 is made when the adoption agency will be in loco parentis for the child. That will mean a good deal more work and, incidentally, a good deal of expense for somebody in maintaining parental care over what may be a fairly extended period of time. This is not a time when it is easy to contemplate an increase in the supply of social workers, but if this very delicate and personal service is to be carried out with due regard to the many delicate and personal interests involved, we shall, in one way or another, have to provide ourselves with a staff of social workers fully adequate not only in quality and dedication, but also in quantity and number.
§ 5.57 p.m.
The Countess of LOUDOUN
My Lords, the principal intention of the Bill is to promote the interests of, and provide protection for, children who are in many ways vulnerable. This intention is to be highly applauded, as there is no doubt of the immense amount of suffering and distress experienced by the children involved. Everything possible must be done to alleviate all unnecessary suffering, but to do this the promotion of the welfare of children must be seen in its widest context. The most effective way of securing child welfare is to promote the welfare of families generally. The first aim of child care legislation should surely be to enable children to grow up in their families, happily and healthily. Of course, this aim will not always be achieved and there will always be some children who need protection from their families; but the experience of social workers in providing substitute care for children separated from their families reinforces the view that this course is fraught with hazards. Many adoptions do not work out; over 50 per cent. of long-term foster home placements break down, and the shortcomings of institutional care are well documented.
The simple approach of rescuing children from unsatisfactory home conditions often does not provide the right answer. In later life the children them-selves seldom give thanks for it. Far better to obviate the need to rescue in this way. Yet the Bill says nothing about prevention or rehabilitation, nothing about the provision of facilities to enable parents to keep their children—such as 64 accommodation, day care, income main-tenance, home helps and other support services. It is salutary to think of the more fundamental benefit which might accrue to children by even a partial implementation of the recommendations of the Finer Committee on one-parent families. But it is generally recognised that, at its best, foster care is for many children the most satisfactory form of substitute care. It enables children to experience a family life, though separated from their own parents. The relationship between natural parents and foster parents, and, when it is involved, between both parties and the local authority is a very delicate one. In many respects, foster parents have the rough end of the deal. They have very few rights over a child in their care, but they have immense responsibilities.
If the balance is shifted in favour of the foster parents certain children may benefit, but some groups of children are going to be placed at greater risk. First, parents will be reluctant to allow their children to be placed in foster homes for fear of losing them to the foster parents. By Clause 34 of the Bill foster parents will be enabled to prevent the removal of the child if they apply for a custodian-ship order after three years, not continuous; or (in Clause 27) for an adoption order after five years. The danger of sudden removal of children before these deadlines are reached is a very real one. Secondly, foster parents for children in local authority care are agents of the local authority. When a child is either voluntarily received into care or committed through the courts, it is the local authority which clearly is charged with the duty to further his interests and to be responsible for his care. The possibility that a third party, a foster parent, would, in effect, be able to take discharge of that child from care (Clauses 27 and 34) would render it impossible for the local authority to honour its obligations. The effect of this could be profound.
However, my Lords, I welcome the opportunity given by this Bill to amend the law on the care of children; and on the credit side I should like to mention five specific points. First, the requirement (in Clauses 2 and 49) that in all decisions relating to adoption and to children in care the welfare and wishes of the child should be fully taken into account. Present adoption law does not 65 give as much weight to the welfare of the child at all stages as the Bill would pro-vide. Secondly, the new procedures (Clause 12(1)), whereby parents can give consent to adoption before the placement of the child. These should help both adoption applicants and natural parents to cope with a period in their lives of considerable tension and remove much of the present uncertainty and possibility of heartbreak when a child is placed for adoption but when a parent may still change her mind.
Third, the prohibition (in Clause 25) of independent placements for adoption. The present situation whereby a couple who are regarded as unsuitable by a registered adoption agency to take a child for adoption but who, nevertheless, receive a child from an independent source and adopt him, is obviously unsatisfactory. The Bill will allow only authorised bodies to place children for adoption with non-relatives, Fourth, the new concept of custodianship in Clause 30. At present, adoption is the only way in which persons, other than parents, caring for children can obtain legal security for the relationship, even when adoption is clearly inappropriate. This is particularly so in the case of relatives. Custodian-ship orders will enable relatives or foster parents to obtain legal custody of a child. Finally, in Clause 50, the discretion to a court to appoint a guardian ad litem to promote the child's interests in certain legal proceedings. When a local authority is itself a party to court proceedings or the local authority social worker is performing several roles in court, there is an obvious advantage in an independent social worker being appointed to ensure that a child's interests are properly represented and considered.
My Lords, surely it must also be recog-nised that the implementation of the Bill will require a further investment of resources. I feel that the Bill's Financial Memorandum underestimates the extent of the additional resources required. Without these additional resources, the danger would exist of resources being diverted away from preventive and community support strategies which in the long run could only be counter-productive and result in more children being in need of substitute care.
§ 6.5 p.m.
§ Lord REDESDALE
My Lords, like the noble Lord, Lord Wardington. I have to declare an interest in that I have a foster child. Therefore, in examining this Bill I looked at it with a degree of self-interest. First, may I say that I wholeheartedly welcome the Bill, but that in that welcome, as in so many things. I have the feeling that there is a very large "but". For example, so far as I am concerned, I feel that the Bill is far too weak in its statement of the provisions in Clause 2. I believe that this Bill should clearly state in all three main Parts that the child's interest is paramount. To state this merely under Clause 2 I do not think goes nearly far enough. When it comes to "PART III—CARE" the provision is somewhat tucked away in Clause 49; while in Part II of the Bill, dealing with custody, there is no clause actually stating that the child's interest should be paramount.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, the noble Lord need not worry about that; it is by implication of the existing law.
§ Lord REDESDALE
My Lords, I am grateful to my noble and learned friend. However, I felt that although it may be so by implication it could be stated more strongly. I agree that, obviously, the natural parent is of great importance. But I do not agree with some of the ways in which the noble Baroness, Lady Bacon, expressed her views on the importance of the natural parent. The point is that in some cases a child is in care because of some unfortunate situation which might be rectified in the future; but in many more cases it is due to the rejection of the child by the parents. Therefore while I feel that it is all very well to talk about the rights of the natural parent, it must be remembered that in many cases they have already neglected their responsibilities.
I can tell the House of a case in point brought to my attention where a mother of three children had a fourth child due to an extra-marital liaison. This child caused the breakup of the marriage. She left her home to stay with friends until they were evicted because of overcrowding; and the child was taken into care. From that moment the problem started. 67 The mother married again and the child went back to the mother on some occasions. It is too long a story to tell in detail now; but suffice to say that the child went through 13 moves—two with foster parents which broke down and several times back to the mother. The mother's total rejection of the child caused so many problems that the child became very disturbed. There was a long, sad history of five years in which the mother saw her daughter only once; and then came the point where the local authority went to court to assume parental rights. At this stage the mother, as she had done in the past, objected. It seems that people do not act reasonably in cases like this. Although she did not want to have the child, she would not let the local authority assume parental rights and thus enable the child to get into a stable, happy home.
The point I now raise is fundamental. The case came before a small magistrates' court which had no previous experience of dealing with such matters. After a long hearing, during which the welfare officer was subjected to extremely severe cross-questioning by the mother's barrister, an able lawyer, the court decided to re-intro-duce the child to its mother. This was the last straw; the child became even more disturbed due to a final rejection by the mother. The child went back into care and is still in care. Because of the mother's objections, the local authority have not got full parental rights; and the child therefore cannot be put up for adoption. I think that the Bill will cover this point—I hope that it will—since it will provide the local authority with many more grounds for assuming parental rights. I hope that in the end this case will be resolved, but with the noble Baroness, Lady Bacon, I feel that there should be special courts, or magistrates with special training, to examine these difficult cases.
I would also mention the question of timing. I feel that the times are much too long, though I know that under the Bill these can be varied. The times may be quite reasonable in relation to the parents' time-scale, but in relation to a child's time-scale they are an eternity and I hope that in Committee some may be reduced. In regard to fostering, I think that the five years under Clause 27 68 is too long a time and that it should be shorter.
