§ 2.58 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I beg to move that this Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ Clause 11 [Parental agreement]:
§ Lord SIMON of GLAISDALE moved Amendment No. 10A:
Page 7, line 39, at end insert—
(6) Subject to subsection (3), if the parent or guardian has once agreed to the making of an adoption order under subsection (1)(b), he shall be deemed, for the purpose: of subsection (2)(b), to be withholding his agreement unreasonably if he subsequently withdraws his agreement, unless the court is satisfied that such withdrawal is likely to safeguard and promote the welfare of the child.
§ The noble and learned Lord said: My Lords, I put down this Amendment at the same time as the noble and learned Lord, Lord Wigoder, put down his Amendment to Clause 2 of the Bill. I did so really as a fall-back position in case his Amendment were not carried. I am very ready to concede that the noble and learned Lord's Amendment having been carried last Thursday—to the great improvement of the Bill—this Amendment is not nearly so necessary as it would have been. Nevertheless, as this present Amendment goes rather further in dealing with a certain situation, I redrafted it and left it on the Marshalled List for your Lordships to consider whether it would still be desirable, notwithstanding the fact that Clause 2 had been amended.
§ My Lords, I mentioned that the Amendment deals with a certain situation, and that is one which in my experience—and this clause deals with forensic processes—has given rise to very considerable difficulties. In mentioning my own experience, I must at the outset, in view of what has been said by noble and learned Lords, disclaim any right to speak with authority on these matters. It is true that I have naturally had considerable responsibility to discharge in relation to children, but I cannot claim 1091 to have any particular expertise, it being only marginal in so far as adoption and care is concerned
§ Even within the purely legal sphere, a county court judge of the experience of Judge Stockdale, who took over the Houghton Committee after the death of the first chairman, has immensely greater experience than I have, and when I venture to differ from the Houghton Report it is with considerable diffidence. But as I say, this clause is concerned with forensic processes. The particular problem with which your Lordships are concerned on this Amendment is the case where a mother—generally a mother and usually an unmarried one—gives her agreement to adoption but subsequently withdraws it.
§ Your Lordships are well aware that Clause 11 is the old, although also the present, procedure, and that Clause 13 institutes very advantageously a new procedure. I do not ask your Lordships to review in the light of Clause 13 the matter that I wish to urge on you, but so far as Clause 11 is concerned, it re-enacts the existing law. So far as I have been able to judge—and in this matter it is really the representatives of local authorities, the spokesmen for the adoption societies and, indeed, those who have had personal experience of the problems of adoption, who can speak with particular authority —on the basis of my experience, the situation where a parent or guardian, and particularly an unmarried mother, gives her consent and then seeks to withdraw it, creates a position of great difficulty, especially for the adoptive parents, who may have had the child in their custody for some time before the withdrawal of adoption. It is a problem with which the noble and learned Lord, Lord Hailsham of Saint Marylebone, dealt in giving a judgment in your Lordships' House in the case called Re. W. This again was considered in rather exceptional circumstances, and there is also the case to which the noble Lord, Lord Wigoder, referred last Thursday.
§ The difficulty is that the unmarried mother is in a position of great trauma, having been abandoned to bear a child in those circumstances. Until the implementation of the recommendations of the Finer Report—which, I think, we should all like to see enacted as early as possible 1092 —I have no doubt a woman in that position will continue to have advice that it is in her interest in many circumstances that she should allow the child to be adopted and endeavour to remake her life as soon and as much as possible. That advice is given from the highest motives, but at the moment there is a great danger that a mother going through the traumatic experience I have described will come to regret the consent she has given and seek to withdraw it. Clause 11(3) is a very great improvement on the present position. It states that an agreement is ineffective for the purpose of subsection (l)(b)(i) if given by the mother less than six weeks after the child's birth. That seems wholly right, but once one has given that safeguard and if, nevertheless, consent has been given after that time and is subsequently withdrawn, the welfare of the adoptive parents and, indeed, of the child—though it is not in a position to consider its own welfare—is liable to be prejudiced. The proposal in this Amendment is that in those circumstances the withdrawal shall not be valid for the purpose of the provisions of Clause 11(2)(d)—withholding agreement unreasonably—unless it is shown that the withholding of agreement is in the interest of the child.
§ That demands consideration of a phrase we now use almost automatically; namely, that the welfare of the child shall be the first and paramount consideration. Why do we say this? I ventured to give two reasons when we discussed the matter in Committee. One is the rather arid sociological reason that the continuity of society justifies the preference of the welfare of a child to the welfare of a parent or, indeed, of any other adult. The second reason is the very vulnerability of a child, the fact that a child is liable to be hurt more than an adult in situations where their interests conflict. In many cases the interests will not conflict. In most cases it is very much in the interest of the child to be brought up by a parent—or preferably both parents—and that identity of interest will be strengthened if the recommendations of the Finer Committee are implemented.
§ The third reason I find difficult to express without seeming harsh. It is that in the circumstances I have envisaged, where the interest of the child conflicts 1093 with the interest of an adult, it means that the adult has failed in the responsibility that society has put on him or her to safeguard and promote the welfare of the child in the interest of the continuity of society. I say it sounds harsh, because almost always the circumstances are the break-up of a marriage where the spouses have obviously been cheated of the felicity that they were looking for in each other's companionship, or where an unmarried mother brings a child into the world where obviously her love has been betrayed.
§ Nevertheless, those three reasons seem to me to be valid reasons why one should, in certain circumstances of conflict, prefer the interests of the child. In my respectful submission to your Lordships, one of those circumstances is where a parent or guardian has once, after the lapse of six weeks, given agreement to the adoption and then seeks to withdraw it. In many cases, that withdrawal will be in the interests of the child, but, if it is not in the interests of the child, your Lordships may well think that it is the interests of the child which should prevail. It is for that reason that I have pursued this Amendment. It goes a little further than the Amendment of the noble Lord, Lord Wigoder, to Clause 2, though it runs parallel to that Amendment in language. It goes further than that, in that the onus of proof is reversed. It is for the person seeking to withdraw agreement to show that that withdrawal is in the interests of the child.
§ Finally, may I make this plea to the noble and learned Lord on the Woolsack —and I hope that what I say will not cause offence, in view of our old friendship, personal, professional, and Parliamentary. I thought that when the noble and learned Lord replied to the debate on Thursday on Clause 2, he seemed, if I may say so, to be under the impression that this Bill had been prepared in the office of the Parliamentary draftsman to the Medes and the Persians. If the noble and learned Lord's brief in reply to this debate is drawn at all on those lines, I beg him to put it aside and to reply from the true warmth of his own heart and the true receptiveness of his own mind. We are, after all, concerned here with the welfare of a child. I beg to move.
§ The LORD CHANCELLOR
My Lords, I should like to make a brief inter- 1094 vention at this stage—in view of the words which have fallen from the noble and learned Lord, Lord Simon of Glaisdale— in order to say that he may be reassured that my noble friend Lord Wells-Pestell will be replying.
§ 3.14 p.m.
§ Lord WELLS-PESTELL
My Lords, I do not claim to belong to either the Medes or the Persians, but the noble and learned Lord's Amendment has caused us to consider very carefully, over the greater part of the past weekend, what he proposes. We recognise the approach which the noble and learned Lord brings to this matter, and I hope that at the end of what I have to say he may feel able to come to the conclusion that perhaps, after all, this Amendment, for reasons I hope to show, is not necessary. As I understand the situation, this Amendment would insert a new subsection to provide that, once a parent has attached his agreement to an application for an adoption order, he shall be deemed to be withholding his agreement unreasonably if, at the court hearing of the application, he wishes to withdraw his agreement and cannot satisfy the court that such withdrawal is likely to safeguard and promote the welfare of the child.
This Amendment is intended to deal with the situation which causes—and one recognises this; social workers recognise it particularly—a good deal of distress not only to would-be adopters and natural parents but, if I may say so from some personal experience, also to the judges and magistrates who are confronted by a parent (usually the mother) who has changed her mind about having her child adopted and is no longer willing to agree to an adoption order being made. At the time the case is heard, the applicants for the adoption order will have had the child in their care for at least three months and are almost certain that the child will become legally theirs. Fortunately, in about 98 cases out of a 100, there is no difficulty and the adoption order is made. But as the noble and learned Lord has pointed out, there are occasions, although not numerous, where a parent does change her mind at the last minute. As the noble and learned Lord has stressed, and as I have said, there cases are exceedingly distressing, and this was one of the problems to which 1095 the Houghton Committee attempted to find a solution—and I use the word "attempted" advisedly.
Basically, in a matter having such final and irrevocable consequences, the parent must be given the opportunity to consider and reconsider her decision so long as she continues to hold all parental rights. The Amendment fails to provide this and the onus is put on the mother to satisfy the court that she has more to offer the child than the applicants. It is this that exercises our minds. It must be remembered that once a mother has signified her agreement and the application is made to the court. Section 34 of the Adoption Act 1958 (as rewritten in Clause 30 of the Bill) prevents the parent or guardian who has given consent from withdrawing the child from the custody of the applicant; the application must therefore proceed to a hearing even if the parent's circumstances have drastically changed. She may, for example, have married the child's father or found some means of enabling her to support the child herself. As the law stands at present, the court would have to satisfy itself that the parent's agreement should be dispensed with on one of the statutory grounds. The Amendment would however, in this one instance, place the burden of proof on the parent who wished to withdraw agreement. The law already gives some protection to those who apply to adopt on the basis of agreement given by the parent, in that they are able to secure a hearing on the merits.
It would not be desirable to go further and provide that the balance on the merits is tilted against the parents in such cases. It is not of course possible to foresee exactly what the consequences of such a change in the law might be, but it is likely that some parents, when the implications are explained to them, might decide to withhold their formal agreement until the court hearing. I want to emphasise that particular possibility. This would not only enable them to withdraw their child from the applicants at any time before the hearing, but would also ensure that they retained their rights to agree or disagree until the order was made. On balance, therefore, I suggest that the would-be adopters, and, above all, the child, would stand to lose more than they would gain by the Amendment.
1096 The Government recognise the concern which lies behind this Amendment, and believe that other recommendations made by the Houghton Committee and given effect in the Bill will reduce the number of such painful conflicts. One recognises that as things stand, this situation will arise occasionally. First, the alternative procedure, for enabling a child to be freed for adoption before it is adopted, will enable parents to give early final agreement to adoption and will provide the opportunity for any uncertainty about agreement to be sorted out before the would-be adopters become involved in court proceedings.
Secondly—and I should like to emphasise this point to the noble and learned Lord—the parents' initial agreement to adoption will have to be witnessed by an adoption officer, who will have a duty to ensure that the parents are agreeing freely after having considered ail the implications of and alternatives to adoption. Where a parent has chosen to use the procedure which involves agreement being given to an adoption by specific adopters which is the procedure to which this Amendment would apply—and this is the situation which I think the noble and learned Lord has in mind—the adoption officer's function should help to bring out uncertainties at a much earlier stage and reduce the number of such cases which are likely to reach the courts. Finally, the improvements which the Bill will help to bring about in agency practice, and the access which the new service will have to other social services, should help to ensure that parents who decide to have their children adopted will do so with more assurance and confidence that that is the best solution for the child.
I would, with great respect, say to the noble and learned Lord that there are, as he recognises, two aspects to this matter. One is where the child is free and the parent or guardian who has freed the child does not know ultimately where the child is going. I know that the noble and learned Lord has concentrated on the second aspect where it is a specific adoption, and, as I say, one recognises the difficulties which he set out so clearly. But we feel—and I ask him to accept this—that it is ultimately in the children's interest that this situation should not 1097 arise, in case it becomes the practice— more so than it is at the moment—for parents in such circumstances not to give agreement in the early stages, for fear that they will find themselves in this position. It is for that and other reasons which I have given that I hope I have satisfied the noble and learned Lord.
§ 3.24 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I do not want to say very much, but I do not want it to be thought that we on this side of the House either have no opinions about a matter of this importance, or that we are indifferent to which of the two opinions is held. This is, of course, a very difficult question and, as the noble Lord, Lord Wells-Pestell, has said, those of us who have seen in practice the kind of mental agony to which the situation visualised gives rise would not wish to dogmatise about it, nor to speak lightly of it. There is no Member of this House, and probably very few people outside it, to whose professional opinion or to whose personal opinion in matters of this kind I would more willingly defer than that of my noble and learned—and, if he will allow me to say so—friend Lord Simon of Glaisdale, whose experience is far greater than mine even though he modestly disclaimed any authority at the beginning of his speech.
I make two comments on the Amendment as it stands, which I think brings me down rather hesitantly on the side of the Government, though belonging neither to the Medes nor the Persians but rather—so long as we occupy this side of the House—to the ranks of Tuscany. But whenever I see the word "deemed" in a Statute—and there is the word in this Amendment—I make a mental note, and the mental note is necessary because I think it is one of the few things which is always true. Where the word "deemed" appears in a Statute, a court is always being asked to find as true something which it would not otherwise find as true and which therefore may not be true. I do not think that there is any exception to that rule because that is what the word "deemed" means. It would not be necessary if the court was going to find it as true without the deeming provision.
Translated into this Amendment, that means that a woman's, or a man's—but 1098 it is usually, as has been said, the mother's—consent is deemed to be unreasonably withheld when it has not been unreasonably withheld, or when the court would not find that it had been unreasonably withheld. Of course there is the escape provision at the end, if the woman can satisfy the court that it is in the interests of the child that the consent should be withheld, but the burden of proof is on her. I personally tend to think that the court should be free to come to its own decision after having considered all the facts without a presumption either way. I am saying this in the knowledge that my noble and learned friend Lord Simon is, of course, right that in many of these cases the woman's consent is being unreasonably withheld if she goes back on her original agreement. She is sometimes being "got at" by religious bodies and, much as I respect religious bodies—and I say this in the presence of the right reverend Prelate —they sometimes operate rather dogmatically and not always in the interests of the children, where children are concerned.
It is true that the woman's consent is very often unreasonably withheld in such cases—and sometimes she has changed her mind more than once—and one is more willing to accept that the change of mind has been more unreasonable than if it had been only one change of mind. But it is not always unreasonably withheld. The noble Lord, Lord Wells-Pestell, visualised a case where a woman's own circumstances might have radically changed for the better between the time when she originally gave her consent and the time when she wanted to change her mind. But I think one has to remember, even if one takes into account the six weeks' provision, that a woman who has borne an illegitimate child—and that is what we are really talking about in the majority of cases, though not in every case—or a widow woman who bears a posthumous child, very often bears it in circumstances of great grief and confusion, and with real agony of mind she may. in the early stages, think it is in the interest of the child that she may never see it again. She may not always be right. I should like to leave it to the court to make up its mind—having seen the woman and having seen the adopters, without the presumption that she is 1099 being unreasonable—whether or not she is being unreasonable. I would not put the burden of proof on her. I know that this is a very difficult matter and, as I said, I do not dogmatise, but I think it would be wrong of me not to express the opinion even if I do not hold it with Medes' and Persians' obstinacy.
§ Lord SIMON of GLAISDALE
My Lords, may I have leave to address your Lordships shortly again? I am naturally in your Lordships' hands, not merely formally, as to how we proceed with this Amendment. I personally attach very great weight to the view that has been expressed by the noble and learned Lord, Lord Hailsham of Saint Marylebone, not only because I do so habitually in all matters but because he gave the great seminal development in the law in his speech in this House silting judicially in the case of Re W. I also felt the great force in the observations of the noble Lord, Lord WellsPestell.
I conceded at the outset of introducing this Amendment that it is far less important now in view of the Amendment that your Lordships made to Clause 2 and I respectfully agree also with what the noble Lord said, that the Bill will undoubtedly greatly reduce the painful situations to which this Amendment was particularly directed. Also, if I may say so, there seems to me to be very great force in his point that if we wrote this Amendment into the Bill it might have the unfortunate result that the social workers would seek to persuade the parent or guardian to withhold the consent until the court proceedings were actually on—and we are dealing with a minority of cases. It seems to me that if that were done, it would be to the disadvantage of the child and to the prejudice of parents, couples or people who wanted to adopt a child and to fulfil in that way a duty to society. My own feeling is that in view of the perceptive observations that have been made on this Amendment I ought to withdraw it, and subject to your Lordships' consent, I would wish to do so.
§ Lord WELLS-PESTELL
My Lords, subject to your Lordships' permission to allow me to speak again, may I thank the noble and learned Lord, Lord Simon, 1100 for being prepared to withdraw his Amendment. I think that the House will feel that we have had a very clear exposition of the Amendment from the noble and learned Lord and that we are very much indebted to the noble and learned Lord, Lord Hailsham of Saint Marylebone, for his intervention which has been helpful to all of us. I am most grateful.
§ Amendment, by leave, withdrawn.
§ 3.32 p.m.
§ Lord WELLS-PESTELL moved Amendment No. 11:
§ Leave out Clause 12 and insert the following new clause:
§ Religious upbringing of child
. An adoption agency shall in placing a child for adoption have regard (so far as practicable) to any wishes to the child's parents and guardians as to the religious upbringing of the child.
§ The noble Lord said: My Lords, I should like to move this Amendment on behalf of my noble and learned friend the Lord Chancellor, and with your Lordships' permission to speak also to Amendment No. 12 in the names of the noble Lord, Lord Hylton, and the noble Baroness, Lady Masham of Ilton, and to Amendment No. 17 in the name of the noble Lord, Lord Drumalbyn.
§ If I say that we have been over this ground before, it is not an over-statement of the situation. We have aired our views on all sides on this matter; and it is because it was difficult to find some measure of agreement in the views expressed that the Government decided to put down this Amendment. We on this side had a great deal of sympathy with the Amendment moved by the noble Lord, Lord Drumalbyn, and felt that the best way of dealing with this was by way of regulations. As your Lordships know, there were very strong feelings, and subsequently a vote, that it should be written into the Bill. I know that the noble Lord, Lord Hylton, himself—and he will not mind my saying this—was a little unhappy with the wording of his own Amendment which was successful. All that we are concerned to do on whichever side of the House we sit is to find the right wording to meet this rather difficult situation. The Government therefore have put down this Amendment in the hope, and if I may say so, in the belief, that it will be 1101 acceptable to those noble Lords who had put down previous Amendments.
§ The effect of Amendment No. 11 would be to remove the provision in Clause 12 which re-states the present law that a parent's consent to the making of an adoption order may be given subject to conditions in respect of the religious persuasion in which she wants the child brought up and instead—and we think this is preferable—to place a duty on the adoption agency in placing a child for adoption to have regard, so far as is practicable, to any wishes the child's parents or guardians may have as to the religious upbringing of the child. The duty would apply to a child freed for adoption at the stage in which placement was being considered.
§ As the House will be aware, the Government believe that it would be right to implement the Houghton Committee recommendation that it should cease to be possible to give consent to adoption subject to a condition as to the religious persuasion in which the child is to be brought up. The Government accepted this recommendation after wide consultation, for the reasons explained when we discussed this matter in Committee: first, such a condition is unenforceable; and, second—this is of considerable importance—it may prevent some children from being placed for adoption. The Government also shared the Houghton Committee view that agencies should continue so far as possible to have regard to the wishes of the parents in this respect when placing a child for adoption and envisaged that provision for this should be embodied in the relevant regulations, as is suggested in the Amendment of the noble Lord, Lord Drumalbyn, on similar lines to that in the present Adoption Agencies Regulations 1959.
§ However, the Government have care fully considered all that was said on this subject in Committee on February 4th, and accept the strongly-held view of the noble Lord, Lord Hylton, and others who spoke on that occasion, of the importance, if I may be permitted to cite Lord Hylton, of "writing something into the Bill so that people know where they are". The clause now proposed does just that. It places a clear duty, not dependent on any subordinate legislation, on the adoption agencies to have regard, so far as practicable, to any wishes of the parents 1102 as to the religious upbringing of the child. We envisage that, as at present, the relevant regulations would ensure that the attention of the parents or guardians was drawn in the Explanatory Memorandum to the adoption agency's duty in this respect. I am assured that there would be no difficulty about providing in these regulations, inter alia, information about an approved denominational adoption society to be made available to the parents.
§ It has been suggested that regulations should provide that, where suitable adopters of the desired persuasion could not be found within a reasonable time, the agency should seek adopters "having understanding and sympathy for" that persuasion. We think there would be considerable practical difficulties for agencies in trying to comply with such a requirement. While we can hope that, as at present, parents' wishes in this respect will normally be met by putting them in touch with the appropriate denominational adoption society, there are bound to be cases which reach a stage at which the agency, after making all reasonable efforts, has failed to find adoptive parents who will undertake to bring up the child in the desired religious faith. In our view, at that stage an agency should be free to make a placement in the best interests of the child. This is, I think, the essential difference between the restrictive effect of the condition in the present Clause 12 and the effect of the provision we now propose. The latter would allow the principles of Clause 2 of the Bill to be applied as to the welfare of the child in a situation in which it may not be practicable to comply with the parents' wishes, by placing the child with adoptive parents of the desired religious faith. This is likely to be important where the religious persuasion is in a small minority. I think every Member of your Lordships' House is aware that there are such religious persuasions.
§ I am encouraged by the terms of Amendment No. 12 put down by the noble Lord, Lord Hylton, and the noble Baroness, Lady Masham of Ilton, and also by Amendment No. 17 which no doubt will be moved by the noble Lord, Lord Drumalbyn. But I would ask all noble Lords whose names are attached to Amendments to consider what I have said on this occasion and what has been 1103 said on previous occasions, in the hope that the Amendment down in the name of the Government will be acceptable. I beg to move.
§ Lord HYLTON
My Lords, I welcome this Amendment I should like to thank the noble Lord, Lord Wells-Pestell, for his courtesy not only in writing to me but also in telephoning me well in advance about this whole matter. The Government Amendment is not only more elegant than the one I moved in Committee but also more effective. The point of enforceability has been mentioned, and there is the added advantage that this Amendment takes the whole question back to an earlier stage in the adoption process. For these reasons I shall not be moving my Amendment No. 12. There is only one request I would make to the noble Lord, Lord Wells-Pestell. When the regulations come to be made under the Bill, I hope that he will spell out the matter very clearly indeed, particularly for the benefit of the social workers who will be dealing with cases of this kind. In the present nonconsolidated state of the law, I believe it is the regulations which are turned to first by the social workers. It is therefore of the greatest importance that they should be clearly stated. From what the noble Lord said, I think I am right in assuming that he will be able to incorporate the second point of my Amendment No. 12 in the regulations. I very much hope that that will be so.
§ 3.45 p.m.
§ Baroness MASHAM of ILTON
My Lords, I would first thank the noble and learned Lord the Lord Chancellor for putting down Amendment No. 11 in his name. Out of the three Amendments dealing with the religious upbringing of children, I prefer Amendment No. 11, because it is simplest and I always prefer what is simplest because it is easiest to understand. I would say a few words about recent events, in case any noble Lord or Lady is to speak against this Amendment. First, I had strong representations from a father, who happens to be Jewish, because he was disappointed that fathers had not been included. They now are included under this Amendment, and I shall be pleased to tell him this. Also, I had an urgent telephone call from 1104 a Roman Catholic priest in the Midlands who spoke for an adoption society in that area. He felt that Canon Harvey had probably misled the Houghton Committee on views which were his personal views. He has made it clear in a letter, which has been circulated to several of us, that he was speaking of his own personal views. I read from the beginning of a cutting from a paper, which says:The Roman Catholic Churches in England and Wales have asked Mrs. Castle, Secretary for Health and Social Security, to ensure that a mother may lay down conditions about the religious upbringing of her child when it is offered for adoption …".Last Wednesday, I met a lady from York who runs an adoption society which is non-denominational. She spoke strongly of the need for these Amendments. She was surprised that the provision had been taken out of the Bill altogether. She said that such provisions are helpful and give guidelines. So I would say, as the noble Lord, Lord Hylton, has said, that I hope the regulation will be spelt out clearly. I support Clause 11.
§ Lord DRUMALBYN
My Lords, as the noble Lord has indicated that he would like to take my Amendment along with these Amendments, may I say that I am perfectly willing that this should be done. I would wish to ask only two questions before I make up my mind finally on this matter. The first question is to ask what is to happen if an adoption society manifestly and persistently fails to carry out this provision, which is, after all, mandatory, although it is limited to what is practicable in the circumstances? My second question is to ask whether it is intended to make regulations under this Amendment, or whether the Amendment stands on its own and the Government see no necessity to make any regulations. I am generally well disposed to the Amendment that the noble Lord is moving, although from what I have said he will understand that I was at first sight even better disposed to the idea of my noble friend that there should be a duty rather than a mandatory obligation.
§ Lord SOMERS
My Lords, I am not in the least speaking against this Amendment, because I have great sympathy with it, but one thought has occurred to me. When a couple adopt a child they 1105 desire above everything else that that child shall be, to all intents and purposes, their own child and brought up as their child. If there is to be a difference of religious persuasion—I do not say that it will inevitably be the case, but it may prove to be the case—that difference will make a. barrier between the child and the adopting parents for the rest of its life, which is a most undesirable situation. If the child is young, it is not likely to have any great convictions about one religious persuasion or another. But it is essential that the parents should not have to run the risk of there being any barrier between themselves and the child whom they are adopting. In view of the Amendment which has been moved, I think that it is most desirable to try to find adopters who are of the same religious persuasion. I feel that this is a point which must be raised.
§ Lord GORE-BOOTH
My Lords, the Minister has been kind enough to keep in touch with me. As an adherent to a minority religion, may I thank him for the trouble and concern he has taken over this master. As the noble Lord has said, he has gone a good way towards meeting the very strong feelings of people of different religious persuasions. At the same time, he has avoided a situation in which clearly there was a case for adoption but, under previous dispensations, adoption could not take place. For that reason, I am happy to support Amendment No. 11.
§ Baroness YOUNG
My Lords, may I intervene very briefly in the debate to take this opportunity of thanking the Government for bringing forward this Amendment. We had a very long debate on this subject at Committee stage. Very strong feeling was expressed on all sides then that, as originally drafted, the Bill was not satisfactory with regard to the religious upbringing of a child. I personally am very happy to accept this Amendment of the Government, which I think meets the very real fears of people that those parents who wish to express a view about the religious upbringing of their child may do so. At the same time, it gets over the very real difficulty that, after reasonable steps have been taken to try to find suitable adopters, the child may be adopted by somebody who is not of the same religious per- 1106 suasion. In this respect, I think that it meets those two difficulties, and for that reason I am very glad to welcome it.
I was also very glad to hear what the noble Lord, Lord Wells-Pestell, said concerning advice about denominational adoption societies being given to prospective adopters. I think that this is very important. There will be very many parts of the country where a denominational adoption society will not be in existence and where it will be necessary to go to another part of the country to find out about this. I think that the mechanics of this aspect are very important so that the wishes of the natural mother may be respected. However, we on this side of the House are glad to support this Amendment and we thank the Government for bringing it forward.
§ Lord WELLS-PESTELL
My Lords, with your Lordships' permission perhaps I may be allowed to reply to the specific questions which have been put to me. The noble Lord, Lord Drumalbyn, asked what would happen if an adoption society refused to carry out this provision. The short answer is that all adoption societies must have the approval of the Secretary of State. I imagine that if they do not Irve up to the standard which is required of them, the approval could be withdrawn. I think that this would be the way to deal with it.
The noble Lord also asked whether this matter will be included in regulations. I know that, so far as she is able to do so, it is the intention of the Secretary of State to spell out in regulations not only this matter but a large number of other matters so that adoption societies and local authorities will know what is required of them. I can see no reason why the "i"s should not be dotted and the "t"s should not be crossed.
The noble Lord, Lord Somers, asked what would be the position if a difference arose between the child and the adoptive parents. I tried to make it clear that the whole purpose of this Amendment is to ensure that adoption societies not only take into account the wishes of the parent or guardian so far as religious matters are concerned but also introduce to the appropriate denominational society guardians or parents of a particular religion. It may not always be possible so 1107 to place a child; the Amendment says, "so far as is practicable". I think that there are many Members of your Lordships' House who could testify to the fact that parents have taken a child and brought it up in a faith other than their own. It may well be that this sows the seeds of difficulties, but some of us know where it has, in fact, succeeded.
I am grateful to the noble Baroness, Lady Young, for her comments and observations. She is quite right when she says that this is an example of where the careful thinking—and, if I may say so, the prolonged thinking—of your Lordships' House has brought about a change. Before this Bill is finally dealt with, I shall be thanking her on a number of occasions for the points she has raised. Sometimes we shall take these points on board; we may even be able to give some of them to her. However, I do not know about that. Whatever the result we shall be grateful to her because, although she has given us a lot of work, it has been worth while.
§ On Question, Amendment agreed to.
§ Clause 13 [Freeing child for adoption]:
§ 3.57 p.m.
Baroness YOUNG moved Amendment No. 13:
Page 9, line 4, leave out subsection (7).
§ The noble Baroness said: My Lords, I have put down this Amendment, because the House will recall that we had a very long discussion on this particular point at Committee stage. It turned on what was then Clause 12 but what is now Clause 13. Clause 13 is concerned with this new principle of reliquishment for adoption. May I say right at the beginning that I support entirely this new idea, based as it is on the Houghton Committee's recommendations. I am sure that it is a principle which will be of great benefit not only to the natural mother but to the adoptive parents.
§ Clause 13 sets out how this will work. However, when we reach Clause 13(7) I am concerned about the obscurity of the wording, particularly in Clause 13(7)(c). I am not a lawyer, but it seems to me that in subsection (7)(c) we are involved in a circular argument. From my reading of the Marshalled List, I see that the noble and learned Lord the Lord 1108 Chancellor has put down an Amendment to redraft that subsection. I think that his Amendment explains much more clearly what it means. I am not trying in any sense to be difficult about this. If, however, I have understood the Amendment, which I think is infinitely clearer than the Bill as printed. I am still not very happy about the subsection, for the following reason. I have indicated that I support the relinquishment procedure, but it seems to me that the natural mother ought to be able to choose either procedure when she is seeking to have her baby adopted; namely, either to do it by the procedure which has always been accepted and which will continue to be accepted when this Bill becomes law, or alternatively by the new procedure of relinquishing her child to an adoption agency: the socalled freeing of the child for adoption.
§ It seems to me that what subsection (7) is saying is that pressure ought to be put upon the mother to have the relinquishment procedure rather than the other procedure. If I may suggest it, I think that this would be a mistake. It seems to me that if the natural mother wants to know if her child has been adopted by a particular family and is settled, which is what the other procedure means, she ought to be entitled to know. I realise that she is entitled to do so under the Bill, but I think it would be a pity if the implication of the Bill, when it comes to be carried out by social workers, is that it is much more desirable that she should relinquish her child under the Clause 13 procedure. In saying this, I am saying what the Houghton Committee recommended in their Report.
In chapter 172 of paragraph 8, which is entitled "Consent to Adoption", they say:
We have tried to devise a system which will provide flexibility and choice, protection for the mother against hasty, ill-considered decisions or pressure from other people, and protection for the child and adoptive parents from undue delay and uncertainty.
This is the relinquishment procedure. They then go on to give, in the final appendix to the Report, Appendix E, suggestions for an explanatory leaflet to be given to the mother, and they suggest at the end, on page 135:
The choice of procedure is yours. The agency will explain to you the advantages and
disadvantages of the two procedures, and suggest which is most appropriate in your case, taut it is for you to choose.
§ It is surely right that the natural mother, having had it all explained to her, should be able to choose what she should do about it, and I should like to have a reassurance from the Government that their new subsection as drafted gives this mother the right to choose.
§ My fears in this matter are based not only on the Report of the Houghton Committee, which I think suggests that either alternative ought to be available to the mother. My fears are shared by both the directors of social service and the British Association of Social Workers who have written to me on this point. Therefore, I hope I have said enough on this Amendment to indicate that we on this side of the House support the principle of relinquishment in Clause 13, but we believe that the two alternatives ought to be available for the mother so that she can decide, on the basis of advice that she gets, what is best for her in her circumstances. That seems to me only right and that is, fundamentally, the reason why I have tabled this Amendment. If subsection (7) were left out, I do not believe that the relinquishment procedure would be in any way harmed; it would remain there and I think the choice for the mother would be clear. I beg to move.
§ Baroness WOOTTON of ABINGER
My Lords, I fully share the anxiety expressed by the noble Baroness, Lady Young, that the option should be clearly open to the mother, but for the life of me I cannot see what there is in subsection (7) which would prevent this. It does not seem to me that it closes the door in any way against the open options which are already available for the mother; either that the child should be placed for a specific adoption, or that it should be freed for adoption. I can see that subsection (7)(c) is perhaps going a little far, but the noble Baroness apparently wishes to exclude the whole of subsection (7). I think she is in a panic.
§ Lord WELLS-PESTELL
My Lords, in replying on behalf of my noble and learned friend, perhaps your Lordships will allow me to speak to Amendment No. 14 which immediately follows this one. So far as Amendment No. 13 is 1110 concerned—if your Lordships will allow me to refresh your memories—during the first Committee day on 4th February the noble Baroness, Lady Young, referred to the complexity of subsection (7). It was then numbered Clause 12(7) and my noble and learned friend the Lord Chancellor agreed to look at it. Having given the subsection further consideration, he has tabled Amendment No. 14 which the Government hope will commend itself to your Lordships.
To deal with Amendment No. 14, this Amendment replaces paragraph (c) of subsection (7) and makes it clear that an agency may place a child for adoption if, having discussed the Clause 13(1) procedure with the parents, it is satisfied that that procedure would not be appropriate, either because the parents or guardians simply do not want to use this procedure and will not therefore consent to the agency making an application; or secondly, because one of the parents or guardians whose agreement is required to adoption is not willing to agree to this kind of adoption order being made.