On the question of custodianship, when I first saw this I thought it an excellent idea, but on looking at it further I saw that it had a number of defects especially from the foster parents' point of view. It appears that they have responsibility without total authority. The custodian-ship can be revoked and the child taken out of care. With foster parents of limited means, this could mean that the local authority would not go on paying. It is provided that they may make payments, but not that they have to go on making payments. Problems could arise there.
Clause 38 mentions affiliation orders. I am sure that the point has been carefully considered, but I believe that for a foster parent who assumes custodianship this could create many problems. If the child is not taken out of care, and if the local authority still has the responsibility of looking after it financially we could do away with any affiliation order. I think this would be helpful to the child.
My Lords, as I have said. I find this Bill a great step forward but I regret that it has to be so terribly complicated. If it had stated more strongly at the beginning that the child's interest is paramount, and if we were not merely adding to previous legislation but starting from scratch, I believe that everybody, especially the people concerned, could understand this Bill. If they understood the law better, perhaps we should not have some of the more unfortunate tug-of-love situations that occur from time to time. However, it is a great step forward and I welcome the Bill.
§ 6.13 p.m.
§ Baroness FISHER of REDNAL
My Lords, it is important to preface my remarks on the Bill by saying that the vast majority of parents in Great Britain care very deeply for their children. I do not think any noble Lords would disagree with that statement. It is unfortunate that legislation has to be framed to protect a majority of people from a few sharks, or whatever one likes to call them, or to protect a few children as com-pared with the great many very happy children who are cared for deeply by their parents. I say that to put the matter in perspective.
69 I disagree with one noble Lord who spoke about home conditions. From my own personal knowledge, which covers 25 years mainly in the central areas of the City of Birmingham, I am convinced that many parents are expected to cope with impossible burdens and that their material conditions are the major contribution to many of the breakdowns in family life. I do not know whether many noble Lords in this House have the opportunity to visit homes such as I am describing, where the bath hangs on a nail in the backyard; where hot water does not come through a tap; where the bathroom is the dining room, the TV room, the study and everything else in the house. Living in those conditions becomes a burden for the mother, and it is from those conditions that the break-down of family life and ill-treatment of children subsequently arise.
While under this Bill we are trying to overcome child neglect and child cruelty, and trying to do the best we can in the long run for the child, we have to consider seriously the great need in this country to tackle the poor housing, the low income, with which many thousands of people in Great Britain still live. We must recognise that a very large percentage of the children who come into the care of a local authority come from parents who cannot provide a suitable home or whose home conditions are most unsatisfactory. This is not always the fault of the parents, and is very often the fault of society. Therefore, in considering this Bill we have to look much wider at the social conditions in which many families in this country are forced to live.
I should also like to mention the problem which arises when fathers are unable to cope after the death of the mother, or after separation when the mother has left home. In some instances, the social ser-vices department uses a little more pressure upon the father than is necessary to return to fulltime employment and to place the children into care. Some fathers, especially modern fathers who have been brought up in a situation where there was joint partnership in caring for children, want to take over the dual role, and the home help service, and all the other services which local authorities could provide to fathers, should be extended more.
70 We never say to a mother on the death of the father, "It is imperative that you work". We say, "We will be able to provide you with financial assistance to enable you to care for your children at home". If we are thinking about equality, we should say exactly the same to the father who is left in the position of a single parent. Some consideration ought to be given, either by the social services departments or by the Ministry, to seeing that fathers are given equality with mothers when trying to keep their families together. Even looking at the matter in the abstract way of economics it would be far cheaper for the father to stay at home and do his best looking after the children than to place the children in care which, as we all know, is a very expensive operation.
We have mentioned fostering this after-noon. I have always found fostering a most complex situation. I am amazed at the number of what one might call ordinary people like myself, who have no special knowledge about bringing up children, who do such a first-class job of looking after children who are very often suffering from emotional strains because of unhappy home backgrounds. Very often, they are not what might be called normal children, but they have particular problems. Like my noble friend Lady Bacon, I believe that one should give credit to the foster parents, but the whole idea of fostering becomes complex because of the varying practices and the conflicting value judgments which many authorities put into operation. These are conflicting not only for a child but also for individual authorities and agencies.
One has to recognise that at all stages of fostering the natural parent must be encouraged to visit the child and keep in contact and take some kind of parental interest in the child. This may have to be encouraged by the local social services department. Some local authorities—and I hope they are in the minority—adopt a quiet policy of discontinuing these parental contacts at fostering level. They think they may upset the foster parents and, even more, the child. But I would say that this interest on the part of the natural parents should be helped along, and if that needs to be done by social workers then it must be encouraged.
71 I recognise that parental contact in fostering cases ought to be because of a spontaneous interest and a desire to know how their child is succeeding in the foster home, until they are ready to take over the responsibility themselves. The whole essence of fostering must be a looking ahead to the time when the child is returned to the natural parent. So one accepts that if the spontaneous interest of the parents is not there and cannot be encouraged by social workers, then one has to take all the necessary steps which are contained in the Bill before us.
Then I come to the controversial question of time limits. We must all agree that time limits can become very arbitrary, because they are based on certain kinds of legislation. The first thing that Members of another place often do is to point out that perhaps a child was born the day before the law came into operation, or an old age pensioner was born the day after a certain Act became law. And of course we are all aware of those children who live three miles and one yard from a school and so cannot use the school bus. So these legal decisions become arbitrary. I agree with my noble friend Lady Bacon that it is unfortunate that many of these problems cannot be fully solved in the legal sense. They are human problems and have to be thought about in the way that human beings think—and they do not think legally.
Time limits have to be based on their reasonableness from the child's point of view and not from the parents' point of view, as might seem to be suggested in the Bill. I might contradict myself on this a little later and, if so, I hope noble Lords will forgive me. But what is reasonable for a very young child might not be quite so reasonable in the case of a child of 10 or 11. Therefore, I should have liked to see in the Bill time limits related to a child's age. Legal time limits can be arbitrary. I am sure that Members of this House will know that the older one gets the shorter a year seems, but a year is a very long time to a young child so we have to relate time to the child. I agree with other noble Lords who have already spoken that the long-term interests of the child should be the first and paramount consideration. When I went though the Bill it occurred to me 72 that Clause 2 does not take this fact into consideration. But my observations on Clause 2 would be in sympathy with those of other noble Lords and I feel that it needs strengthening.
There is another aspect of the Bill which I feel has been neglected. I am thinking of a child who is handicapped either in mind or in body, who becomes abandoned in hospital. I do not decry hospital care, because it is very good in many cases for a child with disabilities of mind or body. But such children, if they have been abandoned, should receive the same standards of care as are recommended in other Acts relating to children. If we think about what is good for the healthy child who is deprived of a normal family life, we should say that it is even more important that a child who has been abandoned because of mental or physical disability should have special care. I should like to see the Bill strengthened in this respect, in order to help children who are condemned to long-term hospital care.
Ill treatment may not result in death, as in the case of Maria Colwell and other children; but psychological suffering, emotional neglect and physical violence must have a definite bearing on personality development. Perhaps it might be considered at Committee stage whether the definition of "care and control" should include the words "care, protection or control". I feel that the likelihood of treatment which could impair, either physically or mentally, should be considered by a court when considering the protection of a child. Perhaps we think of protection overall, but the protection is not defined. We talk about a care or control order, but I should like to see the definition of" care and control" including something along the following lines:The likelihood of treatment which may avoidably prevent proper development or which may lead to the impairment of physical or mental health".It follows that the court would need to be satisfied that protection was as important to the child as care or control.
§ Lord GEORGE-BROWN
My Lords, if I may interrupt my noble friend for one moment, I agree on the whole with her argument, but is "protection" to be inserted before "control"? My noble friend seems to be arguing that if you 73 had protection you could lose control. She is not carrying me with her on that. I am with her on inserting the word "protection". Could we have "protection and control"?
§ Baroness FISHER of REDNAL
My Lords, I am looking again at my notes. I agree that I have "care, protection or control" in my notes. I apologise and thank my noble friend for his intervention.