I think the answer to the noble Baroness, Lady Young, lies in what I am about to say. The purpose of the whole subsection remains the same; that is, to encourage where appropriate the use of the new procedure, because of its benefits to natural parents, prospective adopters and, above all, the child. The Houghton Committee suggested that parents wishing to have their child adopted should be given a choice between the new procedure, whereby their child would be freed for adoption, and the existing procedure, whereby they give their agreement to their child being adopted by specific adopters, whether known or unknown to them. Concern was expressed during consultation that if the two procedures were offered there would be a tendency to use the familiar procedure rather than the new one, and thus the benefits of the new procedure would remain untried. This subsection attempts to meet that criticism without placing undue pressure on parents, and I hope that the new paragraph (c) contained in this Amendment makes it clear, particularly to the noble Baroness, Lady Young.
§ Baroness YOUNG
My Lords, with the leave of the House, I should like to thank the noble Lord, Lord Wells-Pestell, for his 1111 explanation of this paragraph. I am bound to say I am surprised that the Government should take the view that adoption societies would be reluctant to use the new method because, certainly, my reading of the Houghton Report, and of all the evidence from people who have long been experienced in the field of adoption work, goes to show that it is a very harrowing experience for the mother to have to decide to give up her child for adoption, to sign the papers and then go back to court again. It is also a very harrowing experience for the adoptive parents, while they wait to see whether or not the child whom they have grown to love will be theirs. It is to overcome those difficulties that this new procedure has been introduced, which we on this side of the House generally welcome very much, and to say now that social workers might be reluctant to use it I find surprising, I should have thought, on the contrary, that they would have welcomed it and would have found it welcomed by the natural parent, and certainly by the adoptive parents.
However, in this Amendment I am not really concerned so much with the adoptive parent as with the natural parent, because, as the noble Lord, Lord Wells-Pestell, has said, the natural parent ought to have the right to choose which procedure he wants to use. As I thought, subsection (7) has been put in to make social workers aware of the alternatives and, if there is a difficulty, to persuade the natural mother to use the procedure of freeing for adoption. I think that is the worry about it, that it is putting pressure upon her.
Even after having heard the explanation I am not very happy about this matter, but I shall not press it this afternoon. I can say only that I hope very much that when guidance is given— perhaps in a circular—to adoption societies when this Bill is to become law, it will be made clear that it is the intention of the Government that the natural mother ought to be able to choose either procedure. This seems to be only fair and right and is certainly what the Houghton Committee recommended. That would reassure many professional workers who arc concerned about the way in which 1112 this clause will be interpreted. With those remarks, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.10 p.m.
§ Amendment moved—
Page 9, line 9, leave out paragraph (c) and insert—
(c) the agency has discussed the question of applying for an order under subsection (1) with each parent and guardian and—
§ On Question, Amendment agreed to.
§ The noble Lord said: My Lords, with your Lordships' permission, I beg to move Amendment No. 15 on behalf of my noble and learned friend the Lord Chancellor. This composite Amendment relates to Clause 12(7), as already amended on the Committee stage. I made reference to this in the discussion on the previous Amendment. The earlier Amendment was designed to require an adoption society proposing to place a child for adoption to consider the intentions of the father of the child regarding the possibility of his applying for custody in any case, although the child is illegitimate. This intention was not achieved for Scottish purposes, however, and the insertion of the Illegitimate Children (Scotland) Act 1930 puts this to right. I beg to move.
§ On Question, Amendment agreed to.
Page 9, line 26, leave out (" that section ") and insert (" either of those sections ").—(Lord Wells-Pestell.)
§ On Question, Amendment agreed to.1113
§ Clause 15 [Progress reports to former parent]:
The LORD CHANCELLOR moved Amendment No. 17A:
Page 10, line 40, leave out subsection (5).
§ The noble and learned Lord said: My Lords, it may be convenient to discuss Amendment No. 17A with Amendments Nos. 18A and 18B. Their purpose is to accept the policy underlying Amendment No. 19 to Clause 20 and, indeed, they go somewhat further to meet the purpose: of Amendment No. 19, than does that Amendment itself. At present the Bill follows, at Clause 15(5) and Clause 20(3), the provisions of Section 9(5) of the Adoption Act 1958 which enables rules to be made to provide for private hearings of adoption applications. Rules require the juvenile court and the county court to sit in camera, and enable the High Court to sit in chambers.
§ In Committee on 13th February, the noble Lord, Lord Sandys, moved an Amendment to require rules to provide for sittings in private without exception. My noble friend Lord Winterbottom dealt with this proposal, but he did not accept it on the ground that it would be necessary to preserve the present discretion given by rule to the High Court to sit in public, so as, for example, to enable a decision to be given in public for the purpose of establishing case law on adoption in terms to protect the anonymity of the parties to the proceedings. There was general agreement in Committee that it would be desirable to place on the face of the Bill the general rule that applications for adoption orders and for orders to free a child for adoption should be determined in private, all these being sensitive family private matters.
§ The noble Baroness, Lady Young, in particular, suggested that the Bill should say what it meant, which I found to be an impeccable approach to legislation. Subsequently, to pursue the matter, the noble Lord, Lord Winterbottom, wrote to the noble Baroness and suggest that it would not be easy to enact direct provision in. the Bill on the question of private hearings. But we have given further thought to it and hope that the package—if that is not too irreverent a way of describing it—which we have arrived at will meet the wishes of the House. As drafted, these Amendments 1114 relate only to courts in England and Wales. If they are accepted, separate provision will be required for Scotland.
§ My Lords, the Government's new clause, which your Lordships will see is in Amendment No. 18A, puts on the face of the Bill the substance of the provisions now found in rules for the High Court and for the county court. It provides that proceedings in the High Court under this Part may be disposed of in chambers. by leaving the matter to the discretion of the High Court judge who will normally be anxious to maintain the privacy of the occasion and of all that goes on there. I anticipate that it would be only on occasions, when it was necessary and important to proclaim some statement of the law which would be of value in sub-sequent proceedings, that the ordinary practice of privacy would be departed from.
§ For magistrates' courts, the proceedings are no longer to be disposed of by the juvenile court but will instead become domestic proceedings, as was recommended by the Houghton Committee. As your Lordships will know, domestic proceedings are not open to the general public, because of Section 57 of the Magistrates' Courts Act 1952, and subsection (3) of the new clause in Amendment No. 18A modifies the provision of the Magistrates' Courts Act so as to secure in general that only those involved in the case itself, or in other cases, can be present. Accordingly, I hope that these Amendments will be acceptable to the proposers of Amendment No. 19. They secure private hearings and determinations for the overwhelming majority of adoption applications.
§ My Lords, the Amendments have been drafted in order to overcome the difficulties mentioned by the noble Lord, Lord Winterbottom. As against Amendment No. 19, they have the advantage that there is no need for a special rule-making power. In principle, if the Bill can declare the law as required and not too much complexity is involved in that operation, it is better to deal with these matters on the face of the Bill than to consign them to regulatory powers. I am sure the House as a whole will agree with that approach.
§ These Amendments further make uniform provision for all proceedings under Part I. Private hearings will be secured 1115 by Clauses 18(2) and 21, which the Government think desirable. As I understand it, the only difference in substance between the Government's Amendments and the Opposition's Amendments is that, under the Government's Amendments, proceedings in the High Court are not required to be heard in chambers. The Opposition's Amendments require all hearings to be in private. As noble Lords will see, they would enable determinations—that is to say, the decisions of the court—to be made in public, if the rules permitted, in any court. I do not think that the power need be taken for the county courts and the magistrates' courts. It is very rarely that a declaratory statement of the law of substance need be publicised from there, though I say that with every respect for their standing and undoubted learning. The question remains: what is the appropriate provision for the High Court, which disposes of only about 40 cases a year at present, and which will have exclusive jurisdiction under Clause 24?
§ We have carefully considered whether to follow the Amendment of the noble Baroness on this point, and go to the length of distinguishing between hearings on the one hand, and determinations on the other, in the High Court only. But, on the whole, we have come to the conclusion that it is simpler, and we think perfectly safe, to enact the provision currently in the rules for the High Court and to leave this matter, as in wardship, guardianship and divorce, to the discretion of the High Court judges. As I have said, they will normally wish to preserve the privacy of the proceedings. Accordingly, I hope that this effort which has been made in a somewhat difficult field to meet the suggestions that were made in Committee will achieve the approval of the House. I beg to move.
§ Baroness MACLEOD of BORVE
My Lords, I wonder whether I heard the noble and learned Lord aright? Did he say that in future adoption orders were to be given in a matrimonial court and not in a juvenile court? The noble and learned Lord is well aware that the juvenile courts have a much wider experience of dealing with children and families than do people sitting in the matrimonial courts. Personally I sit in both courts, but those of us who sit in the juvenile courts—as I do every week 1116 —feel, perhaps wrongly, that we know more about children than do people who are sitting exclusively, and it is exclusively, in London, at any rate, in the adult courts. That is why we are sitting in juvenile courts. I am very perturbed to hear about this proposal and I am surprised that anybody should have recommended it. Would the noble and learned Lord tell me whether I did hear aright?
§ The LORD CHANCELLOR
My Lords, if your Lordships will permit me to answer the noble Baroness, whose experience and knowledge in this field is, of course, enormous and to whose opinion, therefore, I and the House will pay most careful regard, it is the case that the Houghton Committee did make this recommendation that these proceedings should be heard in the magistrates' court, and they did so after taking evidence, as I understand it, upon the matter. So the answers to the question is, Yes, these proceedings will no longer be dealt with in the juvenile court but in the magistrates' court.
§ Lord SANDYS
My Lords, I should like to thank the noble and learned Lord on the Woolsack for reaching this very happy conclusion after a protracted debate. I should also like to express gratitude on behalf of my noble friend Lady Young and myself, that the noble and learned Lord, during his absence in Lagos and since his return which we are delighted to welcome today, has been able to fulfil all our wishes at a time when he was so much preoccupied with other weighty matters. Therefore, we are very grateful to him for giving attention to this particular matter.
I think it is important here to refer back to the Houghton Report, and our pleasure is renewed in quoting paragraph 270, which reads:The law requires adoption cases to be dealt with in private. We are sure that this is right, and we recommend that this should also apply to guardianship applications.It is such a constant quotation from Houghton that we are delighted that Her Majesty's Government have thought fit to carry it out in detail.
There is only one small matter upon which I would seek advice from the noble and learned Lord on the Woolsack, and that is in regard to anonymity. In cases before the High Court where it proves 1117 necessary ultimately in the particular situation which the noble and learned Lord has described, could he give us the assurance that the process of anonymity adopted at present will continue? With that may I once again on behalf of my noble friend Lady Young and myself thank the Government for their help in this matter.
§ Baroness BACON
My Lords, I intervene very briefly. I am afraid I disagree with the noble Baroness, Lady Macleod, about juvenile courts. I agree that in the juvenile courts the Bench are very experienced in dealing with children, but I am not at all sure that these proceedings should be dealt with by the juvenile courts. Although this may not necessarily be so, when a case comes before a juvenile court the general impression is that the children involved have done something wrong. There is that association in people's minds, and I would much prefer the matter to be dealt with as the noble and learned Lord has outlined in his Amendments. Nevertheless, I hope —perhaps my noble and learned friend could give us some information about this—that the time will not be too far postponed when we see a great many of these matters dealt with specifically by a family court, not only the adoption proceedings but the other proceedings outlined in this Bill. I am sure that course would be better than proceeding in the magistrates' court or even the juvenile court.
§ Baroness MACLEOD of BORVE
My Lords, before the noble Baroness sits down, may I ask her whether she agrees that to go to the matrimonial court is to go to an adult court, and people might think the worst of them for that, too?
§ Baroness BACON
My Lords, I agree that that is so, and that is why I would rather have a family court that was not a juvenile court or a matrimonial court. But I think of the two I would prefer the suggestions in the Amendments outlined by my noble and learned friend than the juvenile court. I would rather see a family court undertaking all these things.
§ The LORD CHANCELLOR
My Lords, if I may, by leave, answer the questions put to me, the question of a family court is still under consideration 1118 and we have not come to a final conclusion upon the matter. That is all I can say in regard to this sisterly difference (if I may, without impertinence, so describe it) which has arisen on this matter. In regard to anonymity, I can assure the noble Lord, Lord Sandys, that the same practice of anonymity so magnificently reflected in the description of In Re W, which gives very little away, will be maintained hereafter in the High Court.
§ On Question, Amendment agreed to.
§ 4.29 p.m.
Lord SANDYS moved Amendment No. 18:
Page 12, line 22, leave out ("if the court thinks fit ") and insert (" not").
§ The noble Lord said: My Lords, we return in Clause 19 to the appointment of the guardian ad litem. Unfortunately, we have not had quite the same satisfaction from Her Majesty's Government in this regard. It would be for the convenience of the House if there were to some extent a restatement of the situation. On Committee, we discussed at some length the question of the appointment of the guardian ad litem. We referred at that time to paragraph 245 of the Houghton Report which clearly sets out the position of the present law requiring the court to appoint a guardian ad litem in all adoption applications. The point at issue is whether the guardian ad litem and the adoption officer should be one and the same person if the court so desires. On Committee, your Lordships listened with great interest to two noble Baronesses with great experience in this field—my noble friend Lady Macleod of Borve, who expressed her opinion of a very large court in the North of London, and the noble Baroness, Lady Fisher of Rednal—and it was clear that from practical experience,, further reinforced from the evidence placed before the Houghton Committee, opinion is very much divided.
Only a few minutes ago I clearly suggested that the Houghton Report was confident in its previous recommendation on the matter to which we have just been referring; that is, the hearing of applications in private. But when it came to this matter, they specifically referred to the division of opinion that exists. If I may be allowed— hope that I am not trying the patience of the
House in this matter, because it is one to which we attach particular importance —I should like to quote from paragraph 247 of the Houghton Report. It said:
There was a considerable amount of comment on the suggestion that the appointment of the guardian should be discretionary. The evidence presented widely conflicting views. Generally speaking, agreement came mostly from professional social work agencies, especially those involved in adoption placement, work. Some legal and medical associations also agreed. Disagreement focused mainly on two aspects, doubts about present standards of practice of placing agencies and the view that an independent and impartial investigation was necessary as a safeguard to all parties and primarily the child".
§ We have dealt in very great depth on Clause 2 with the question of the primacy and, also, the importance of the welfare of the child. Here is reflected the conflicting views of the parties. It is our confirmed view—of my noble friend Lady Young, myself, many of my noble friends, and, indeed, it is a view shared by a number of noble Lords from all parts of the House—that there is a strong case that the guardian ad litem and the adoption officer should be two separate people.
§ My noble friend Lady Macleod of Borve referred particularly to the situation in her own court, and I think that where your Lordships are able to listen to direct experience it has special value. On Committee, the noble Baroness said that, in all circumstances, the guardian ad litem gave a report and the adoption officer was not admitted to proceedings before the court. Clearly the adoption officer carried out his functions in the normal way, which is, of course, to record and witness proceedings and to make suitable disposal of them. But the point which she most clearly made was the necessity, in all cases, for the guardian ad litem and for the appointment of that very important personage.
§ Throughout Committee stage we were much aware of the situation—which has occurred not only in the case of Maria Colwell but in a number of other tragedies in this field—in which the appointment of officials could have had even greater benefit, had their advice been listened to at an earlier stage. It ought now to be confirmed in the Bill that the view of your Lordships expressed on Committee, and clearly adhered to, is that the guardian ad litem should be mandatory 1120 in all cases and should be a different person from the adoption officer. I do not think it is necessary to quote further evidence at very great length, because we have gone into this business, as the noble Lord, Lord Wells-Pestell, is only too keenly aware, and we have not changed our views since Committee. I hope he will appreciate that we read his remarks most closely and paid extreme attention to his views at that time. I beg to move.
§ 4.36 p.m.
§ Baroness ELLIOT of HARWOOD
My Lords, I should like to support this Amendment which we debated at great length on Committee stage. Since the Committee stage, I have had further communications from social workers and others on this subject. I think it is essential that there should be two people and that, if possible, they should both be knowledgeable social workers. If that is not possible, as has often happened in the case of Scotland the guardian ad litem should be a legal officer or solicitor who obviously knows from the legal point of view all the details of the procedures connected with the case. But there is the other point of view—which I call the social worker point of view— which often a legal mind does not know about. It is extremely important to have someone representing both parties, not necessarily conflicting, but knowing that the two different aspects should not be entirely in the hands of lawyers and that there should be the two persons involved in each case. I am sure it would mean that many of the difficulties, and some of the disasters that have happened in the past, would not take place in the future. I very much hope that the Government will accept this Amendment.
§ Baroness MASHAM of ILTON
My Lords, can I ask the Minister whether this situation would involve straightforward, uncontested cases? I wonder whether it would put a strain on the adoption societies and social workers?
§ Lord WELLS-PESTELL
My Lords, the noble Baroness, Lady Elliot of Harwood, is always persuasive. I have known her for many years and have a natural inclination to try to meet her wishes, but this is one of the few occasions—I hope that it is "few"—when I shall not be able to do so. As I understand it, the intention of the Amendment 1121 is to prevent the court from appointing the same person as both the guardian ad litem and the reporting officer. This Amendment would have the same effect as Amendment No. 21 which was discussed on the second Committee day of 13th February last. What seems not to have been clearly understood by a good many who took part on that occasion, is that court rules will continue to provide that officers appointed as adoption officers and guardians ad litem must be independent of the local authority or adoption society concerned in the adoption. I should have thought that that would meet the noble Baroness's point. The adoption officer will carry out most of the functions at present carried out by guardians ad litem, but instead of only confirming and reporting to the court that the parents' consent to adoption has been given freely, the adoption officer will also witness the agreement of all those whose agreement is required and bring to the court's attention any other relevant matters.
Another point which might be emphasised is that an additional feature and safeguard of the new adoption procedure will be that the agency concerned or, where there is no agency, the local authority, will be obliged under the provisions of Clauses 20(4) and 17(2) to submit reports to the court and toassist the court in any way the court may direct".Thus, for every adoption application the court will have at least two reports, from different sources where at present it has only one—from the guardian ad litem— and if different officers were appointed as adoption officers and guardians ad litem,
§ presumably it would have three, which would not be necessary. The object of Clause 19 as drafted is to avoid the unnecessary duplication of duties. If, however, the court consider that different persons should be appointed as guardians ad litem and adoption officers, so far as I can see there would be nothing to prevent them doing so. To provide that the court should do so in every case, as the noble Baroness's Amendment provides, would, with respect, be wasteful of social work resources and, unless the case had some special features, unnecessary. I do not know whether I have satisfied the noble Baroness with that explanation. I hope that I have, having pointed out that there would be distinct and quite different functions.
§ Lord SANDYS
My Lords, with the leave of the House, I should like to have an opportunity of replying to the noble Lord, Lord Wells-Pestell. He has spoken most persuasively of circumstances in which the court may have the opportunity of doing certain things. We are, naturally, drawn along to some extent by his persuasion and we recognise what he said in his speech on Committee, but this situation, which we have discussed at considerable length, we believe to be so important that it should be clear beyond peradventure. It has been our confirmed view in the past and it is reinforced now and we shall, I regret, have to press the Amendment.
§ 4.44 p.m.
§ On Question, Whether the said Amendment (No. 18) shall be agreed to?
§ Their Lordships divided: Contents, 76; Not-Contents, 48.✶ (See Col. 1170.)1123
|Aberdare, L.||de Clifford, L.||Hailsham of Saint Marylebone,|
|Airedale, L.||Denham, L.||L.|
|Amherst, E.||Derwent, L.||Harvey of Prestbury, L.|
|Amulree, L.||Ebbisham, L.||Hawke, L.|
|Balfour of Inchrye, L.||Elliot of Harwood, B.||Hayter, L.|
|Beaumont of Whitley, L.||Elton, L. [Teller].||Headfort, M.|
|Berkeley, B.||Emmet of Amberley, B.||Henley, L.|
|Birdwood, L.||Erroll of Hale, L.||Hornsby-Smith, B.|
|Bridgeman, V.||Erskine of Rerrick, L.||Hylton, L.|
|Byers, L.||Ferrers, E.||Hylton-Foster, B.|
|Caccia, L.||Fraser of Kilmorack, L.||Killearn, L.|
|Campbell of Croy, L.||Geoffrey-Lloyd, L.||Kilmarnock, L.|
|Chelwood, L.||Gladwyn, L.||Long, V.|
|Coleraine, L.||Glasgow, F.||Loudoun, C.|
|Colville of Culross, V.||Gore-Booth, L.||Lyell, L.|
|Cottesloe, L.||Grenfell, L.||Macleod of Borve, B.|
|Cowley, E.||Gridley, L.||Mancroft, L.|
|Daventry, V.||Grimston of Westbury, L.||Monck, V.|
|Newall, L.||St. Helens, L.||Tenby, V.|
|Nugent of Guildford, L.||St. Just, L.||Tranmire, L.|
|Ogmore, L.||Sandford, L.||Vickers, B.|
|Platt, L.||Sandys, L. [Teller.]||Vivian, L.|
|Porritt, L.||Sempill, Ly.||Ward of North Tyneside, B.|
|Ruthven of Freeland, Ly.||Strange, L.||Wigoder, L.|
|St. Aldwyn, E.||Strathspey, L.||Young, B.|
|St. Davids, V.||Swinton, E.|
|Ardwick, L.||Gaitskell, B.||Pannell, L.|
|Arwyn, L.||Gordon-Walker, L.||Peddie, L.|
|Bacon, B.||Hale, L.||Shinwell, L.|
|Blyton, L.||Hall, V.||Slater, L.|
|Brockway, L.||Hanworth, V.||Snow, L.|
|Bruce of Donington, L.||Henderson, L.||Stedman, B.|
|Buckinghamshire, E.||Houghton of Sowerby, L.||Stow Hill, L.|
|Castle, L.||Hoy, L.||Strabolgi, L. [Teller.]|
|Champion, L.||Jacques, L.||Summerskill, B.|
|Chorley, L.||Janner, L.||Taylor of Mansfield, L.|
|Cooper of Stockton Heath, L.||Lee of Newton, L.||Wells-Pestell, L.|
|Donaldson of Kingsbridge, L.||Llewelyn-Davies of Hastoe, B.||Winterbottom, L. [Teller.]|
|Douglass of Cleveland, L.||Maelor, L.||Wootton of Abinger, B.|
|Elwyn-Jones, L. (L. Chancellor.)||Mais, L.||Wynne-Jones, L.|
|Evans of Hungershall, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative and Amendment agreed to accordingly.
§ 4.52 p.m.
§ The LORD CHANCELLOR
My Lords, this Amendment has already been discussed and considered at an earlier stage. I beg to move.
§ Amendment moved—
§ After Clause 19 insert the following new clause:
§ Hearings of applications etc. in private
.—(1) Proceedings in the High Court under this Part may be disposed of in chambers.
(2) All proceedings in the county court under this Part shall be heard and determined in camera.
(3) Proceedings in the magistrates' court under this Part shall be domestic proceedings for the purposes of the Magistrates' Courts Act 1952 but section 57(2)(d) of that Act shall not apply in relation to any proceedings under this Part."—(The Lord Chancellor.)
§ Clause 20 [Making of order]:
§ Amendment moved—
§ Page 12, line 38, leave out subsection (3).— (The Lord Chancellor.)
§ Lord WELLS-PESTELL moved Amendment No. 20:
§ Page 13, leave out line 26.
§ The noble Lord said: My Lords, I move this Amendment on behalf of my 1124 noble and learned friend the Lord Chancellor. This is a drafting Amendment which rectifies an error in the instructions given for the present print of the Bill. The words "subsection (7) should not apply to Scotland" were applicable to the subsection having this number which appeared in the Bill as first printed. That subsection is, however, now removed from the Bill and does not apply.
§ Clause 23 [Further provisions relating to property]:
§ The LORD CHANCELLOR moved Amendment No. 21:
§ Page 14, line 22, leave out from ("(1)") to ("a") in line 23.
§ The noble and learned Lord said, My Lords, this is one of a series of Amendments, including Amendments Nos. 22 and 23, which are technical and which are occasioned by the provisions in the Bill giving rights to the adopted child. They are drafting Amendments relating to the protection given to trustees who distribute trust property without notice of an adoption. The present law in Section 17 of the Adoption Act 1958 protects the trustee from an action for breach of trust if he has distributed without notice but does not prevent the adopted child from following the property into the hands of the other beneficiaries. Clause 23(1) was intended to reproduce the effect of Section 17(3) of the 1958 Act and to enable it to cover the new situation 1125 brought about by Clause 22, whereby a child adopted after the trust has been set up can, by virtue of the adoption, become, or cease to be, an object of the trust. In making this change, however, the clause inadvertently changed the basis of' the protection of the trustee in such matters as the degree of notice required to deny protection, and the liabilities against which protection is afforded. The matter is very technical, and I doubt whether I need explain it further. However, if any explanation is sought it may be forthcoming from an admirable note which I have in front of me.
§ Lord SANDYS
My Lords, the noble and learned Lord has drawn our attention to the fact that this is a very technical Amendment and I think all your Lordships would say "Hear, hear". On this occasion, knowing that this piece of draftsmanship has been done at a time when proposals are being put forward by Her Majesty's Government in regard to changing the law over the situation of discretionary trusts, with special relationship to the capital transfer tax, it is not perhaps for the convenience of your Lordships' House to go too deeply into this matter, especially as a Standing Committee is at present deliberating on it in another place. I must speak circumspectly in a field where I feel very ill-prepared to do so, but there are necessary safeguards and the noble and learned Lord has given us the assurance that it is a matter on which he confidently expects that your Lordships will not require further information. Although the House perhaps would wish to seek that further note on the matter which he has in front of him, it may well be that it would be better to seek a personal interview with the noble and learned Lord at a stage in our discussions before Third Reading and therefore, for my part and for my noble friends, we do not wish to make any further alteration to what has been proposed by the noble and learned Lord.
§ The LORD CHANCELLOR
My Lords, I am grateful to the noble Lord. I could enter into these rather labyrinthine and esoteric fields, but I would be happy, indeed happier, to accept his suggestion of a personal discussion about the matter.
§ Amendment moved—
§ Page 14, line 25, leave out ("British or foreign").—(The Lord Chancellor.)
§ Amendment moved—
Page 14. line 27, leave out from ("made") to end of line 28 and insert ("and, where such an order has been made but the trustee has not received notice of it, he shall not be liable to any person by reason of a distribution of any of the trust property made by him without regard to the order.
(1A) Subsection (1) does not prejudice the right of a person to follow the property, or any property representing it, into the hands of another person, other than a purchaser, who has received it.").—(The Lord Chancellor.)
§ The LORD CHANCELLOR moved Amendment No. 24:
§ Page 14, line 31, leave out ("interest") and insert ("property").
§ The noble and learned Lord said: My Lords, this is another drafting Amendment which amends Clause 23(2) of the Bill so as to speak of property settled with the title rather than of an interest. This is clearer, since the interest may well be the result of the settlement rather than the subject of it, and the Amendment will bring the subsection into line with the present law in Section 16(3) of the Adoption Act 1958. I beg to move.
§ Clause 27 [Obtaining of birth certificate by adopted person]:
§ 5.2 p.m.
Lord WIGODER moved Amendment No. 24A:
Page 17, line 8, leave out ("subsection is") and insert ("subsections are").
The noble Lord said: My Lords, I beg to move this Amendment which is a paving Amendment to Amendment No. 25B, and with your Lordships' leave I will devote my observations to the latter Amendment. Clause 27 provides that adopted persons when they reach the age of 18 may obtain copies of their birth
certificates. Your Lordships will remember that there was some discussion during the Committee stage as to whether, when an adopted person had reached the age of 16 and was proposing to marry, it was desirable that some information should be made available to that person in order to safeguard him against the possibility of embarking on a marriage with somebody within the prohibited degrees of blood relationship. I ventured to comment at that time that I thought that risk somewhat hypothetical, but both the noble Lord, Lord Wells-Pestell, and the noble Viscount, Lord St. Davids, indicated that they had known cases where that situation had arisen. It therefore seems desirable that I should try to introduce a modest measure into the Bill, as sought by Amendment No. 25B. It simply provides that the Registrar General shall provide on application to an adopted person over the age of 16 information as to whether that person
… and any other named person are within the prohibited degrees of consanguinity.
§ It may help protect them against the possibilities referred to during the Committee stage. I beg to move.
§ Baroness YOUNG
My Lords, the House will be aware that we have been very concerned about Clause 27 ever since we first considered this Bill. We on this side have down Amendment No. 25 to which my noble friend Lord Sandys will be speaking. However, a number of points arose on Clause 27 when we debated it in Committee, not least of which was the one which has been raised by the noble Lord, Lord Wigoder. I rise to say that we feel that this is a very useful Amendment to this clause. It seems to meet what could be a difficulty and we should like to support it.
§ Lord WINTERBOTTOM
My Lords, is it your Lordships' wish that we deal with Amendment No. 24A, which is a paving one for Amendment No. 25B, both at the same time? The Government are in full agreement with the substance of Amendment No. 25B. During our earlier discussion it was indicated that we felt that such an Amendment would be of value. While the Government are not able to accept Amendment No. 25B as drafted we should like an opportunity, 1128 with the permission of the House, to redraft it as far as practicable to match other relevant Statutes. I am told that it cannot stand on its own and must be related to other Statutes. For this reason I should be grateful if the noble Lord would be content to withdraw Amendment No. 24A and not press Amendment No. 25B, on the understanding that the Government will put down an alternative Amendment, while maintaining the substance of the Amendment put down by the noble Lord.
§ Lord BYERS
My Lords, is it the intention of the Government to put down this Amendment on Third Reading?
§ Lord WINTERBOTTOM
My Lords, this question arises in relation to some other points which we shall have to discuss later this afternoon. This is a matter of importance. I cannot give an undertaking that an Amendment will be put down on Third Reading or whether it will be in another place, but it will be put down. On that I can give an assurance.
§ Lord WIGODER
My Lords, I am a little unhappy at the reply given by the noble Lord, Lord Winterbottom. This matter was raised during the Committee stage and it was then indicated quite explicitly by the Government that they would be prepared to put down an Amendment at this stage. It was only because no such Amendment emerged that at the very last moment I ventured to draft something which could be put down in this way. It is desirable that your Lordships' House, having been given the opportunity of dealing with this Bill in the first place should send it forward in as near perfect a condition as is possible. In those circumstances, I very much hope that the noble Lord, Lord Winterbottom, will see that the appropriate Amendment to replace this Amendment is before this House when we come to Third Reading. On the understanding that that will be at least considered as a matter of urgency by the Government, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ The DEPUTY SPEAKER (Baroness Tweedsmuir of Belhelvie)
My Lords, before I call Amendment No. 25 I should 1129 point out that if this Amendment is agreed to I cannot call Amendment No. 25A.
§ 5.8 p.m.
§ Lord SANDYS moved Amendment No. 25:
Page 17, leave out lines 10 to 16 and insert:
(""(7) An adopted person born in England and Wales after 1st January 1976 who has attained the age of 18 years may apply to the local authority for the area in which he is residing for such information as is necessary to enable him to obtain a certified copy of the entry relating to his birth in the register of live-births; and the local authority shall after considering the application and discussing the matter with that adopted person, request the Registrar General who shall supply him, on payment by him of the prescribed fee (if any), with that information.")
§ The noble Lord said: My Lords, we now reach the point when we are discussing once again the question of birth certificates which, during the Committee stage, caused your Lordships a considerable amount of concern. This Amendment, as set out, would enable a procedure to take place whereby an adopted person born in England or Wales after 1st January, 1976, and who has attained the age of eighteen years could, after consulting a local authority and with the consent of the local authority which arranged the adoption in the first place —and having been granted permission by that local authority—approach the Registrar General.
§ This proposal carries forward the tone of the Houghton. Report which recommended that there was a very strong body of opinion which considered that law in England and Wales should be brought into line with law in Scotland where, for a long time, it has been possible for an adopted person to obtain a birth certificate record in somewhat parallel circumstances. We went into the Houghton Committee's recommendations in detail earlier, and I do not think it necessary to repeat the quotations to your Lordships this evening. However, the redrafting of this Amendment—which has been done with advice—closely co-ordinates with what the noble Lord, Lord Wigoder, has been attempting to do. I would most warmly welcome what he said, that the intention of your Lordships is that the Bill should proceed from this House in as perfect a condition as is humanly possible.1130
§ If the Amendments which the noble Lord, Lord Wigoder, has in mind are to be placed before your Lordships by the Government as a proposal on Third Reading, I think we have very little to fear. If, however, the Amendments which come forward are unsatisfactory and do not meet the suggestion which the noble Lord has made, we will be placed in a somewhat difficult position, because this Amendment, which flows from it, is rather closely interconnected.
§ I am placed in a somewhat difficult position, this being Report stage, as I shall address your Lordships on only one occasion. I had intended to ask the noble Lord, Lord Winterbottom, whether he had a similar idea of redrafting procedure for this Amendment as well. The noble Lord shakes his head, and therefore the situation is clear. My Lords, I do not think it would be for the benefit of the House to retrace our steps on this issue. On this side of the House our minds are very clear as to what we wish to do. We feel that it is desirable in these circumstances that a birth record should be available, at the discretion of the local authority. I am certainly encouraged in that position by professional advice which has been received. I therefore beg to move.
§ 5.11 p.m.