There are some statistics available for what are called "non-accidental injuries". The right reverend Prelate the Bishop of Leicester used the word "euphemism". I believe in calling a spade a spade. "Non-accidental injuries" is the definition and the nice sounding expression for the word "battering". It may astound noble Lords, but the statistics on child battering mean that every day of every week two children are killed by one of their parents. In addition, every day one baby under the age of one year is permanently brain-damaged as a result of parental violence. Therefore, because I feel that child battering is often a life and death issue, this Bill ought to have gone a little further in making sure that child battering is a subject of compulsory notification.
I say that because the Maria Colwell case showed clearly that, as well as the social workers, people were interested in her. The shopkeepers, the neighbours and the school teachers all made reports to various individuals about child cruelty. Obviously, that information must have been tabulated somewhere, or it is to be hoped that it was. If we are asking members of the general public, on any occasion when they feel that children are being ill-treated or are in danger, to notify the people who ought to be able to take preventive measures, then child battering should become subject to compulsory notification. That could easily be included in the Bill.
The child's voice should be heard on all proposals for placement. I am not satisfied that the person who has to represent the child's voice has been sufficiently considered in the Bill. The independent spokesman who will speak on behalf of the child will have only one function—to consider the paramount and important long-term interest of the child. That is all that that spokesman will be 74 doing at the court. In other words, if the child could speak for itself and had knowledge of what it wanted in the long-term, it would be able to speak. Therefore, the spokesman will have to be a special type of person. He will have to be a determined type of person. He will have to be, in many cases, a thick-skinned type of person in order to overcome what one noble Lord called the professional jealousies that arise in certain circumstances?
The children's friend, the children's advocate, the spokesman of the child in guardian, fostering or adoption cases has only one role to play and that is to be on the side of the child. That independence is vital, and I do not go along with the Bill in thinking that it should be a social worker, perhaps from a neigh-bouring authority. Somehow we shall have to develop the kind of person who will specialise in being a child's spokesman. Here I go along with noble Lords who have said that the ideal place to hear these cases is in the family courts. Speaking as a magistrate from the City of Birmingham, we now have our own courts dealing with marriage breakdowns and problems. We are hoping that this kind of procedure can be conducted in the same atmosphere.
If I may come on to specific points, I should like answers to some questions if they can be given. Regarding Clause 24 and obtaining a birth certificate, I have not been able to do as much research as I should have liked, but the Bill says:The Registrar General shall on an application made in the prescribed manner by an adopted person".Does the "prescribed manner" mean that there has to be a court order before proceedings can begin? From the researches I have done, it appears that a court order is required. Might that deter the child or teenager from making the application?
I see Clause 29 as a method of giving a special allowance to substitute parents. If we agree to make a payment for substitute parents and refuse to make a payment to the one-parent family, I can see anomalies arising whereby the single per-son who might want to keep her child, and will be able to do so if she is given a special payment, is disregarded, yet the person who adopts her child will be told, 75 "Yes, we will give you a payment". It seems a contradiction if, on the one hand, we are not making a recommendation for one-parent families to have special financial support, yet, on the other hand, are doing it for adopting parents. Like other noble Lords, I think that Clause 30 needs clarification. Perhaps this is because I have not read it as closely as I ought to have done, or have not done as much research on it, but it seems rather muddled. What happens to the child who is subject to a care order or a Section 2 order under the Children Act 1948? I can see that there might be some conflict of opinion as to what happens to a child in those circumstances.
On Clause 47, as other noble Lords have mentioned, I am not happy with the reference to the three years preceding the passing of the resolution. A husband may die and the mother could undergo severe mental stress and, as a result, go into a mental hospital for two years. She then has to start finding a home for her child, whom she did not want to give up but it had to be placed in care because of the home conditions brought about by the death of the father. In those circum-stances this three-year period may mean that the mother will be penalised rather unfortunately.
I give my support to the Bill but, like other noble Lords, I feel that it can be successful only if we give serious consideration to the financial resources that will be necessary for local authorities and others to put into operation the necessary reforms which are contained in the Bill. Therefore, I hope that the Government will think very seriously about the financial implications and help which will be forthcoming, perhaps to make the lives of so many children a lot happier.
§ 6.40 p.m.
§ Baroness MASHAM of ILTON
My Lords, I should like first to congratulate the noble Lord, Lord Wardington. I am particularly pleased that he has made his maiden speech on this Bill. I take part in this most important debate today for two reasons: first, the noble Earl, Lord Swinton, my husband, and I have two adopted children; and, secondly, for years I have been connected with boys in borstal. I have met many boys who have lived their childhood years in children's homes 76 and have then been cast into society with few friends and no roots. If this Bill can help these children who are deprived or parental care and family life, then I certainly welcome it. Many parents will be grateful for the new power given in Clause 12 of this Bill. Parents have complained in the past that the renewal of their consent and the involvement of the extended court procedure added considerably to their understandable anxiety. This power will also help adoptive parents and adoption agencies.
I welcome, like other noble Lords, the recommendation of the Bill whereby each local authority is obliged to establish a comprehensive adoption service, and that this can be done in co-operation and partnership with volutary adoption agencies. I should like to ask the Minister whether local authorities will really give to the voluntary agencies the support and help which will be needed so that they can keep up high standards. On the training of social workers, I should like to agree with the noble Lord, Lord Wigoder. It must be remembered that some social workers are rather young and inexperienced. Not only does this Bill introduce new concepts in adoption and child care legislation, but it abandons some previous concepts of the law which I hope your Lordships' House will examine closely before giving agreement. Under existing legislation it is possible for the natural parents to impose conditions on the consent they give to their child's adoption. Especially they are able to determine the future religious upbringing of their child by its adoptive parents. Many people might argue that once parents decide to request adoption for their child they should give up the right to everything. My Lords, does this mean that they must show no care and no concern for the future of their child if they so wish? May they no longer request their child be adopted by a married couple rather than a single person? I believe it is reasonable to give some attention to the wishes of natural parents, and I understand that the Departmental Committee also recommended that consideration should be given in this matter.
I cannot speak for those who feel strongly from other religions about this matter, but it has been rather vaguely mentioned (if he will excuse me) by the right reverend Prelate the Bishop of 77 Leicester for the Church of England. I should like to put a Roman Catholic's point of view. If a devout Roman Catholic girl gives her child for adoption because her circumstances make it so, and she cannot state that she wants her child to be brought up a Roman Catholic, this may greatly increase her feeling of guilt. Through devotion to the Virgin Mary, the mother will not feel completely cut off from her child if she knows that the child is being brought up in her own faith, which to her will be a safeguard. Many natural mothers make great sacrifices giving up their children, and for this the adoptive parents are very grateful.
Clause 7(4) of the Bill states that the adopted child is to be treated as if born of the marriage. I here declare an interest, along with the noble Lord, Lord Warding-ton. I find as a Life Peer that my two adopted children cannot have the Title of "Honourable", but natural children born to other Life Peers in your Lordships' House can. If I were to have a baby, which I still could, that child would have a title. How would I explain this to my adopted children? Would I have to tell them: "The law says you cannot have a title because you are adopted"? Even without a natural child, I shall still have to tell them this if they ask me. I should like to ask the noble and learned Lord on the Woolsack, and the Minister, whether anything can be done to eliminate this distinction. I feel that somewhere somebody thinks that adopted children are still second-class children; and I am quite certain that the noble Lord, Lord Wardington, will tell you that we take these children as our children.
§ 6.46 p.m.
§ Baroness MACLEOD of BORVE
My Lords, in these days when the adults of our country seem to have lost their way it is heartening to be able to welcome this Children Bill in your Lordships' House. I think it is the most important Bill we have had before us in the last twelve months, dealing as it does with the present lives of the future adults of our country. We have waited a long time for it, but now that it is before us I should like to thank the Government for allowing it to start in this House, and especially the noble and learned Lord who sits on the Woolsack for introducing it. As every noble Lord who has spoken this 78 afternoon has emphasised, this is a very comprehensive Bill, and I can hope to touch on only a very few aspects of it, especially as the hour is late.