§ Lord WINTERBOTTOM
My Lords, in the case of Amendment No. 25 I am unable to give the same undertaking as I gave the noble Lord, Lord Wigoder, not for any particularly factious reasons, but because we believe that it will not achieve the ends which both sides of the House, and all three Parties, wish to achieve. We believe that whereas the Amendments standing in the name of the noble Lords, Lord Byers and Lord Wigoder—that is, Nos. 24A and 25B— make it somewhat easier to get access to birth certificates, this Amendment will make it more difficult for reasons which, if your Lordships will forgive me, I will explain at some length.
The noble Baroness, Lady Young, raised the issue, and it would appear that Amendment No. 25 would defer until 1st January 1994 the bringing into operation of the Houghton Committee's recommendation, to which this clause gives effect, that adopted persons of 18 and over should have the right to obtain 1131 copies of their birth certificate. This seems a rather peculiar situation, and if the noble Lord, Lord Sandys, is inhibited by the rules of the House from speaking again the noble Baroness might have something to say on the subject.
Furthermore, the adopted person would be required to apply to his local authority for the information necessary to enable him to obtain a copy of his birth certificate, and the local authority after considering the application (but with apparently no discretion to refuse it) and discussing the matter with the adopted person, would have to ask the Registrar General to supply him with the necessary information. We believe that this would be an additional barrier to achieving easy access to the birth certificate required by the individual.
This Amendment would not prevent adopted persons, who already had information about their original name and date of birth, from obtaining their birth certificates by applying to the Registrar General in the same way as a person who has not been adopted. As the basic information is available on every adopted person's adoption order, even under the present law the adopted person has only to get hold of a copy of this to get access to his birth record and to the information which his birth certificate contains about his natural parents. If, therefore, the purpose of the Amendment is to protect natural parents against the possibility of being traced, it suggests a misunderstanding of the present law. Furthermore, it would discriminate against adopted persons who do not have the initiative or confidence to obtain the necessary information themselves, or a sufficiently secure relationship with their adoptive parents to obtain the information from them.
Moreover, this Amendment would help to perpetuate the myth which seems to exist at present about the confidentiality of adoption. It is not true—and I must emphasise this—that natural parents cannot be traced under the present law; they can be. In this respect, therefore, if the Amendment seeks to deal with the point made at earlier stages of the Bill about retrospection, then, in our opinion, it is misconceived. While the Government understand and sympathise with the fears and anxieties that have been 1132 expressed on behalf of natural parents, experience in Scotland, which has been mentioned by the noble Lord, where adopted persons have always had access to their birth records on reaching the age of 17, suggests that these fears are exaggerated.
In replying to the noble Lord, I have to say something positive here. The Government intend by means of rules to carry out some of the other Houghton recommendations relating to this matter. For example, they intend to provide that the name of the adoption agency which arranged the adoption should appear on the adoption order, so that an adopted person may, if he or she wishes, get in touch with the agency for any help or information which he or she may need. In addition, the Government are exploring, in consultation with the local authority associations, the possibility of making the social services automatically available to any adopted person who applies to the Registrar General under this clause. Whether a practical scheme will emerge it is not yet possible to say, but I hope the House will appreciate that efforts are being made to hammer out a practical scheme. I hope for the reasons that I have given—namely, that it narrows the line of approach to the individual seeking a birth certificate; that in bringing in the local authority a new barrier is erected and that the Government are trying to achieve the ends required by the Department's procedures— the noble Lord will not press his Amendment.
§ Baroness YOUNG
My Lords, I am sure we are all very grateful for the reply of the noble Lord, Lord Winterbottom, and for the great trouble he has taken to go into this matter very deeply. We on this side of the House have also been thinking very deeply about this matter, and we would not have put down the Amendment had we not had quite a number of representations made to us between Committee and Report, not only by people who have adopted children who are very concerned about this point, but also by professional social workers. We have also had representations made to us by a number of Members of your Lordships' House who may not be here today, but who have clearly felt strongly about this point. We are, of course, very glad to hear that there will be 1133 regulations about the interpretation of this clause, but may I answer some of the points that have been raised?
I am, of course, aware that it is now possible for an adopted person to get his birth certificate, but it is perhaps a fact of life that it is a quite difficult procedure to go through and adopted people may not realise—and I think they do not usually realise—that this is possible. Our concern is that this is retrospective legislation, and it is a concern that is shared by the directors of social service who have made this point in their very valuable memorandum. The first part of our Amendment is designed to meet this point.
Among the people who wrote to me about this matter was a couple who have adopted children, and who give every indication that the adoption is a very happy one. Their point is that the adoption is a happy one; the children are their children, and they belong to the whole extended family. To suggest that somehow they could go back in time and look to see where they came from is introducing the proposition that adoption is not permanent, whereas by its very nature it is permanent. If one takes the classical example of the sort of person who will seek to find his birth certificate, it will almost certainly be the case of an adopted child who is unhappy. So we then have the circumstance of a child, perhaps; reaching the age of 18, who has had an unhappy life—something by which we would be deeply moved and would regret—seeking to find out who are his natural parents. Having got his birth certificate he then goes to the natural parents and, as I said on Committee stage, this could be extremely upsetting for the natural mother who then finds after 18 years (when she thinks that she has put all this behind her and has married, perhaps, and has got another family) that the son or daughter appears on the doorstep.
Equally upsetting could be the fact that the child could have the door slammed in his face; so that he would then have had not only the distressing experience of an unhappy life with adoptive parents but the realisation that once again the natural mother does not want to see him. For this reason we put in the second part of our Amendment whereby the child can only find out about the natural 1134 parents when there is someone from the Social Services Department with him to explain the circumstances. Otherwise, it seems to me, a situation could arise which could be very cruel not only to the natural parents but also to the adopted child.
We do not know whether the Government fully appreciate the kind of situation that can arise. We tried to find out the circumstances where this would arise, and all professional opinion seems to indicate that although there will not be a large number of cases, those that do arise will always be cases where the adoption is not a happy one; so that one needs to ask oneself whether this clause, as it stands, provides the right procedure. We on this side of the House do not think it does. For this reason, we have put down an Amendment which, first, would prevent this legislation being retrospective in effect; and, secondly, would ensure that where, through his birth certificate, the child found out who were his natural parents, he would be helped by a social worker over this difficult situation. We have considered it carefully and for the reasons given we do not feel able to withdraw it at this stage.
§ Lord WIGODER
My Lords, may I, for the only time in the course of the passage of this Bill, indicate that I prefer the Government clause to the proposed Amendment. It is difficult to see how it can be said that this is retrospective legislation when, in the first place, existing legislation permits precisely the same thing to happen; and, secondly, it can only apply to anything done after the date that the Bill is passed. All the experience of those who have looked at this matter—and there was, for example, a substantial experiment in Scotland— tends to show that adopted children should be encouraged at a suitable age to find out full information about their antecedents and background; because those who did discover, on reaching the age of eighteen, who their natural parents were, benefited very much and were grateful for the information given to them. I venture to think that this Amendment puts an obstacle in the way of that happening and that that is undesirable. With some reluctance, on this one occasion I must indicate my opposition to this Amendment.
§ Baroness MASHAM of ILTON
My Lords, before the noble Lord replies, 1135 may I say that only last week I met a very happily married woman aged about thirty-five who had not had an unhappy childhood but who wanted—merely out of curiosity she told me—to have one look at her natural mother, just to see what she looked like. It was only curiosity; it was not real unhappiness that brought her to this. She did not discover who her mother was; but she was still slightly curious. I think that a social worker might have been involved previously. I am not totally in agreement with the Amendment moved by the noble Baroness.
§ Baroness EMMET of AMBERLEY
My Lords, I am rather in agreement with the last speaker. It seems to me that this places an obstacle in the path of the young individual who wants to know where he came from. I cannot help feeling that he has the right to know; and this places one more obstacle between him and this knowledge. On the whole, I prefer the Government's viewpoint.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, before the noble Lord replies, I wonder whether he would answer two queries of mine—and I am not posing either in a polemical sense—both of which I have asked myself several times during the passage of this Bill. The first is on the merits of this Amendment. I can remember a case in which I was engaged professionally not very long ago when I was practising at the Bar. It was not, as it happened, an adoption case; but I think that noble Lords will see in a moment the relevance of what I am going to say. It was a case where the natural father had murdered the natural mother and the battle taking place was, in fact, between the maternal grandparents and the sister of the natural father. Supposing that the child of that marriage when he grows up—I forget whether it was a boy or a girl; I think it was a boy—wants to find out his antecedents. I wonder whether somebody ought not to warn him not to probe too far. What happens then?
The other question tells on the other side of the Amendment, so I am not dogmatising about this. At the beginning of this Bill, you will see a provision providing that marriages between a natural brother and a natural sister are void and, 1136 that equally, the law of incest applies to a natural brother and a natural sister. It is not always the case that the adopting parents live very far from the natural parents, especially in urban situations. If a young man who is adopted wants to get married, how can he ascertain that he is not marrying his own sister unless he knows something about his natural birth and parentage? What happens if he gets married, and the appalling fact is that he has married his natural sister? Both these things can happen. This renders the subject of acquiring information both difficult and important. It is idle to say that these cases are so rare that it does not matter; because everything that can happen does happen in a population of our size. That is my experience. There is no case so unlikely that you will not find it turn up, even in the course of a single professional lifetime. Therefore, I should like the Government to consider those two possibilities.
§ Lord SEGAL
My Lords, this Amendment illustrates the appalling difficulties which we are liable to get into when we attempt to legislate in fields of tremendous psychological complexity. It often happens that an adopted child, without any question of an unhappy adoption and with no reflection at all on the parents who adopted him, may wish to discover who his parents are. It is with many children a perfectly natural psychological urge: they want to know who their parents are. The effects of finding out may vary according to the circumstances. I believe that the Government are absolutely right in providing this loophole, so that a social worker can be brought in before any step is taken which may cause a permanent psychological trauma in the case of certain types of people. In cases where the social workers may find themselves in difficulties, they should be obliged to have recourse to expert professional advice. If necessary, a psychologist or a doctor should be at hand to give advice to a social worker who may find himself in this difficulty. I think that the Government's suggestion of bringing in a social worker who is not emotionally involved in the problem would be an enormous advantage. For that reason, I think that if this Amendment were carried to a Division, I would vote against it.
§ Lord WINTERBOTTOM
My Lords, I am grateful to the noble Baroness for the clear exposition of her point of view. I understand the dilemma better now than I did on the earlier stages of the Bill. As I understand it, what this Amendment is designed to do is somehow to provide an additional buffer against emotional shock, either if that shock were suffered by a child whose adoption was unhappy or if the shock were felt by a natural mother who did not expect to see her natural child appearing on her doorstep, or, the other side of the problem, if there were a rebuff of the natural child by the natural mother when it appeared on her doorstep. The noble and learned Lord, Lord Hailsham of Saint Marylebone, mentioned an even more traumatic situation in the first of his two cases—an established situation where the child of two parents was involved in murder and suddenly discovered this from either his father's sister or his maternal grandmother. Nevertheless, legislating in this area seems to present major difficulties. The Houghton Committee made this recommendation after considering the results of research on the Scottish experience in this area. It was not dreamed up and their recommendations were based on experience. As I understand it, the noble Baroness, Lady Young, and the noble Lord, Lord Sandys, are trying to push this recommendation into the future, when presumably we shall have a greater experience of situations of this kind.
I now have a much clearer appreciation of the buffer mechanisms which the noble Baroness and the noble Lord are trying to introduce, but I am reasonably hopeful that we can achieve the ends sought by the speakers who have associated themselves with the Amendment by administrative means—by putting the services of the local authorities and the social services which are available at the disposal of the child seeking to discover its natural parents on a voluntary basis. The Amendment is attempting to place it on a statutory basis. I believe that the noble Baroness, Lady Emmet of Amberley, is on the side of the Government in this matter, in that she believes that statutory imposition of a barrier would be undesirable. I believe she would agree that the voluntary use of the social services would be helpful in avoiding the traumatic shock which might arise from 1138 situations such as those that have been described today in your Lordships' House.
§ Lord DAVIES of LEEK
My Lords, I shall speak briefly. I listened with interest to the noble and learned Lord, Lord Hailsham of Saint Marylebone. Reference was made to those exceptions which we know of in life. They have come within my experience over 27 years as a Member of Parliament in country areas. We know of incest happening. On the other hand, it is difficult, unless we can find some administrative formulae, to legislate for these exceptional situations. Can we not leave such cases to be dealt with in court? Supposing an adopted child at age 18 becomes a brilliant pop singer—which is nothing new these days, with pop singers making half a million or a million. He is suddenly killed in a road accident. What is the position? To whom does his money go? The natural mother may know about the position and appear suddenly. This is an exceptional case. But we cannot legislate for the whole gamut of exceptional human activity. Consequently I hope that noble Lords will consider the possible administrative formula which my noble friend has just suggested.
§ Lord SANDYS
My Lords, I am most grateful to noble Lords and perhaps the House will give me the opportunity of speaking a second time. The noble Lord, Lord Winterbottom, has suggested a course of action which we have scarcely had the opportunity of considering. There are two problems in our minds. One is an element of doubt, a dubiety which is cast upon the Amendment as it stands at the moment. We are worried that if we have to rely on administrative means, the formulation of rules or something of that kind, the situation will not be sufficiently safeguarded. We come back to the test of the late Lord Conesford, the Conesford test, which he constantly applied to assist your Lordships. He would say: "And what is in the Bill?". If we set aside this Amendment there will be nothing in the Bill by which this set of circumstances is catered for. I am much obliged to my noble and learned friend Lord Hailsham of Saint Marylebone for bringing before your Lordships further problems in this regard and clearly setting before your 1139 Lordships circumstances which in his vast experience have arisen. I think it would be for the convenience of the House, and it is certainly the wish of my noble friend Lady Young and myself that we should withdraw this Amendment and take counsel with the noble Lord, Lord Winterbottom, and his advisers on how best we may reach a satisfactory conclusion, and not press the Amendment this afternoon.
§ Amendment, by leave, withdrawn.
§ 5.37 p.m.
§ Lord WIGODER moved Amendment No. 25A:
§ Page 17, line 12, at end insert ("or has married, whichever is the earlier,").
§ The noble Lord said: My Lords, this Amendment is no longer of the consequence it was since the Government have agreed in principle to accept Amendment No. 25B. If one accepts that adopted persons at the age of 18 are entitled to, and may benefit from, information about their background, there is, perhaps, something to be said for allowing adopted persons before the age of 18, but after their marriage, to obtain similar information. This is not a matter I wish to press, but I would ask the Government whether there are any strong reasons why this proposal is thought not to be desirable. With these few words, I beg to move.
§ Lord WINTERBOTTOM
My Lords, I am grateful for the helpful approach of the noble Lord, Lord Wigoder. I thought we had almost generally agreed on this point in our last discussion. To take into account the example of incest raised by the noble and learned Lord, Lord Hailsham, which we know has occurred in the experience on the Bench of my noble friend Lord WellsPestell, if this information is sought after marriage it is too late. It is essential that it should be discovered before marriage. For this reason we welcome Amendment No. 25B of the noble Lord, Lord Wigoder. It could prevent a dilemma facing a young couple after marriage if they discovered they were brother and sister, whereas Amendment No. 25 would not avoid this situation.
§ Amendment, by leave, withdrawn.1140
§ Clause 28 [Restriction on arranging adoption and placing of children]:
§ Lord WINTERBOTTOM moved Amendment No. 26:
§ Page 17, line 42, after ("(3)") insert ("(i)").
§ The noble Lord said: My Lords, with the permission of the House I will speak to Amendments Nos. 26 and 27 together, which I move on behalf of my noble and learned friend the Lord Chancellor. Amendment No. 26 simply makes a small rearrangement in the structure of Clause 28 to accommodate Amendment No. 27. The second Amendment changes the penalty for the offence which is set out in Section 29(3) of the Adoption Act 1958 to bring it into line with the other penalty provisions in the Bill; namely, imprisonment for a term not exceeding three months, or a fine not exceeding £100, or both. In addition, the second Amendment is consequential upon the repeal of Section 29(1) and (2) of the 1958 Act which, among other things, made it an offence for anybody except a registered adoption society or a local authority to make arrangements for the; adoption of a child. The provisions in paragraph (a) of Clause 28 substitute a new subsection (1) to Section 29, and the Amendment makes subsection (5) consistent with this. I beg to move.
§ Amendment moved—
Page 18, line 2, at end insert—
("(ii) for the words "six months" there are substituted the words "three months";
(c) in subsection (5) "subsection (1)" is substituted for "subsection (2)".").—(Lord Winterbottom.)
§ 5.42 p.m.
§ Baroness YOUNG moved Amendment No. 28:
Page 18, line 2, at end insert—
(" ( ) the following subsection is inserted after subsection (5)—
(5A) The court by which a person is convicted of a contravention of subsection (1) above may order the child in respect of whom the offence was committed to be placed in the care of the appropriate local authority."").