I have found out that in local authority care in 1973 there were 9,448 children in homes accommodating not more than twelve children. But that is not to us a normal home. There were also 6,000 children in care who the authorities think need ordinary homes. The authorities are doing their best to provide normal parental upbringing in these smaller homes, but they cannot do more than their best and their best is perhaps not good enough for some of us. I am particularly pleased by Clause 10, which means that a single person can adopt a child. As everybody will know, this has never before been possible. There are so many cases where, for instance, both parents have been killed in a crash, or both parents have vanished or perhaps both have died naturally, and an aunt takes over a child or perhaps several children of a family. However, a single aunt or a single uncle has, I think, never been able to adopt such a child; and this provision is a very important part of the Bill.
Under Clause 14(4), I do not agree that an adoption agency should have the sole right to bring the child before the court. It is important that a guardian ad litem should be found for the child, and that the guardian ad litem should be responsible for delving into the past of the child and the past of the proposed adopters. I do not think that the adoption agencies now have, or are likely to have in the future, the facilities for finding out in great depth the background of both child and adoptive parents. Unlike the noble Baroness, Lady Fisher, I think that to give an allowance to adopters in certain very rare circumstances might help enormously. In the last few days I have been hearing of very poor foster parents who have brought up children and who have been paid, as is normal, by the local authority. They have become devoted to them, but because of their financial circumstances they have not been able to adopt, purely because adoption would mean that they would no longer have the financial help that fostering gives. However, if Clause 29 is implemented, in certain circumstances as adoptive parents they would be able to be given some 79 money. I personally welcome that proposal.
Many people have also said that the adoption service will be difficult to run because so few people are adequately trained. I have been talking to the head of the Children's Department of a very large London borough and she said that she welcomes very much the help given by older people—not necessarily professionally qualified people but people who have wide experience, understanding and sympathy with the problems that they meet. She has sought their help and their guidance and has found them to be of enormous benefit. Therefore I hope that the social services in the country will be encouraged to use people of a perhaps slightly older age group who may not have gained the necessary qualifications. In my court—I hope I am not unusual, although perhaps I am—we are adamant that a child should always be represented. As chairman of my juvenile court, frequently I put cases back because I feel that nobody is quite dispassionately and quite separately representing the child. Obviously this applies not only in adoption cases but covers the whole spectrum of the cases I deal with in the juvenile court. However, I agree very much with the noble Baroness, Lady Fisher, that the spokesman must be a very special person. If this practice is adopted, I think that the spokesman should also know the child. I do not think it should be a person who is just put into court, given some papers and told, "Represent this child". I think that this person should have real knowledge of what the child wants, otherwise surely there is no point in representing the child.
Custodianship I welcome. Rather like the noble and learned Lord, Lord Hailsham of Saint Marylebone. I am not absolutely certain that it is very important, although in one sphere it is. I have had a few problems with grandparents who want to adopt their grandchildren. I can think of two cases where the father has gone to prison and left his child with his parents. Perhaps the prison sentence was for three years. The grand-parents brought the child to court and said, "We want to adopt this child", but in both cases we refused, purely because when the adult prisoner comes out we feel that he will want to resume his 80 parental control of that child. Therefore we did not think that it was wise to give control to the grandparents who were very much older. A custodianship order would have been enormously helpful in those two cases. On the other hand, I have had experience of 36-year-old grandparents. The father was a schoolboy of 15; the mother was a girl of 18; the child was being brought up by the father's parents who were 36 and 37. It is hard to imagine, my Lords, but it does happen, and in those particular circumstances we granted an order which enabled the grandparents to adopt the child. We hoped that that was right and I think that our decision has proved to have been right.
My Lords, there are many children in this country who need homes other than institutions. As I have tried to indicate, I would never say that local authority care is institutional; local authorities try so very hard. I do not know how many of your Lordships remember a television programme in the middle of last summer (perhaps I should declare an interest in that I am a member of the Independent Broadcasting Authority which allowed this programme to go out) about adopting children. Four children were put on the television screen as being in need of homes. Your Lordships will be interested to know that there were 6,500 letters and telephone calls as a result of that one television programme. Three of the children were then in the care of the local authority. For one of them a home has been found; parents have already adopted that child. Another child was returned, oddly enough, to his mother. A third child was almost impossible to place because the child had very bad defects. The fourth child was in a National Children's Home, and that child has been placed. Two thousand people were followed up by means of forms and were seen, and 100 people have been asked and have been adjudged fit people to provide permanent homes for children.
My Lords, this is only the tip of the iceberg. I think that it is the duty of everybody in this country to see that our children are brought up with love, care and a stable background. If only we could ensure that none of our children was deprived of these three necessities we could happily leave our country in their hands, but in this Bill we are trying to 81 make the lives of some of them happier. I commend the Bill.
§ 6.59 p.m.
§ Lord HYLTON
My Lords, I rise with some trepidation because although I my-self am the parent of children I am the merest beginner when it comes to the law concerning children. I wish to try to make three points, one of them general and two specific. The general point is something of a scandal which has existed for many years, something which should be a shame to a civilised society and something which causes great anxiety and suffering both to parents and children. I refer to the number of children in the care of local authorities, simply because their parents are homeless or because they have been living in totally unsatisfactory physical conditions.
The last date for which figures were available was March 1973. In the year up to that date no fewer than 7,000 children had come into care for these reasons. The weekly cost at that time in a local authority home was £28.64 per child per week and the average parental contribution recovered to meet that cost was only 48p per week. So not only is it something that causes great suffering, it is something that causes great loss to the country as a whole in financial terms. The remedy clearly lies in the housing policy and is outside the context of this Bill. Nevertheless, it is most important that those who care about children should be aware of this most unsatisfactory and appalling situation.
My first specific point deals with Clause 11 and here I should like to support wholeheartedly what my noble friend Lady Masham of Ilton said concerning the rights of a mother to specify in what religion her child shall be brought up when it is adopted. If the Bill goes through as it is at present drafted it will give great offence, not only to Christians and members of other traditional religions but also to Humanists, who may well have strong views on this matter. I venture to dissent from the view expressed by the right reverend Prelate the Bishop of Leicester, who said that they could go to the appropriate religious adoption agency. Particularly for the minority religions the fact is that coverage of the whole country by their own adoption societies is extremely patchy. 82 I should like to see this Bill impose a duty on all adoption agencies to respect the religious wishes of the mother. Where suitable adopters of the appropriate faith can be found, they clearly should have the child. There will be cases where it is not possible to find suitable adopters of the right faith, and in that type of case it should be the duty of the agency to find adopters with understanding and sympathy for the faith in question.
My second point deals with Clause 50, and I should like to ask Her Majesty's Government whether they have taken note of the views expressed by Dr. Kellmer Pringle in the Observer of 19th January and, if they have, will they bring in Amendments to meet them. It will be known to your Lordships that Dr. Pringle is the Director of the National Children's Bureau. Very briefly, their argument (with which I agree) is that the Bill should make mandatory the appointment of an independent spokesman for the child in the following four types of case: First, decisions about returning a battered child to those who have abused it; secondly, where parents seek to revoke a care order made because of neglect or ill-treatment of a child; thirdly, children caught in the "tug of love" situation between, for example, divorced parents or would-be adoptive parents or foster parents or relatives; fourthly, where children are forgotten and remain unvisited in institutional care for more than six months. In these cases the natural parents should have to show cause why parental rights should not be assumed by the local authority in order that the local authority may find long-term substitute parents.
The question arises as to what should be the duties of a spokesman for the child? I think these are three: First, to represent the long-term interests of the child; secondly, to brief a lawyer on behalf of the child whenever this may be necessary, and thirdly—and this goes beyond what has so far been discussed in this debate—to keep in touch with the children who have been transplanted from one home or set of parents to another. There has been some discussion already on what type of person should be the spokesman. I believe it should be a lay person—someone with direct experience of children plus some basic training in child development.
83 The spokesman might be a social worker or a lawyer, as the Bill suggests, but many other counselling professions would be just as suitable and many lay people who now serve in such capacities as Samaritans or marriage guidance coun-sellors, or indeed jurymen, would be just as suitable. In cases of suicide, or marriage counselling to avoid the break-up of a family, or juries deciding difficult cases—these are sometimes matters of life and death—if we cannot draw in people of the right calibre to represent and speak for children, then the rights of the child, in the sense of its interests being paramount, of which many noble Lords have spoken earlier, will not be effectively represented. I hope that the Government will bring in their own Amendments or will accept other Amendments on this point.