§ The noble Baroness said: My Lords, we have put down this Amendment to 1141 Clause 28, because on reading the Bill it appeared to us that there was a gap in the provisions. Of course, we are all in support of the principle behind Clause 28; namely, that private adoptions shall become illegal. The question, however, which arises is this: if a private adoption takes place and the person comes before the court, what happens to the child in these circumstances? Is the child to be returned to the natural parent who has already placed it privately for adoption? Our Amendment seeks to say that where a person is convicted of a contravention of subsection (1), the child will be committed to the care of the local authority. This seems to us to be a prudent measure and the right measure, in the best interests of the child. Therefore, I hope that the Government will feel able to accept the Amendment. I beg to move.
§ Lord WINTERBOTTOM
My Lords, the Government are in full agreement with the principle behind this Amendment and do not wish to dispute the intention. However, I am arguing the case today that the Government believe that the Amendment is unnecessary. Local authorities and the police have sufficient powers to ensure the protection of the child under Section 1 of the Children and Young Persons Act 1969. If a care order is needed, it will be preferable for the local authority or the police to take care proceedings in the juvenile court; and that, I believe, is the wish of the noble Baroness. The court which is dealing with the offence, would not, we believe, be the appropriate court to deal with the care of the child. These are two separate issues, and we believe that they should be kept separate. It is for this reason that, while agreeing with the intention of the Amendment, we believe it to be unnecessary.
§ Baroness YOUNG
My Lords, I am, of course, very glad to hear that the Government agree with us about this matter. I am also glad to hear that this Amendment is unnecessary. However, having listened to what the noble Lord has had to say, I should have thought that between one proceeding taking place and another, there could well be a gap in the care of the child. I hope very much that the Government have looked at this matter and have made quite certain that the child could not just find 1142 itself back in the care of the natural mother who had already, as it were, given away the child, because this would be entirely against the principles of this Bill and entirely against what, I think, we would all regard as good social work practice. However, having received the assurance of the Government, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 30 [Restrictions on removal of child pending adoption]:
§ Lord WINTERBOTTOM moved Amendment No. 29:
§ Page 19, line 30, at end insert ("or on arrest").
§ The noble Lord said: My Lords, with the leave of the House, may I move Amendments Nos. 29 and 30 together, and I do so with, may I say, some relief! The picture of life in the outside world which both the Houghton Committee and this Bill seems to paint is that of angelic children being mishandled and brutalised by demonic parents. I think that most Members of your Lordships' House have families and will probably agree with me that perhaps original sin is divided fairly equally between parent and child. The reason this Amendment has been put down by my noble and learned friend the Lord Chancellor, whose Amendments I am moving on his behalf, is that, as drafted, Clause 30 would prevent the removal of a child from applicants for an adoption order who had looked after the child for five years, except with the leave of the court or under authority conferred by any enactment, for example, a place of safety order.
§ There is the situation where original sin breaks out and the child commits an arrestable common law offence. This has been known to happen. For this reason, since the child is coming in contact with a court, the Amendment is so drafted that the exceptions which are already included in the Bill will have added to them the exception to cover a child who is arrested while committing an arrestable common law offence.
§ Lord WIGODER
My Lords, may I raise a point of very considerable triviality. If the Amendment is carried—and I certainly have no objection to it—the 1143 relevant wording from line 27 onwards will then read:… no person is entitled, against the will of the applicant, to remove the child from the applicant's custody except on arrest … ".It appears to me to be not only ambiguous but "tribiguous", if there is such a word, as to whose arrest is being contemplated. The meaning and intention is perfectly clear, but grammatically I venture to think that some textual alteration will be necessary at a later stage.
§ Lord WINTERBOTTOM
My Lords, I have every sympathy with the point which has been made by the noble Lord, Lord Wigoder, because when I first read this Amendment I assumed that it was the parent who was under arrest, not the child. However, I was assured that it is "little Willie", whose original sin broke out, who is the subject of this Amendment. Nevertheless, I shall bring the ambiguity or, rather, the lack of clarity to the notice of my noble and learned friend, and it may be that at a later stage we shall be able to produce something better.
§ Amendment moved—
§ Page 19, line 39, after ("enactment") insert ("or on arrest").—(Lord Winterbottom.)
§ 5.50 p.m.
§ Baroness YOUNG moved Amendment No. 31:
Page 19, line 44, at end insert:
("( ) Where a local authority receive notice under subsection (2) of this section in respect of a child in the care of any other local authority or of a voluntary organisation, the local authority receiving the notice shall inform the authority or voluntary organisation in whose care the child is.").
§ The noble Baroness said: My Lords, I do not wish to take up the time of the House in speaking at any length to this matter. I moved this Amendment in Committee and the Government said then that they would consider it. There was no Government Amendment to meet this point, so I put it down again. I hope that the Government will feel that it is only good social work practice that where a child is in the care of a voluntary organisation, the local authority shall 1144 notify that organisation when custody proceedings are to be instituted. I beg to move.
§ Lord WINTERBOTTOM
My Lords, I am grateful to the noble Baroness. As I indicated at an earlier point to, I think, the noble Lord, Lord Wigoder, undertakings that were given during the Committee stage of this Bill will be implemented, although pressure of work—and I think noble Lords will agree that this Bill has thrown up a great deal of work—has prevented us from tabling the promised Amendments at the Report stage of the Bill. I can give the same undertaking to the noble Baroness, Lady Young, as I did to the noble Lord, Lord Wigoder. I believe I made the original undertaking on behalf of the Government and I can assure the noble Baroness that the undertaking still applies. I hope that she and other noble Lords who have previously spoken on this subject will be prepared to withdraw the Amendment on the basis of that undertaking. I cannot say whether the Amendment will be tabled on Third Reading or in another place, but we shall stand by the undertaking that I gave at an earlier stage of the Bill.
§ Baroness YOUNG
My Lords, by leave of the House, I should like to thank the noble Lord, Lord Winterbottom, for that assurance. It is of course disappointing not to have the Amendment tabled at this stage, or to have a guarantee that it will be tabled for Third Reading, but we are grateful for the assurance that the Government will redraft the Amendment and table it at another stage. With that assurance, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 [Custodianship orders]:
§ 5.51 p.m.
§ Lord HYLTON moved Amendment No. 32:
§ The noble Lord said: My Lords, we have now come to the part of the Bill dealing with custody, and this is the first of several Amendments concerned with private fostering. I should like to submit—partly because this is not a matter 1145 which was discussed at Second Reading— that we are faced with a considerable problem in regard to this question of privately fostered children. I do not think the Government, or anyone, can deny that the problem exists, or can simply wish it away. We have to face the fact that these children are at risk of being deprived, not only emotionally but also financially, and we also have to face the fact that out of private fostering there will arise quite a number of "tug of love" cases. Professor Holman has shown in his research that some 90 per cent. of the privately fostered children are placed at under five years of age. That in itself is a serious matter. It is much more serious when we realise that no official inquiries at all are carried out before placement, and that there is very little subsequent visiting. We also have to bear in mind that local authorities are not able to arrange fostering without taking children into care, and in order to take them into care certain very strict conditions must be met.
§ So that is the problem with which we are faced, and I suggest that the solutions lie largely outside the scope of this Bill, in, for example, the field of housing, in the provision of much better day care than we have now, in the implementation of the Finer Committee's proposals for income and, above all, in the proper visiting of privately fostered children. In my view, this visiting should be at least as frequent as that given to children fostered by means of local authority arrangements.
Turning now to the Amendment itself, I withdrew an identical Amendment at Committee stage on receiving from the noble Lord, Lord Wells-Pestell, his standard assurance of consideration. The noble Lord said:
We often see things that we can perhaps do something about".—[Official Report, 17 /2/75; col. 71.]
§ Since then I have heard no more from him. The purpose of this Amendment, as I have said before, is slightly to strengthen the rights and, more important, to allay the fears of natural parents who have placed, or will place, a child privately with foster parents. It will prevent the situation where unsatisfactory foster parents can, via private fostering, obtain an emotional hold over children which 1146 can then be used as a lever to obtain custody.
In resisting my previous Amendment, the noble Lord, Lord Wells-Pestell, said that the Government had some sympathy with the aim but did not share my anxiety. He went on to say that the Houghton Committee had considered these matters at length. In fact, fostering came only marginally within the terms of reference of the Houghton Committee and I believe that paragraph 106 of their Report supports my case rather than that of the Government. What, however, is of greater signficance is that the Houghton Committee had virtually no evidence at all before it on private fostering. The Committee reported in 1970 and the major evidence provided by Professor Holman's research was not available until 1973. The noble Lord, Lord Wells-Pestell, further relied on Section 1 of the Guardianship of Minors Act 1971, but I am concerned with the situation before any case comes to court, before time limits have been reached, when, for example, natural parents remove their child or place it elsewhere because they are worried about future custody and want at all costs to maintain their link with their child. The noble Lord gave no answer on this point during the Committee stage. He said:
One cannot stop up every hole".
§ I believe that this particular hole can and should be stopped up. I beg to move.
§ Lord WELLS-PESTELL
My Lords, I do not think I can add very much to what I said at the Committee stage. I am sorry if the noble Lord feels that I have been discourteous in not communicating with him. I said that we would look at this matter again and we looked at it very carefully, but I am bound to say—and noble Lords are entitled to think otherwise—that there is no necessity for this Amendment. I concede that this is a matter of opinion. Where we could do something about it, or where we thought we could make some kind of recommendation, we have done so and I myself have written a large number of letters to noble Lords on other matters that have arisen during the Committee stage. But having looked again at this Amendment—and I know from what he has just said that the noble Lord does 1147 not accept the Houghton Committee's findings on this—and having considered it we felt that it is in some measure contrary to what the Houghton Committee has said.
When the noble Lord moved his Amendment on the third day of the Committee stage, on 17th February, he said that his real purpose was:… very slightly to strengthen the rights and to allay the fears of parents who have placed or will place a child privately with foster parents."—[Official Report; 17/2/75, col. 66).We are not so sure that this in any way strengthens the rights. The noble Lord thought it likely that if the Bill were passed as at present drafted some foster parents would apply for a custodianship order straight away "in order to satisfy their own emotional needs", as he put it rather than consider the long-term interest of the child. This is a point of view. I do not know what evidence the noble Lord has for thinking that this is likely to happen. The noble Lord went on to say that the result would be to alarm the natural parents, and induce them to remove their child to another foster home—a child care practice which the noble Lord, Lord Hylton, regarded as "disastrous". If this were so, obviously it would be undesirable.
I do not want to repeat what I said on the last occasion. If one says that the Government fully appreciate the concern which lies behind the Amendment, that is true, but we feel there is no necessity to do anything about it. The dangers envisaged by the noble Lord led the Government to provide in Clause 33(3) that where a person other than a relative or a step-parent wishes to apply for a custodianship order, he must first, unless the child has had his home with him for at least three years, obtain the consent of a person having legal custody of the child, normally the parent. However, where the child has had his home with foster parents for more than three years, the Government remain of the view that the natural parents ought no longer to be able to veto the application by refusing their consent.
On the question of the natural parents being led to remove their children precipitately from foster parents, the Government agree that it would be most 1148 unfortunate if the provisions of the Bill were to have this effect. We consider that this is unlikely to arise, because the parents will, effectively, be able to veto applications by foster parents with whom a child has had his home for less than three years. Where a child has had his home with foster parents for more than three years, Clause 37(1) will apply, making it an offence for the natural parents to remove the child from the foster parents' custody except with the leave of the court, or in certain other circumstances.
I would ask the noble Lord, Lord Hylton, to look at this in the light of what I have said, and I know he will. But with great respect, it is not just that one wants to resist an Amendment because it is an Amendment. We want to do the right thing, but we feel that the situation is covered. I can only repeat what I said before, that we do not share the anxieties and fears of the noble Lord, Lord Hylton. Our decision is based on a good deal of consultation with various people and bodies. I am not suggesting for a moment that the noble Lord has not taken advice on this Amendment but we should have thought that it was quite unnecessary.
§ Lord HYLTON
My Lords, if I may speak again with the leave of the House, I am sorry that the Government cannot be more forthcoming. I do not think the noble Lord, Lord Wells-Pestell, has told us much more than he was able to tell us in Committee stage, and I should like to press this Amendment to see how your Lordships feel about it.
§ Baroness YOUNG
My Lords, before the noble Lord, Lord Hylton, presses his Amendment, I have been very concerned about the time limit imposed by this Bill. I said as much on Second Reading and in Committee. We have all felt very concerned about it. I feel very concerned, too, about the point raised by the noble Lord with regard to private foster children. The noble Lord has other Amendments on this matter on the Marshalled List. We all appreciate his sincerity and his concern for private fosterings.
I have thought a great deal about private fostering, and wonder whether it is wise at this stage, not simply for the reasons given by the noble Lord, Lord 1149 Wells-Pestell, but for quite practical reasons, to press this Amendment on private fostering, because it will involve an extension of service under this Bill. I should like to make it clear that I am not at all against this extension of service. In principle, this is something we ought to look at. It is only fair to say to the House that I feel it would be illogical on my part to say that I am very sceptical as to whether the Government have provided enough money to make the Bill work as it stands, and then to ask them to do something else as well. I do not think that would be something which I could square with my conscience. Although I think that the noble Lord, Lord Hylton, has raised a very real point, I should tell the House that I would not be prepared to support him in the Lobbies in this matter.
§ On Question, Amendment negatived.
§ 6.6 p.m.
§ Lord BYERS moved Amendment No. 33:
Page 27, line 19, at end insert—
("(10) For the avoidance of doubt, it is hereby declared that the provisions of section 1 of the Guardianship of Minors Act 1971 apply to applications made under this Part of this Act.")
The noble Lord said: My Lords, the position is that under Part II of the Bill, which relates to custodianship, there is at the moment no explicit reference to the standards by which applications are to be judged. It is clearly the intention of the Government, and it has been said many times to be the intention, that the custodianship section is covered by Section 1 of the Guardianship of Minors Act 1971, which provides that
Where in any proceedings … the custody or upbringing of a minor… is in question, the court … shall regard the welfare of the minor as the first and paramount consideration …".
§ My Lords, this Amendment seeks to make that clear beyond any shadow of doubt—by a specific reference at the appropriate stage in the Bill—for three reasons: first, because it will be of assistance to the voluntary bodies and local authorities who will refer to this Bill, not to have to refer to a different Statute; secondly, because it is conceivable that some courts may find themselves so preoccupied with the different facts that arise in cases of this nature that they 1150 may overlook the necessity of referring to a different Act of Parliament to see what standard they should adopt; and thirdly, because on Committee stage I ventured to put to your Lordships the possibility that there was what seemed to me to be the plausible but not very attractive argument, which might arise in future, that the Guardianship of Minors Act did not apply unless it was specifically expressed to apply.
§ I can foresee the argument being put forward that although custodianship is very similar to custody, which is a fact in the Guardianship of Minors Act, nevertheless under this Bill custodianship might be said to be a new legal concept and therefore the 1971 Act did not apply. Although I do not think that argument very attractive, the noble and learned Lord, Lord Hailsham of Saint Marylebone, then addressed your Lordships indicating that in his view, it was an argument that might at some future date be put forward with some serious prospects of success. Perhaps that strengthens the need for this Amendment this afternoon. If there is a possibility of some legal technicality in the future which would do this Bill a disservice, it would clearly be desirable that we should obviate that possibility by making the matter clear beyond doubt. In these circumstances, I beg to move this Amendment.
§ Lord SANDYS
My Lords, we should like to support this Amendment. It is an occasion when one would be very well advised to quote my noble and learned friend Lord Hailsham of Saint Marylebone, because his remarks in this regard, addressed to your Lordships on 17th February, have a special relevance. As we pass so rapidly from clause to clause, perhaps it may be for the convenience of your Lordships if I were allowed to quote his remarks on that occasion. He said:The opinion which I expressed on Second Reading, which had been fortified by one circular submission from a very responsible body which I quoted then … that this notion of custodianship is the introduction of a new and fifth wheel to the coach; that the multiplicity of legal conceptions here leads to the darkening of counsel, and not to the simplification of the law which most of us would like to see."—[Official Report, 17/2/75, col. 77.]My noble friend had earlier referred, in the same column 77, to the fact that Her Majesty's Government chose to set 1151 aside no less than 10 recommendations of the Houghton Committee, serially numbered 20 to 29, dealing with guardianship. My noble friend Lady Young and I are particularly glad that the noble Lord, Lord Wigoder, has reminded us of the relevance of the Guardianship of Minors Act 1971 in this regard; some of us, and I include myself in that category, were totally unaware of its application prior to his indication.
Turning to the Guardianship of Minors Act, Clause 1 of that Act was set out previously on the official record and deals with the principle on which questions relating to the custody, upbringing, et cetera, of minors are to be decided; a very important matter in which the noble Baroness, Lady Masham, had a special interest in her earlier Amendment. We wish to support this Amendment for the reasons we have suggested. We further commend it because I think your Lordships will agree that the noble Lord, Lord Wigoder, showed great restraint and circumspection when he moved a very similar Amendment at Committee stage, and he has changed only the last four words of the Amendment now. It appears to us to commend itself, and so we support the Amendment.
§ Lord WELLS-PESTELL
My Lords, it is very difficult to resist the pleas of two sets of terrible twins. I use the word "terrible" with some affection, if I may say so. In view of what the noble Lords, Lord Wigoder and Lord Sandys, have said, perhaps the House will allow me to deal with this very briefly. Frankly, there is no issue of policy between us. The Government intend that the courts, when taking decisions under Part II of the Bill, should regard the welfare of the child as the first and paramount consideration; that is to say, that Section 1 of the Guardianship of Minors Act 1971 shall apply. The only question to be decided, therefore, is whether a "removal of doubt" provision is desirable. I am assured that it is not necessary, because a custodianship order is an order vesting legal custody, and any proceedings in which the custody or upbringing of the child is in question are covered by Section 1 of the 1971 Act. Since it is not necessary, 1152 it has been suggested to me that its inclusion might cast doubt on other applications, on the general principle that if the doubt has to be removed in one situation this might suggest that a doubt might be created in some other situation.
As against this, the noble Lord, Lord Wigoder, contends that there might be some doubt in the minds of voluntary societies and individuals, and also that there might be some attempt to draw what he admitted to be rather far-fetched distinctions; I think I am right in saying that. I am in the hands of the House. We have one noble and learned Lord here this afternoon, and the Government would welcome advice on this point if the noble and learned Lord felt he had any to give. I think I must say that because it is, perhaps, a legal nicety. Whatever the advice may be on the acceptance or otherwise of this Amendment I can say only that the Government are willing to accept it—and having said that I shall sit down—unless any Member of your Lordships' House wants to put a view to the contrary.
§ 6.15 p.m.
§ The Countess of LOUDOUN moved Amendment No. 34:
Page 22, line 19, at end insert—
("(10) In the case of a child who is in the care of a local authority or voluntary agency, and where parental rights are vested in the local authority, no application for custody may be made without the leave of that local authority.
(11) There shall be a right of appeal to a Magistrates' Court against a refusal by a local authority to give leave under subsection (10).
(12) In the case of children in the voluntary care of a local authority or of an approved child care agency, foster parents may not apply for custody if an objection is lodged by a parent.")
§ The noble Countess said: My Lords, this is the same Amendment that I withdrew at Committee stage when the noble Lord, Lord Wells-Pestell, expressed doubt as to the necessity for it. I put it down again because, on reflection, I feel that the Minister's reply, while dealing adequately with the case of children whose legal custody is vested in the local authority, did not satisfactorily answer the more vexed question of children who are in the voluntary care of a local authority.1153
§ It would seem that Clause 33(3)(c) gives the right to apply for a custodianship order to any person with whom the child has had his home for three years, regardless of whether the child was placed with that person by his own parents or by a local authority who had previously received him into care under Section 1 of the Children Act 1948. The implications of this are considerable. In good faith a parent could ask a local authority to receive the child into care on a voluntary basis under Section 1 of the Children Act 1948; the social worker may decide that the best placement for the child is with approved foster parents. After three years those foster parents without necessarily seeking the previous approval of the local authority could apply directly to a court for a custodianship order. Clearly, this would seriously undermine the relationship of trust between parent and social worker which is essential to successful working with children who need to be received into care for a greater or lesser period with full parental involvement.
§ Secondly, few social workers will place children in foster homes in future, if parents show their willingness to be involved, for fear of foster parents unilaterally seeking custodianship after three years, or adoption after five. I believe that new tug-of-love cases will be created by Clause 33(3)(c), in that parents and/or social workers will remove children from foster parents before the three year period is up in order to ensure that no unilateral application for custodianship is made. Only one body can effectively exercise responsibility for a child in care. That body must be the local authority in whose care the child is placed or committed. Only in these circumstances will people know where they stand, will it be possible to make long-term plans and can there be proper accountability. It is, therefore, essential that the consent of the local authority concerned is obtained before any application for custody is made for a child which is committed into care, or the consent of the parent of the child obtained if the child is in care voluntarily. These three subsections will go some way towards allaying anxiety on this point. I beg to move.
§ Lord WELLS-PESTELL
My Lords, as the noble Countess has said, this 1154 Amendment is drafted in the same terms as Amendment No. 41 which she moved on the third day of the Committee stage. In Committee, the noble Countess said, and she said again today, that the object of the Amendment was to prevent a situation arising in which the essential trust between parent and social worker was seriously undermined. The noble Baroness suggested that this might happen because Clause 33(3)(c) would enable relatives and foster parents to apply for a custodianship order in the absence of parental consent, a development which would not have been envisaged by the parents when they originally placed their child in care. The parents might thereby be induced to remove the child from his foster home before three years had passed in an effort to forestall any possible application not requiring parental consent. If I remember rightly, the noble Baroness, Lady Young, did not speak on that occasion, but I believe that she moved an Amendment with a similar purpose and raised much the same points as the noble Countess, Lady Loudoun. I undertook to write to the noble Baroness, Lady Young, about the possibility that the provisions of Part 2 of the Bill might encourage parents to remove their children precipitately from foster homes, and I did so. I may well have been remiss in not sending a copy of that letter to the noble Countess, Lady Loudoun. If I did not, I apologise, because obviously I should have done so. and perhaps it would have been helpful to her.
Where the child has had its home with foster parents for less than three years, the position of the natural parents is, in the Government's view, adequately safeguarded because the effect of Clause 33(3)(b) is to require a foster parent wishing to apply for a custodianship order, first to obtain the consent of a person having legal custody, normally a parent, but in the case where the local authority have parental rights, whether by a resolution under Section 2 of the Children's Act 1948, or otherwise, that authority. Where, however, the child has been with foster parents for a number of years (and this is set out at Clause 33(3)(c), but is capable of adjustment by Affirmative Order by virtue of Clause 33(7) the Government share the Houghton Committee's view, as expressed in Recommendation 35 of its 1155 Report, that the parents ought not to be able to veto the application.
The Government appreciate the concern which lies behind the Amendment. I know that I have said that on a number of occasions, but we do. We have looked carefully at all these matters since they were before your Lordships' House in Committee. We have spent a good deal of time, including weekends, studying these matters, but we believe the provisions of Clause 33(3)(c) if passed will not have the unfortunate consequences feared by movers of the Amendment because of the safeguards contained, first, in Section 1 of the Guardianship of Minors Act 1971, and, secondly, in Clause 36 of the Bill. These safeguards will ensure that the courts are in full possession of all the facts of the case, including the facts concerning the parents' wishes, and that they will exercise their powers with the child's welfare as their first and paramount consideration.
As regards the risk of precipitate removal by the parents, Clause 50 of the Bill will make it an offence, if a child is in the care of a local authority, for the parents to remove it from foster parents without the authority's consent, unless they have given the local authority at least 28 days' notice of their intention to do so. During this time the local authority could consider whether any action on their part was necessary—and by that I mean by assuming parental rights. Although we have given the matter great consideration, I recognise that noble Lords on the Opposition Front Bench have also spent many weeks on this and other matters. I do not claim that we are the only people who have been doing any thinking—let me make that clear—but our task would have been much easier if noble Lords and the noble Baroness on the Front Bench opposite had not been doing so much thinking! But of course we are grateful that they have done so. However, in reply to the noble Countess, we feel that the matter is already covered.
§ Baroness YOUNG
My Lords, before the noble Countess withdraws her Amendment, if she is so minded, I wish to thank the noble Lord, Lord Wells-Pestell, for the letter which he sent me setting out this point. I have re-read the report of the debate at Committee stage on this matter, and it seemed to 1156 me that there was one possibility that has not been covered. I appreciate that before a custody order is made under Clause 33, the person having the legal custody of the child must be consulted and that this will either be the parent or the local authority, where the local authority has Section 2 rights. But if we take the case of a child in care of a local authority, when the local authority is without Section 2 rights but perhaps has control under Section 1 of the 1948 Act, and the child is placed with foster parents and lives with them for three years and the foster parents decide to apply for a custody order, as I understand it one of the objects of the noble Countess's Amendment would be that the local authority would also be consulted before a custody order is made. As I understand the noble Lord, Lord Wells-Pestell, the parent would be consulted as having legal custody of the child, but of course there must have been a reason why the child was in the care of the local authority in the first place, even if the local authority did not have parental rights on it. Would he not think that it would be desirable for the local authority to be informed, at any rate, that the foster parents were seeking custody of the child as well as the fact that the parent, having legal custody of the child, should be informed also?
If I may illustrate this point further, one of the examples that I was concerned about over the question of time limits, was the case of the mentally ill mother who becomes ill, and the child, through no fault of the mother, comes into the care of the local authority. Because of good social work practice, the local authority does not put the child into a children's home but finds good foster parents. Suppose the mother is mentally ill for three years, or off and on for three years, and shows no signs of getting better, perhaps the foster parents, who by this time might have become attached to the child, if it was a small one, might seek a custody order. The natural mother and father would still have legal custody, but they might not be in a fit state to make a decision about it. Surely, in those circumstances, the local authority in whose care the child is (although I entirely accept that they have not Section 2 rights on it) ought to be consulted. I appreciate that we must read this against 1157 the background of the Amendment moved by the: noble Lord, Lord Wigoder, and accepted by the Government, that the interests of the child should be the paramount, and first, consideration. I have just looked at Clause 1 of the Guardianship of Minors Act, which makes the same point. Therefore one would assume that this situation would be so. But yet again I wonder whether this does not represent a loophole and that in these circumstances the local authority ought to be consulted before a decision is made.
§ Lord WELLS-PESTELL
My Lords, with the leave of the House, I do not think that what I am about to say will please or satisfy the noble Baroness, Lady Young, because she has expressed her concern on this matter before. The question of who should be notified of the proceedings will be done by rules. In point of fact, the local authority will be notified. That will be incorporated in rules. I know how the noble Baroness feels about these rules and that they will be long and involved. I think that this may well be, but one must bear in mind that they will be drawn up by a very competent body. I believe that the Chairman of the Rules Committee is the Lord Chief Justice. I think that I am right in saying that, and the other members of the Committee are very competent people. So, if we do not seem unduly perturbed at times by the need for Regulations and so on, it is because they will be in the hands of a very experienced body which will bring a great deal of expertise to the matter. The answer is, Yes, the local authority will be consulted but the actual procedure will be laid down by rules.
§ Baroness BACON
My Lords, I listened carefully to what the noble Baroness, Lady Young, had to say. She has her name down to the Amendment, but, so far as I could make out, she was supporting the proposal to insert a subsection (10) although she was speaking against subsection (12). Whereas the noble Countess, Lady Loudoun, was seeking by means of subsection (12) to protect the rights of the parents and to see that it was they who made the decision, I rather gather from the speech of the noble Baroness, Lady Young, that she was seeking to ensure that, in certain circumstances, it should not be the decision of the parents which should be the deciding 1158 factor, but that of the local authority, even though the child was in voluntary care. I just could not follow the noble Baroness on that point. I did at first think the Amendment was necessary but, having listened to my noble friend Lord Wells-Pestell, I can see that the point is covered and that this is probably unnecessary. However, as I said, I do not quite follow the argument of the noble Baroness, Lady Young, unless she is supporting only half of the Amendment.
§ Baroness YOUNG
My Lords, by leave of the House, could I say that a slight complication has arisen because, when I discussed the Amendment with the noble Countess, Lady Loudoun, I had not received the letter from the noble Lord, Lord Wells-Pestell. In the intervening time, one of the points of dispute has been cleared up. I am sorry that the noble Countess, Lady Loudoun, did not have a copy of the letter, but the noble Lord, Lord Wells-Pestell, has explained this. I was trying to make it clear that I was glad that this point, at any rate, had been cleared up to my satisfaction, but that I did not feel that all the points raised by the Amendment had been met —and, indeed, I raised one myself, on quite a practical point. I am very glad that the noble Lord, Lord Wells-Pestell, has said that Rules will provide for this case, which the Bill does not make clear and which I regard as being a loophole. However, the noble Lord has not commented on subsection (11) of the Amendment and, perhaps, he would like to speak to that as well.
§ Lord BYERS
My Lords, we are tending to turn this Report stage into a Committee stage, if I may say so with the indulgence of your Lordships' House. If every Member asks for the leave of the House to say something else and the Minister is expected to reply, we are not having a proper Report stage according to the Rules of your Lordships' House.
§ On Question, Amendment negatived.
§ Clause 35 [Revocation and variation of orders]:
§ 6.37 p.m.
§ Lord WIGODER moved Amendment No. 34A:
Page 23, line 39, at end insert:
("(7) Where an application is made under subsection (l)(a) or (b) the Court shall give
notice to the local authority in whose area the child resides, within the seven days following the receipt of the application.
(8) On receipt of a notice given by the Court under subsection (7) the local authority shall investigate the matter and submit to the Court a report of their investigations.").
§ The noble Lord said: My Lords, this Amendment has been designed to plug a gap. Our anxiety is that where a custodianship order is revoked under Clause 35, it may be revoked for a variety of reasons. For example, it may be revoked because of the death, the emigration or the break-up of the marriage of the custodian. In such a situation, the full legal rights over the child may revert to the natural parents, who may by that time—it may be a question of a lapse of some months or years—be in a situation where they are either unable or unwilling to exercise proper care or control over the child. Therefore, there appears to be a danger that the child might be left in a vacuum with nobody looking after it or supervising its welfare.
§ The purpose of the Amendment is to provide that, where there is an application for revocation of a custodianship order, the local authority shall be made a party to the application and shall submit a report, so that there will be the confident knowledge that the local authority will, if necessary, be able to take appropriate steps to safeguard the welfare of the child once the custodianship order is revoked.
I have no doubt that the wording of the Amendment is entirely unexceptionable because it follows the wording of the draftsman in Clause 36 subsections (1) and (2), where it is provided that on applications for a custodianship order the local authority shall similarly be made a party. The noble Lord, Lord Wells-Pestell, will remember that this matter was discussed on Committee. He indicated, to quote his words, that:
We were looking at this position at the present moment because it seems to us … that there is a real point here … If the noble Lord will allow us to continue looking at this point, it may well be that we shall come up with something similar to his requirement."—[Official Report, 17th February 1975, col. 95.]
§ I should be grateful for an indication from the noble Lord, Lord Wells-Pestell, whether it is still the view of the Government that there is a real point here and, 1160 if so, how it can best be dealt with. I beg to move.
§ Lord WELLS-PESTELL
My Lords, the noble and learned Lord is perfectly right in saying that I undertook to look at the matter and also that I thought that this was a matter which we needed to look at. We have done so and we have come to the conclusion—rightly or wrongly—that there is no need for the matter to be amended. I would say that the Amendment ought to be resisted for the reasons which I gave earlier on, though I undertook to look at the matter and though, as I have said, we have done so. The Government agree that the courts need to be able to obtain relevant information about applications for revocation of a custodianship order for which purpose they need to be able to call for reports. It is proposed to achieve this by an Amendment providing for Section 6 of the Guardianship Act 1973 to apply to an application under Clause 35 of the present Bill in the same way as it applies to applications under Section 9 of the Guardianship of Minors Act 1971.
The form of the necessary Amendment is still under discussion with Parliamentary Counsel, but it is hoped to table an Amendment later in the Report stage or, if that is impossible, on Third Reading. However, whether it will meet what the noble and learned Lord has in mind, I cannot say at this stage. Section 6 of the Guardianship Act 1973 gives a court dealing with an application under Section 9 of the 1971 Act power to call for a report by a local authority or a probation officer on any matter appearing to the court to be relevant to the application. The power is discretionary. I do not know whether I can persuade the noble Lord to wait until our Amendment appears to see whether or not he likes it, and if he does not, then perhaps we can have a word about it before Third Reading.
§ Lord WIGODER
My Lords, I should like both to wait to see the wording of the Amendment, and indeed to reread in Hansard the noble Lord's remarks about the various sections of the various Statutes to which he referred. It appears that the Government are alive to the possible dangers of the situation that might 1161 develop, and in those circumstances I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 36 [Notice of application to be given to local authority]:
§ 6.41 p.m.
Baroness YOUNG moved Amendment No. 35:
Page 24, line 3, after ("resides") insert ("and, if the child is in the care of a local authority or voluntary organisation, to the authority or voluntary organisation in whose care the child is ").
§ The noble Baroness said: My Lords, I hope that this is an Amendment which the Government will accept. I will not speak at length on the subject because my noble friends and I tabled it in Committee and at that stage the Government said they were prepared to consider it. I have put it down on Report because there was no Government Amendment to meet the point with which the Amendment is concerned. The point is, briefly, that in the case of a custodianship order being made, whereas the Bill proposes, and rightly so, that the local authority should be informed, the Amendment says that the voluntary organisation in whose care the child could well be should also be informed. I beg to move.