§ 7.6 p.m.
§ Baroness YOUNG
My Lords, I should like to begin by congratulating my noble friend Lord Wardington on his maiden speech. He spoke with sincerity, with clarity and from personal experience, and I hope that we shall hear more from him on many other occasions. May I say too how pleased I am that such an important Bill as this has been introduced in this House, and I should like to add my thanks to the Ministers who have made that possible. I offer the apologies of my noble friend Lady Elliot of Harwood, who is unable to be present today but who will be speaking later particularly on the Scottish clauses.
The number of noble Lords who have taken part in this debate is an indication of the great interest in this Bill and the degree of expertise that this House has to offer. I hope that during the passage of the Bill we shall have time to do full justice to this interest, and above all to the needs of children who will be affected by it. This is an important Bill for many reasons, not least of which is the opportunity that a debate such as we have had today gives us to devote our undivided attention to the needs of children, who in some respects are like the silent majority: not in the Victorian sense of being seen and not heard—quite the contrary, some of them make a loud and singularly disagreeable noise—but because children cannot vote and exercise their power in a democracy, nor have they a 84 pressure group. It is therefore all too easy for politicians and others in public life to forget the needs of children until some appalling case of child neglect reaches the headlines of the newspapers, or the social workers in new social service departments, coping with the new service within a reorganised local government, find that they have neither the time, the experience nor the resources to cater adequately for the needs of children in their care. Often the consequence is that we hear the disagreeable noise of children because we have never had the time to stop to listen to what it is they are trying to tell us.
I have received much advice and many memoranda about this Bill, all welcoming it, and I am very glad to add my welcome to it. The three Parts of the Bill, on adoption, the new concept of custody and the amendments proposed to the law on child care, rightly put a new emphasis on the interests of the child. The Bill attempts to balance the needs of the child with the rights of the natural parent and by proposing, as it does, in Clauses 8, 27, 30, 34 and 46 new time limits on adoption and removal from care, the Bill gives statutory recognition to the vital importance of the passage of time in a child's life and the equally vital importance of securing continuity of care in a child's development. Based as the Bill is on the Houghton Committee's recommendations, the arguments on all the complexities of the relationships between the child, the natural parent, the adoptive or foster parent are weighed and considered. I welcome particularly the proposal in Clause 12 whereby a mother can free her child for adoption and does not need to be contacted again when the adopters lodge with the court their application to adopt. This should help not only the mother in the difficult decision she has to make, but the adoptive parents in the anxiety they face while the proceedings continue.
The Bill is a recognition of the fact that fewer babies are being offered for adoption, although the number of couples wishing to adopt remains as great. It indicates increased public awareness that there are a number of children, 5,000 or 6,000 of them, who wait in children's homes, whose parents take no interest in them but who cannot be adopted because these same parents will not give 85 their consent. These will be different types of children for adoption—some coloured, some with handicaps; but in principle, provided that suitable adopters can be found, there is no reason why they should not be adopted and have that security which is the right of every child, of being part of a family.
On the other hand, the Bill takes no account at all of any of the recommendations of the Finer Committee on one parent families, in particular those sections with specific recommendations on children. Indeed, so far as I can see from reading the Bill, the Finer Commit-tee Report might never have been published at all. It could well be that for many years to come we shall not get another opportunity of discussing children. I hope that an opportunity is not being lost of attempting to implement some of the valuable suggestions in that Report. Nor, indeed, does the Bill make any mention at all of family courts. Some would argue that with its emphasis on adoption, this is being offered as a cure-all for deprived babies and children. We should all be aware of the danger of offering only one solution as a panacea for the complexities of human beings. As the noble Baroness, Lady Bacon, so aptly remarked, no two cases are alike.
My Lords, turning now to the Bill in detail, Part I on adoption proposes a major extension of the adoption service, Not only are all local authorities to become adoption agencies, some of them not having done this work before, but the work itself is to be extended by way of offering help both to parents who have adopted children, and to those who would like to do so but have not been accepted as adopters. This is a very con-siderable extension of work, and it raises two major points—one of cost and one of staff. I regret to say that I have no hesitation in saying that in my view the financial provisions are inadequate. So far as I can see, they are based on the hope that more children will be adopted and therefore there will be fewer children in children's homes; thus there will be a saving in expenditure. At best, this can only be a hope. It must depend on many imponderables, not least that the hoped-for adoptions will take place, that they will be successful. I should have thought in a wider context that the whole structure of society and family life will not 86 continue on its dismal course of ever increasing numbers of broken homes Apart from this, it seems to lead out of the proposal in Clause l(2)(a) that temporary board and lodging are to be provided for mothers and children. This is a very expensive undertaking, of course, although not one with which I disagree at all.
I looked carefully at the local government circular which has just been issued to local government by six Government Departments. I think it is worth quoting in full the short paragraph on this Bill. It says:The Children Bill at present before Parliament will not give rise to any significant expenditure in 1975–76. It is intended to consult with local government before it comes into effect on the consequences of its implementation.I do not really think that that is very helpful. All it tells us definitely is that the Bill will not come into effect until 1976, which may well be a wise decision, and not one with which I shall quarrel. But we must know something more about the cost of this work, because the second major cost will be that of staff.
I believe that adoption is a service which calls for the most skilled and expert staff. I believe without equivocation that the only people who should undertake adoption work are trained specialists. Although I know this is controversial, I do not believe that generic social workers are necessarily the right people to do this work. All too easily under this Bill a young social worker, straight from a generic course supervised by someone whose life's work has been in the care of old people, who no doubt has been brought up to date by a three-month management course on how to run a social service department, could be left with the most delicate task of arranging an adoption, a task calling for skill, experience, insight and imagination, for in a sense the person is acting as God. It seems to me that unless there are trained specialists the work will not be effective. Where are these specialists now? Where will they be trained? Are they to be taken away from existing services? Who is to pay for them?—the ratepayers, the taxpayers through the rate support grant? Or are other parts of the social services to be run down to pay for the new services? This cost must be seen against the general economic background. 87 Therefore, it is slightly disturbing to see the Secretary of State, the right honourable lady, Mrs. Castle, quoted in The Times of November 7 as saying, in reference to the amount of money to be spent on social services:I will tell you frankly you are not going to have it so good next year."—that I take to be 1975–76—You will not be surprised if there has to be some check on this considerable growth.If the Government have not thought through the financial implications of this Bill, I believe that it is absolutely certain that it will go the way of the 1969 Children and Young Persons Act. It will become, in effect, a dead letter. All the hopes being expressed today will be dashed; the public will be angry because they will have been deceived. Social service departments will be blamed because they will not be able to do the work effectively, and, above all, the children will suffer. I hope the Government will say something about the maintenance of standards of care both in local authorities and in voluntary societies. In my day, when I was chairman of a children's committee, children's departments were under the Home Office and underwent regular inspections by Home Office inspectors. I am a great believer in this. A good agency or department has nothing to fear from an inspection, and the bad one can be improved. Modern social service departments are not inspected by the Department of Health and Social Security, but they do have social work advisers. I am not clear about their function or whether they ever produce reports on what they see and find, or on what they have to suggest. All I know is that members of the public would want to be satisfied that an agency, whether from a local authority or a voluntary society, is doing good work.
This brings me to the point about voluntary societies. I was very glad that my noble friend Lady Northchurch raised such important points as she did, and that the Bill recognises the importance of voluntary societies. I believe there are at present 57 voluntary societies in England and Wales, and nine in Scotland. What worries me is that Clauses 46 and 47 appear to apply a double standard to children in care. Clause 46 gives a new power to local authorities in that a 88 parent may not remove a child in care under Section 1 of the 1948 Children Act if that child has been in care a certain length of time, without giving 28 days' notice of intention to do so. Obviously, quite rightly, this is to give security to the child. But the same provision does not apply to a child in the care of a voluntary society. I do not quite know why not. The children are surely equally important, and surely should be treated on equal terms.
Moving to Clause 47, voluntary societies are still not given the right to assume parental rights under Section 2 of the 1948 Act. It is perfectly true that voluntary societies are enabled by this clause to ask local authorities to assume parental rights for them. I believe this to be an improvement, but I am told, and I believe this to be the fact, that there is great variation of practice between one authority and another in their interpretation of Section 2 of the 1948 Act and that some children in the care of voluntary societies would not be accepted under Section 2 of the 1948 Act by local authorities. It seems to me that these children are still at risk of being removed abruptly with all the upset and disturbance to the child. I hope the Minister will be able to assure us that there is no intention to treat voluntary societies differently from local authorities in this respect. After all, under Clause 3 of the Bill once they have the approval of the Secretary of State they enjoy equal powers with local authorities in adoption. Why not in the care of children?
My noble and learned friend Lord Hailsham has spoken at length on the new concept of custody. It is, I realise, an interesting proposal, and no doubt is a recognition of the fact that many children now being adopted are legitimate and are being adopted by the new partner of a re-marriage following upon a divorce. Of course, adoption was not really designed for this kind of situation which could have serious repercussions for the child who could be cut off from the relationship with the former parent. I am sure, therefore, that this is a matter which should be looked at.
I am bound to say that on reading the clauses on custody, I am not myself very happy with the term. Many others have remarked on this, and speaking as a lay person it reminds me of something to do 89 with prisons. I cannot say I am sure that this is what the Government intended, but I do not think it is a happy choice of word. I think there is a weak-ness in the proposals. I am not sure that they will always help the foster child. It could well be that the parents would not want the child fostered for fear that the foster parents might seek custody of the child. Foster parents can apply for custodianship after three years under Clause 34, or for adoption after five years. Before these deadlines are reached, parents could remove their children from care and then another of the famous tug-of-love cases could develop.
My Lords, in an intricate and complex Bill like this there are many detailed points I should like to raise, but time does not allow full discussion of them now. We shall return to them on Committee. But before concluding I should like to touch very briefly on one or two other points of importance. The first is a practical matter. I wonder whether there is not a case for consolidating legislation on adoption now. It has been suggested to me that as this Bill repeals nearly all of the first three Parts of the 1958 Adoption Act and many are reintroduced in a modified form, it would be helpful to repeal in their entirety those Parts of the 1958 Act and make this Bill a consolidating measure. This would make understanding and interpreting the legislation that much easier for those working in social service departments and voluntary societies. Of course I know the arguments on this only too well, and I am sure the noble and learned Lord who sits on the Woolsack will have a very good reply to it. I well remember the discussion on this on both the Protection of the Environment Bill and the Control of Pollution Bill. But nevertheless, Acts of Parliament have to be read and under-stood by many people who are not lawyers, particuarly in the field of social service, and I hope the Government will consider this matter.
Many people have spoken on Clause 11, and I believe voluntary societies in particular are worried about the mother's wish in regard to the religious upbringing of her adopted child. I find myself in full agreement with the remarks of the noble Baroness, Lady Masham, and the noble Lord, Lord Hylton, on this matter. I have read fully the arguments on this 90 question and I do not believe that it is necessary that a mother should be obliged to say how she wishes her child to be brought up, but if she does express a wish that her child should be brought up in a particular religious belief then I believe that this wish should be respected. I feel that the right reverend Prelate the Bishop of Leicester was being perhaps a little optimistic if he thinks that in any part of the country a mother could find a voluntary society that would take her child.
§ The Lord Bishop of LEICESTER
My Lords, would the noble Baroness permit me to intervene for one moment to remind her that if the mother opts for the second of the two procedures she can make any condition she likes before she gives consent.
§ Baroness YOUNG
My Lords, I quite accept that, but I do not think one wishes to suggest under either procedure that the mother shall not be able, if she so wishes, to state the religion of her child.
There has also been a great deal of discussion about Clause 13. As the clause stands, an officer of the local authority social services department could well be the adoption officer and another officer of the same authority the guardian ad litem. No doubt the rules will have something to say about this, though the Bill does not. Although the clause says that another person may be the guardian ad litem, when it is read in conjunction with the Financial Memorandum I really wonder whether this is intended to be carried out. Because the Financial Memorandum, in the top paragraph of page v, says:It is proposed to give the court power to appoint a social worker to act for the child from the social workers already available to courts for guardian ad litem duties in connection with adoption proceedings whose salaries are, and will continue to be, borne by their employing authorities.This does not suggest that other people are likely to be doing this work. There is no mention at all of any proposal for a children's advocate, or indeed for the panel of experts recommended by the Houghton Committee. Both these points were made by my noble friend Lady Macleod when speaking about whether the interests of the child are being safeguarded adequately—because, of course, for all of us in the background is the 91 tragic case of Maria Colwell. Again in Clause 50, which I have no doubt was put in to meet the very criticisms arising from that tragic case, the proposals are limited to care orders and do not apply to adoption orders. Can we be certain that even after the passing of this Bill there will not be another similar tragedy?
There has also been a great deal of discussion of Clause 24, whereby an adopted person may obtain his birth certificate on reaching the age of 18. I realise that this is a very controversial matter, but one must weigh very carefully the needs and rights of the adopted person with those of the natural mother. What-ever happens in this regard, I think the legislation should not be retrospective.
My Lords, no one can legislate for social work practice, but we are being asked in this Bill to take a great deal on faith, as so much is to be left to regulations: the criteria for adoption agencies under Clause 3; the regulations on staff; the regulations and rules for appointment as guardian ad litem under Clause 13; and the rules in conflict of interest cases under Clause 50. It would be helpful if the Government would say something of their intentions as the Bill proceeds.
My Lords, I do not want to conclude this debate on a controversial note. I hope I have said enough to indicate that my interest in this Bill is in seeking always the best interests of the child, and in so doing to get the Bill right. I find myself sometimes getting very tired of hearing the adult population talk so much about their rights and so little about their duties. But I believe above all that babies and children have rights. They do not ask to be born, and when they are it is the duty of adults to protect them, to care for them and to love them, and for our part here today it is our duty to provide the best framework within this Bill, one which I welcome, to help those who are not blessed with a happy family life.
§ 7.30 p.m.
§ Lord WELLS-PESTELL
My Lords, I should like to begin by offering my congratulations from these Benches to the noble Lord, Lord Wardington, on his maiden speech. He will not mind if I say that I hope he will not take the same length of time before making his second speech as he took to make his 92 first speech. If he is able to make contributions to your Lordships' House in this field, we shall be very glad to listen to them. No speech is more valuable than one spoken from a good deal of experience. The noble Lord and I have a number of things in common. We are fairly near neighbours in Oxfordshire, our birthdays are within a few days of each other, and I made my maiden speech in much the same field as he made his today. I am only sorry that the Bill is not being introduced tomorrow, and then I could have wished him many happy returns of the day. But I do so today, and I know that the House will share in my good wishes to him.
I am glad that noble Lords have seen fit to give this Bill such a warm welcome. Obviously, we realise—and none better than the noble and learned Lord on the Woolsack—that there will need to be Amendments at Committee stage, and it will need to be looked at very carefully. I suppose that one of the pleasant things about having a Bill of this nature introduced first in your Lordships' House is that—let us be quite frank about it—there is so much ability, competence, know-ledge and skill in your Lordships' House that we can put right anything in the Bill that needs putting right. I know that the noble and learned Lord on the Woolsack hopes, as I and my honourable friend the Minister of State do, that when this Bill reaches another place we shall have amended it to advantage.
I do not pretend that I shall be able to answer all the questions that have been put this evening—I do not want to keep your Lordships here for the necessary length of time—but there are one or two matters to which I should like to draw attention. The noble and learned Lord, Lord Hailsham, and a number of other Members of your Lordships' House, raised the question of the definition of guardian-ship and custodianship. I do not want to be drawn into that argument, because this is a legal nicety and it should be left to the Committee stage for noble and learned Lords to do battle and decide what is really meant by these two terms. But I will say that I have before me a note from the Home Office which says that the basic difference between a guardian and a custodian is that, whereas a guardian replaces a parent and has responsibilities relating to both the person and the 93 property of the child, a custodian takes over only his responsibilities relating to the person of the child, usually in a parent's lifetime, and has no responsibilities relating to the child's property.
This may be too broad or too narrow a definition, I do not know But the noble and learned Lord, Lord Hailsham, asked why a lot of this is not being incorporated in the Children and Young Persons Act 1969. The short and truthful answer is that that Act has not been in operation very long and, given the major upheavals caused by the reorganisation of social service departments following the implementation of the Seebohm Report in last year's local government reorganisation, it is fair to say that social service departments have not really had a fair trial as yet. There are many of us on this side of the House who are critical of the Children and Young Persons Act 1969. I know the attitude of the Magistrates' Association and of a number of other people. But it is still early days, and it was felt better to deal with this matter as a separate Bill.
The noble and learned Lord, Lord Wigoder, raised one or two matters. In reply, perhaps I may say that adoption is final and irrevocable, and although the welfare of the child is an important consideration the court must take account of the views of the parents before making the serious decision to sever all links with their child. I am sympathetic to the idea that the interests of the child shall be paramount—and this was raised by a number of noble Lords. But if the interests of the child were paramount— and I think that it may be argued that that is implied in the wording of Clause 2—then the kind of situation raised by the right reverend Prelate could not have been met at all. I think we all know —and the courts will know—that there is upon the courts an obligation to dis-charge a responsibility which will take into account all those things which are of supreme importance to the child.
On the supply of adoption officers and guardians ad litem—this was also raised by the noble and learned Lord, Lord Wigoder—the Government intend to carry out the Houghton Committee's recommendations that panels of experienced social workers drawn from local authority social services, the Pro- 94 bation Service, and voluntary organisations shall be set up. It is from these panels that the court will be able to appoint the officers it needs for the purposes set out in the Bill. Guardians ad litem are already appointed in every adoption case, and these are mostly social workers of the kind envisaged for the panels. I would suggest that the basis for the new system already exists.
I do not share the pessimistic view of the noble Baroness, Lady Young, with regard to people from the local authority who might be regarded as a sort of judge and jury, because they are employed by the local authority and have to make reports which at times might be adverse to the local authority. We have to face the fact that in the professional social services today there is an enormous body of experienced people— and I think that this situation is to be found in every local authority. I am not suggesting for one moment that every social worker in the employ of the local authority is highly trained, but we tend to think too much of those who are in the process of in-service training and further training, and we do not pay regard to the tremendous amount of competence, ability and expertise that is to be found among many of the more highly placed social workers.
My understanding of the situation— and I do not think I am wrong about this —is that they will be drawn and nominated by the Director of Social Services from among people who will be bringing to the job they are asked to do a good deal of knowledge and skill. I am familiar with the field of professional social work, and there is no anxiety in my mind on that score. On the point raised by the noble and learned Lord, Lord Wigoder, and a number of other noble Lords as well as by the noble Baroness who has just sat down, this will be done gradually. This is not coming in on 1st January 1976.
I imagine that the various clauses will take something in the region of two years to fully implement, although I do not know for sure. We shall not have the perhaps almost indecent haste of the Children and Young Persons Act. There will be a good deal more continuous thought and discussion going into the 95 implementation of the various clauses in this Bill.
I want to say a word about inheritance rights, raised by the noble Lord, Lord Wardington, and the noble Baroness, Lady Masham of Ilton. The persons who can be the objects of a trust are, in the first instance, specified by the instrument itself. Settlors can make it plain whether they wish adopted children to be included or excluded, but many instruments refer to children or issue only. Clause 18 pro-vides rules of construction for interpreting words of that kind. These new rules will apply to deeds made after 1st January 1976. In relation to such deeds the clause will assist the adopted child in the circum-stances which the noble Lord, and I think the noble Baroness, have in mind. This is because it will abolish the present rule that an adopted child is treated by the law of property as a member of the new family only in relation to deeds made or trusts set up by will after he has been adopted. I cannot give your Lordships a satisfactory answer about courtesy titles. However, this is a matter which I know has occurred to the noble and learned Lord on the Woolsack. I know that he proposes to look into the issue and no doubt will be able to say something to the House at the appropriate stage.
The noble Lord, Lord Gore-Booth, raised the question of child-minding. There is not much that I can say about the subject at this stage, except that child-minding is one of the many aspects of child care that is under continuing consideration in the Department of Health and Social Security. That is not just a phrase. It really is under continuing consideration. This is not just a sop to the noble Lord or to the House. This is a matter which exercises very much the minds of the Department. The Department is following with interest several research projects that are being carried out in this field. It is co-operating with some local authorities in some experiments in day care. So it is not a matter to which we are not alive and is something with which we are trying to deal.
A number of noble Lords, particularly the noble Baroness, Lady Bacon, and the noble Countess, Lady Loudoun, raised the question of finance. It is true that millions of pounds are spent by local authorities 96 every year on keeping people in care. The cost of the service which is envisaged in the Bill cannot be closely estimated but, as your Lordships will have seen, it is thought to be in the region of about £2.5 million a year. As the noble Lord, Lord Hylton, said, it costs about £1,480 a year to keep a child in care. I am not for one moment suggesting that one will offset the other, but if, when it becomes an Act, the new Children Bill works along the lines that one hopes will develop, there should be a considerable saving in the cost of keeping children in care, which is a colossal sum these days. It is true that you cannot introduce a new service at any time without involving—as in this case— the local authority and the ratepayers in a certain amount of additional expenditure. But we hope that the purposes behind the Bill will ensure benefit not only to the child but to the community as a whole.
I now want to deal with another point raised by the noble Baroness, Lady Bacon. Assumption of parental rights by the local authority is not final and there are numerous safeguards. The parents can object to the local authority's resolution. If the local authority wishes to continue it, it has to go through a juvenile court to resolve the matter. A new provision in the Bill—Clause 48— provides the extra safeguard concerning an appeal to the High Court. It is open to a parent at any time to apply to resume parental rights, and if the parents' circumstances change this is the step they would normally take.
The noble Baroness, Lady Bacon, and the noble Baroness, Lady Young, raised the question of family courts. All I can say at this stage is that the most recent statement of the Government's policy regarding family courts was made by the Attorney General in another place on 18th December 1974. Briefly, this is what he said:Decisions as to the Committee's recommendations on family courts must await decisions on the other main recommendations of the Committee and receipt of the Law Commission's Report on the Matrimonial Jurisdiction of Magistrates' Courts. The Government have not yet reached a decision as to whether family courts should be introduced.The only thing we are awaiting is the decision, but as noble Lords will know there is a very strong feeling—not only among members of the legal profession 97 but among lay people generally—that this would be a desirable move.
The noble Baroness, Lady Northchurch, raised the matter of consolidation. At this stage, I cannot be very helpful. We have in mind the great advantages to social workers and others working in family law if the adoption legislation in the Children Bill could be consolidated. In recent years the Joint Committee of both Houses has done so much consolidation, which any Government would want to do. Unfortunately, the pressure on Parliamentary draftsmen is such that I do not think anyone can predict when this highly desirable work can be done, but your Lordships may be sure that it will be accomplished at the earliest opportunity, because past consolidation has proved to be invaluable.
I come to the right reverend Prelate the Bishop of Leicester who, I think, asked why there was not a separate Scottish Bill. I asked, too, when I first read the Bill. Then I began to realise that much of the Bill applies to the whole of Great Britain and that there are only little pockets of resistance. The answer is that the Departmental Committee dealt with the law of adoption in Great Britain as a whole and identified few, if any, differences in the requirements for change so far as Scotland is concerned. The law of adoption has been one Act applying across the border since 1950. To depart from the practice of over 25 years would have involved additional Parliamentary time and application of effort, and I believe could have delayed this Bill and a similar one applying to Scotland. There did not seem to be any justification for so doing.
The right reverend Prelate also raised the question of dispensing with consent, referring to Clause 11(2)(b). The grounds of withholding agreement unreason-ably represent no change whatsoever from provisions in the existing law. It is precisely the same as it has been for some considerable time. The noble Lord, Lord Redesdale, raised the point of the interests of the children being paramount. I hope he feels that I have dealt with this point reasonably adequately, even if he may not agree with the reasons which I gave. He went on to speak about the importance of having special courts and special training for magistrates and of 98 the need for them to have experience in this kind of work. Again, I think that perhaps people do not realise how experienced the lay magistracy is in this field. If I may say so with the greatest respect, it is far more competent and far more experienced than many members of the legal profession. They are dealing with these matters every day of the week, year in and year out, and one must remember that the vast majority of matrimonial cases are dealt with in the magistrates' courts. About 99.9 per cent. of crime is dealt with in the magistrates' courts—though I cannot give a percentage so far as the matrimonial cases, the guardianship of minors and affiliation proceedings are concerned certainly the vast majority are dealt with in the magistrates' courts—and I should have thought that there exists there today a great deal of expertise. In recent years —the noble and learned Lord who sits upon the Woolsack is no exception—the screw has been put on lay magistrates to have continuous (and I say "continuous" with some feeling) in-service and further training and, from my point of view, I should be reasonably happy with the standard of skill and competence that one would find among magistrates.
My Lords, the noble Lord, Lord Redesdale, also raised the question of Clause 2. I do not want to go over that again but he raised the question of time limits and perhaps I may say that the noble Lord referred to the periods in the Bill—and in particular the five year period—as being much too long. Others think they are much too short. I would accept the fact that the Houghton Committee recommended five years and that we are suggesting that it should be three. It is something of a dilemma, but I wanted to say that the Department has taken a great deal of advice in this field and three years is not arbitrary. It is the result of a great deal of discussion with people whose views have been sought and whose experience is appreciated. Having said that, however, the Government have attempted to solve the problem by taking a power to change the periods by affirmative Order in both Houses if experience shows that a change is needed. This can be done fairly quickly. It may well be that three years is wrong and that we shall have to come round to five years eventually.
99 The noble Baroness, Lady Fisher of Rednal, also raised the question of time limits and, again, I do not want to go over the same ground but I want to give her an assurance that a good deal of thought has gone into this. The noble Baroness also raised one or two other matters. In relation to the welfare clauses, Clauses 2 and 49, which place on courts and local authorities a duty to consider the welfare of the child. I should like to add a sentence that I did not add on a previous occasion and to say that there is a responsibility upon the courts not only to consider the welfare of the child but to consider the welfare and the needs of the child throughout its child-hood. I think we sometimes forget that and, if we bear that in mind, we shall probably find that the provision is rightly worded, though the noble and learned Lord, Lord Hailsham of Saint Marvlebone, may have another view about that. The noble Baroness also raised the question of payment to adopters. I think that we ought to see this as an exceptional matter: as I understand it, it can only be done with the permission of the Secretary of State. It cannot be done simply because somebody wants to do it. There must be authority for it. As I see the situation, there must be a special need. It may be that there is a measure of, perhaps, physical handicap in relation to which certain provisions of clothing are necessary. For that kind of purpose, there could well be a payment to an adopter and, in the circumstances, it may seem to be a very reasonable matter.
My Lords, I think that I have answered most of the matters raised by the noble Baroness, Lady Macleod. At least, I hope that I have, and if I have not then I hope she will say so. I think that the only comment I want to make is upon a point which I may have misheard: I thought that she said that at the present time single people could not adopt. My recollection is—and I shall check this and, if I am wrong I shall write to the noble Baroness—that for some considerable time now single people have been able to adopt.
§ Baroness MACLEOD of BORVE
My Lords, the noble Lord is quite right : I certainly did say that because it was my impression that it was the case. After 22 years of working in this field, I have never had a single person wanting to adopt, so 100 perhaps I presumed that they were not allowed to do so. Perhaps it is just that it is very rare, but I still welcome the provision.
§ Lord WELLS-PESTELL
My Lords, I think I am right in saying that, but if I am not I will let the noble Baroness know. However, I seem to remember having dealt with some cases myself some years ago, though I think that there has to be a particular age difference between the child and the person adopting. I cannot remember whether it is 15 or 20 years, but that used to be the case. I thought that the noble Baroness would not mind my saying this. The noble Lord, Lord Hylton, raised the question of religion and this is, of course, a very difficult matter. I think —and, clearly, the Government do too— that the Bill is right in this matter and all I would say is this: if one is to put an Act on the Statute Book it should be an Act that is enforceable. This is one of the problems which stem from this kind of thing. The present provision is unenforceable and may, I feel, sometimes stand in the way of a child finding an adoptive home. There is the further point that, if the adoptive parents decide to change their religion after the adoption order has been made, there is nothing to prevent them doing so, and, as I see it, nothing can be done to ensure that they comply with the mother's wishes. If mothers have strong feelings about this, they will usually be able to go to an adoption agency of their religious affiliation. The Houghton Committee pointed out in its Report that it would be a matter of a good agency practice—and I think this is the important point—to find out what are the mother's wishes in the matter and to respect them if at all possible. I should have thought that this would be good government on the part of the agency and would imagine that mothers who had a particular wish would see that they would go to an agency where their wish could be met. Provisions will probably be made for this in the agencies' regulations made under the Bill, because they will have to obtain the approval of the local authority, as the noble Lord will know. The Government would not, however, wish to perpetuate legislation which made it difficult for a child to find a new family. I do not think that the problem is as great as it might appear to be in theory.
101 The noble Lord, Lord Hylton, raised the question of Dr. Kellmer Pringle. I could say on behalf of the Department a great deal on this matter but I will not do so, except to say that my right honourable friend the Secretary of State has taken note of the view that separate representation should be mandatory. As the noble and learned Lord the Lord Chancellor has explained, Clause 50 gives courts discretion, where it appears to the court that there is or may be a conflict of interest between the parents and the child, to order that the parents shall not represent the child in care and related proceedings. This is a definite instruction. Where an order has been made that the parents shall not represent their child in such proceedings, it is mandatory for the court to consider whether the child should be separately represented by a guardian ad litem or be granted legal aid, so that he can be represented by a solicitor, but a decision whether to appoint a guardian ad litem or grant legal aid is left to the court. This may not go so far as the noble Lord wants it to go, but I hope that on reflection he will feel that it is quite reasonable.
I welcome the contribution of the noble Baroness, Lady Young, although I thought she was a little pessimistic to begin with—but I think it quite right that Members of your Lordships' House should point out possible pitfalls. We should use the Committee stage to make this a really adequate and worthwhile Bill, and send it to another place after we have done a good deal of spade work. The noble Baroness asked me about Finer. The Government are still considering the recommendations of the Finer Committee, and I know this to be absolutely true. I am not trying to put the noble Baroness off. As your Lordships will know, many of the recommendations call for more local authority services in the way of day care and supporting services. Both the noble Baroness and I know something about the local authority social services, and I think that perhaps we do need to look a bit longer at Finer to see what is really required of local authority social services before we attempt to rush in and legislate for this.
Another matter raised by the noble Baroness was that of cost. It has not 102 been suggested that the cost of implementing the provisions will be met from savings, although some are expected to accrue. It is envisaged that the cost of adoption services will rise gradually as they develop and that it will be borne by local authorities, most of which already provide the elements of the service, and by the voluntary services. So one has to bear in mind that a good deal of this is already in being—the machinery is there, the personnel are there, and it should not prove to be a very costly thing.
As the noble and learned Lord on the Woolsack said in his opening remarks, and as I said some time ago, the Bill will take some time to implement once it gets on the Statute Book, and sufficient time should be given to see that it is directed along the right lines. I believe I dealt with the question of consolidation, but if I did not may I say this. We have in mind that it would be a considerable advantage to social workers and others working in family law if the legislation could be consolidated but, as I think I have pointed out, this is very time-consuming.
I thank your Lordships for the welcome that you have given this Bill and, if you do not mind my saying so, for the constructive criticism that you have made. We shall of course consider very carefully what has been said. There will, of course, be a Committee stage, and we hope that if there are any serious reservations in any of your Lordships' minds, or if it is felt that the Bill can in some way be improved, the opportunity of the Committee stage will be used. I am sure that your Lordships will share our sense of great responsibility in attempting to formalise in statutory form the out-come of so much discussion on what is a deeply-felt consideration, namely, the welfare of children. This House is never better than when it is undertaking a task of this kind. I think that somehow we are singularly equipped to do this in a particular way, and I thank your Lord-ships for your contributions, and com-mend the Bill to the House.
On Question, Bill read 2a, and com-mitted to a Committee of the Whole House.