§ Lord WELLS-PESTELL
My Lords, the noble Baroness, Lady Young, said in Committee that her purpose was simply to ensure that if local authorities were to receive notice of an application for a custodianship order, as they would under Clause 36 of the Bill, so too ought any voluntary organisation in whose care the child was. We agree with this, but as I think I explained on a previous occasion —and if I did not, perhaps I may be permitted to do so now—we feel that this could be better achieved by use of the rule-making powers; and I am sure that that will become a dirty phrase before this Bill is through. Clause 36, at which the Amendment aims, has the rather different purpose of providing machinery by which an application for a custodian-ship order can be investigated by a local authority and reported on to the court, and therefore the Amendment would not, we suggest, be satisfactory in any case. But apart from this, it is more convenient to group together in the Rules the provisions about notice of applications to 1162 persons and bodies who may wish to intervene so as to reduce the risk of confusion. This is what the Government are proposing to do. I hope therefore that the noble Baroness will feel that this meets her wishes and is adequate in the circumstances.
§ Lord ELTON
My Lords, there is a further assurance or clarification which I think we need. Another effect of the Amendment as drafted would be to ensure that where a child is residing in the area of one authority but is the responsibility of another, this provision shall apply. In what the noble Lord, Lord Wells-Pestell, was saying I did not catch any reference to this, and so I am particularly sensitive because this was the circumstance in which the Maria Colwell case occurred; there were two local authorities concerned, one as it were geographically and the other administratively. It seems that the Amendment as worded would make sure that both local authorities concerned were kept in the picture. It is, of course, possible for the noble Lord to argue—and we shall doubtless accept his argument with the same reservations as we have others in that field—that this can also be achieved by the making of rules, but it would be agreeable if the noble Lord would say that that will be the object when the rules are made.
§ Lord WELLS-PESTELL
My Lords, I understand that they will be notified and that that will also be contained in the rules.
§ Baroness YOUNG
My Lords, as the noble Lord, Lord Wells-Pestell, will appreciate, I am not very happy about leaving this to another set of rules which, of course, we cannot see at this stage. However, I do not feel that this is a matter which we need press to a Division at this stage.
§ Lord WELLS-PESTELL
My Lords, I understand the noble Baroness's view, but I am informed that it is far easier to change things in rules than in an Act. This has been said a number of times during the passage of this Bill. There is some merit in having these matters in regulations and rules because, as I say, it is easier to change them. The noble Baroness need not feel unduly perturbed by that, and I think it is an advantage 1163 rather than a disadvantage to proceed in this way.
§ Amendment, by leave, withdrawn.
§ 6.47 p.m.
§ Lords WELLS-PESTELL moved Amendment No. 36:
§ Page 24, line 11, after first ("the") insert ("wishes and feelings of the child having regard to his age and understanding and all other").
§ The noble Lord said: My Lords, this Amendment would implement a promise I gave in Committee to reconsider the Government's attitude on the principle of Amendment No. 51 which was moved by the noble Baroness, Lady Young, on 17th February. On that occasion there was a consensus among noble Lords taking part in the debate that if it was relevant on a decision relating to adoption under Clause 2 to ascertain the wishes and feelings of the child and to give due consideration to them, then it should be equally relevant on an application for a custodianship order. The effect of the Amendment would be to include the child's wishes and feelings among the matters relevant to the operation of Section 1 of the Guardianship of Minors Act, 1971, which a local authority which receives notice of an application for a custodianship order is required under Clause 36 to investigate. After further consideration the Government had concluded that though Section 1 of the 1971 Act already covers this matter, no harm —possibly a great deal of good—will be done by introducing an express statement in the Bill.
§ I think there is probably nothing between us on this matter other than the fact that we include "and feelings". As noble Lords will know, Section 1 of the 1971 Act deals with the paramountcy test and I hope that, in the circumstances, the Government's Amendment standing in the name of my noble and learned friend will be accepted, and that the noble Baroness, Lady Young, and those who are also associated with this Amendment, will feel that "and feelings" is desirable and therefore that it will not be necessary for them to persist with their own. I beg to move.1164
§ Baroness YOUNG
My Lords, speaking for myself and my noble friends on this side, we very much appreciate what the Government have done in this Amendment. It is a better Amendment than the one we put down. It meets the points we made and, so far as I can see, it is in fact exactly in line with the terms of Clause 2 which we wanted to see written into the custody proceedings and which we had not got quite right in our Amendment. I am therefore very glad to welcome this Amendment and to express my appreciation of the Government's action in bringing it forward.
§ Clause 37 [Restriction on removal of child where applicant has provided home for three years]:
§ 6.50 p.m.
§ Lord WELLS-PESTELL moved Amendment No. 38:
§ Page 24, line 24, at end insert ("or on arrest").
§ The noble Lord said: My Lords, this Government Amendment is one of a series of technical Amendments which the Government think it necessary to make to the offence provisions of the Bill. As drafted, Clause 37 failed to protect a person arresting the child under Common Law powers from the offence created by subsection (1). This Amendment I understand cures this defect.
§ Lord ELTON
My Lords, as the noble Lord, Lord Wigoder, started the hare that I intended to hunt in Clause 19, I will hollo it away this time, and ask the noble Lord to make sure that when the matter is raised later we are certain about whom it is proposed to arrest. At the moment there are three people referred to in the clause to whom the word "arrest" might refer.
§ Lord WELLS-PESTELL moved Amendment No. 39:
§ Page 24, line 32, at end insert ("(or the period which, by a previous order under this subsection, was substituted for that priod)").
§ The noble Lord said: My Lords, this is a drafting Amendment to bring subsection (3) of Clause 37 into line with other, similar provisions of the Bill; for example, Clause 33(7). As drafted, the subsection fails to envisage the possibility 1165 that the time limit could be amended on more than one occasion. I beg to move.
§ Clause 38 [Custodianship order on application for adoption or guardianship]:
§ 6.57 p.m.
§ Lord WELLS-PESTELL moved Amendment No. 40A:
Page 25, line 16, after ("shall") insert:
("(a) apply in relation to an application which by virtue of subsection (1) is treated as if made under section 33, as it applies in relation to an application made under section 9 of the Guardianship of Minors Act 1971, and
§ The noble Lord said: My Lords, with your permission I will deal with Amendments Nos. 40A and 41 together. These are drafting Amendments. Clause 48(4) provides for Section 6 of the Guardianship Act 1971, to continue to apply to an application to which subsections (1) or (2) relate, but subsection (1) of Clause 38 relates to applications for adoption to which Section 6 of the 1971 Act does not apply. The Amendments put the matter right. I beg to move.
§ Lord ELTON
My Lords, two small points—they are really pleas—arise here, This is a drafting Amendment, and if one is not a lawyer the drafting is difficult. One is dealing with what I should call the Chinese egg principle: you look at a clause and see in it another clause referring to another Act; and you look at the other Act and you find another clause, and in that clause is a reference to another clause, and that refers to a third Act: and so on, ad infinitum. I do not have an alternative drafting to propose. I realise that the noble Lord cannot give an undertaking on this, but I am voicing a feeling which I believe is common to many of your Lordships who do not have legal training, when I say that if a simpler method were adopted to phrase Bills—and, in particular, Amendments to Amendments—and if a consolidating Bill were introduced at an earlier stage than is customary now, our work would be a good deal easier.
The other point occurred to me as I rose to my feet. The noble Lord also spoke to Amendment No. 41. It occurs to me there that in that Amendment we delete "(1) or" but leave "(2)" in, 1166 and so there will be no precedent "(1)" for the "(2)" to follow, and therefore possibly "or (2)" ought to have come out. I leave the problem with the noble Lord, but it seems to me that there is some sort of sequential break.
§ Lord WELLS-PESTELL
My Lords, with the leave of the House, if I may comment on the deletion of subsection (1), I fully share the noble Lord's concern. We must remember that these Amendments are drafted by Parliamentary draftsmen who, essentially, are lawyers. I have always felt that it has been in the interests of that profession to keep these matters confused, otherwise they would not be challenged! But I take the noble Lord's point, and if there is a way to simplify the matter I should, as a layman, like to do so. One of the difficulties one always faces in Bills is that sometimes they are couched in terms which ordinary people like ourselves cannot understand, but I am sure it is to the advantage of lawyers that they remain so.
§ Amendment moved—
§ Page 25, line 17, leave out (" (1) or ")—(Lord Wells-Pestell.)
§ 7.0 p.m.
§ Lord WELLS-PESTELL moved Amendment No. 42:
§ After Clause 38 insert the following new clause
§ Disputes between joint custodians
.If two persons have a parental right or duty vested in them jointly by a custodianship order or by virtue of section 40(2) but cannot agree on its exercise or performance, either of them may apply to an authorised court, and the court may make such order regarding the exercise of the right of performance of the duty as it thinks fit.
§ The noble Lord said: My Lords, this Amendment deals with disputes between joint custodians, and I wonder whether your Lordships would allow me to speak also to Amendments Nos. 62, 64 and 92A which can be taken together. The effect of these Amendments is to limit the scope of the new procedure provided in Clause 60(4) of the Bill for resolving disputes between people who have a parental right or duty jointly, to cases arising under Part II of the Bill. Clause 60(4) went too 1167 far in that it would have replaced Section 7 of the Guardianship of Minors Act 1971 (which relates to disputes between joint guardians) and would have limited the scope of that provision by imposing on it the new jurisdictional requirements contained in Clause 68(2). The second Amendment therefore deletes Clause 60(4).
§ The first Amendment replaces it by inserting a new clause after Clause 38, which provides that where two people have a parental right or duty jointly vested in them by a custodianship order and they disagree on its exercise or performance, either of them can apply to an authorised court for its direction. The clause applies not only to a case where the custodians are a married couple, and have the child's legal custody jointly, but also to that where a step-parent of the child has obtained a custodianship order and has the legal custody of the child jointly with one of the natural parents. The third Amendment to Clause 68 is designed to enable application to be made under the new clause not only to the court which made the custodianship order but also, if the court is a county court, to any other county court prescribed by rules under Section 102 of the County Courts Act 1959. The same effect can be achieved for magistrates' courts by use of the existing rule-making powers.
§ The fourth Amendment is consequential on the second, in that it restores Section 7 to the Guardianship of Minors Act. The repeal which it also effects of Section 16(2) of the 1971 Act—which provided for appeals from the county court under the 1971 Act to lie to the High Court—is made possible by the provision made in paragraph 23 of Schedule 3 to the Bill for such appeals and the appeals from the county court under the Bill to lie to the court of appeal. This would cover the four Amendments Nos. 42, 62, 64 and 92A, and I hope they are reasonably clear. I beg to move.
§ Lord ELTON
My Lords. I followed the noble Lord, Lord Wells-Pestell, through the labyrinth for a certain distance. However there is a difficulty at the back of my mind on this. I noticed that there is a change in the wording. Clause 60(4) on page 41, line 15, reads: 1168Where, in relation to a child who is in England or Wales, two or more persons have a parental right or duty jointly …".Whereas the Amendment reads:If two persons have a parental right or duty vested in them jointly"—and then the new words—by a custodianship order or by virtue of Section 40(2) …".This is in the custodianship part of the Bill, whereas Part IV, Further Amendments of Law in England and Wales, presumably refers to all persons with parental rights jointly over a child howsoever they may have acquired those rights.
It seems to me therefore that the purpose of the Amendment is very much wider than it appeared to me the noble Lord suggested, since it restricts it to a class of person with parental rights of a particular kind arising from a particular occasion. It may be possible that the noble Lord made this clear further down the labyrinth than I pursued him; whether this was not a limitation of what one would have thought was almost a natural right of ordinary parents, or parents by right of something other than parenthood, to go to a court when they could not agree on how a child should be brought up. Perhaps when the noble Lord replies to this part of the debate he would be kind enough to make this clear.
§ Lord WELLS-PESTELL
My Lords. I am much obliged to the noble Lord. My understanding of the situation is that the change in wording is to limit the provisions to the custodianship cases, leaving Section 7 of the 1971 Act to deal with other cases. If that is not clear to the noble Lord, I agree that one would need to look this up. If he is not satisfied or wishes to raise other matters and would be good enough to let me know, even by word of mouth, I shall certainly go into them and advise him.
§ Clause 46 [Restriction on removal of child where applicant has provided home for three years]:
§ 7.7 p.m.
§ The noble Lord said: My Lords, this Amendment. I hope, clarifies the circumstances in which a child may be removed legitimately from a home where this would otherwise be debarred under the clause as it stands. This is exactly parallel with Amendments 38 and 39 to Clause 37 as already covered. In Scotland there could be grounds for removal under a variety of enactments including provisions in the Social Work (Scotland) Act of 1968 relating to children in need of removal to a place of safety for their own immediate protection, or where a supervision requirement made by a children's hearing under the Act requires that the child should be placed in a children's home under residential supervision. It is also necessary to cover the situation where a person exercises his right to carry out an arrest without a warrant under the Common Law as in England and Wales. I do not think I can say anything more than that. I beg to move.
§ Lord WELLS-PESTELL moved Amendment No. 44:
§ Page 28, line 44, at end insert ("(or for the period which, by a previous order under this subsection, was substituted for that period)").
§ The noble Lord said: My Lords, this Amendment has the same effect for Scotland as that relating to Clause 37(3). The intention is that, when the period of three years' possession of a child has been modified by order of the Secretary of State, a further order or orders may be made for the same purpose. I beg to move.
§ Clause 50 [Restriction on removal of child from care]:
§ Lord WELLS-PESTELL moved Amendment No. 45:
§ Page 30, line 27, after ("of") insert ("28 days or of").
§ The noble Lord said: My Lords, with your permission, with this Amendment I should like to move Amendment No. 61. The purpose of Amendment No. 45 is to extend the power of the Secretary of State in the proposed Section 1 of the Children Act 1948 introduced by Clause 1170 50 by enabling him by Affirmative Order to vary the period of "not less than 28 days" notice of intention which a parent or guardian would be required to give a local authority before removing from care a child who has been in the local authority's care throughout the preceeding 12 months.
§ As now drafted the clause enables the Secretary of State by Affirmative Order to vary the period of 12 months. The Amendment proposes that this power should be extended to cover the period of "28 days", thus bringing the power of the Secretary of State with regard to this time limit into line with that covering other provisions in the Bill which involve time limits. Clauses 30, 37, 42, 51, and 58 involve time limits. Amendment 61, which is one of the two Amendments now before your Lordships, applies to Scotland. I beg to move.
§ The DEPUTY SPEAKER (Lord Amulree)
My Lords, before calling the next Amendment I should acquaint your Lordships that the figure for the voting, "Not-Content", in the Division earlier this afternoon, should have been 43.
§ 7.10 p.m.
§ Baroness YOUNG moved Amendment No. 46:
Page 30, line 29, at end insert:
("(3C) Notwithstanding that children in the care of voluntary organisations arc not in care under section 1 of this Act. which relates only to children in the care of local authorities, the parent or guardian of the child in the care of a voluntary organisation must give not less than 28 days notice to the voluntary organisation of his intention to withdraw his child from their care."")
§ The noble Baroness said: My Lords, my noble friends and I have put this Amendment down again for two reasons. The first is that the noble Lord, Lord Winterbottom, who replied to it at Committee stage said that he would look at this matter. As we did not see an Amendment down for the Report stage, we put our Amendment down again. The principal reason why we put down this Amendment in Committee was the belief that as Clause 51 is concerned with extending the reasons why a local authority can assume parental rights over a child, in those cases in which a child was in the care of a voluntary society and the local authority was not prepared to 1171 assume parental rights, the voluntary society should be able to do so. It is a fact that whereas some local authorities interpret Section 2 of the 1948 Act generously, others do not. The consequence is that the practice in different parts of the country varies.
§ In some places where the child is in the care of a voluntary society, it may be that the local authority would assume parental rights over the child if the child had been in the care of the voluntary society for three years. But it cannot be said that this would be so in every case; at least I do not think that is what the clause means. Therefore, the first purpose of putting down this Amendment is to clarify this point: that the local authority should be able to apply for parental rights.
§ My Lords, I must apologise. I have misread this Amendment. I should have been speaking to Amendment No. 46 which applies to the 28 days order. I was reading Amendment No. 49. I hope very much that the Government will accept Amendment No. 46, which is designed simply to require parents to give 28 days' notice to a voluntary society if they wish to withdraw a child. I believe the Government have said that they will accept this Amendment. That is all I need to say and without further taking up the time of the House, I beg to move.
§ Lord WELLS-PESTELL
My Lords, I have great sympathy with the noble Baroness. Lady Young. I was doing exactly the same thing, as she will recall, last week. It becomes rather difficult sometimes to keep pace. I wish in some respects that I could go some way to meet the noble Baroness; but we have looked at this Amendment very carefully and it is the same as the one we discussed in Committee on 17th February. Since then, and I know the noble Baroness will take my word for it, we have given a good deal of consideration to this and to a number of others. In fact, we seem to have been doing nothing but considering not only the Children Bill but the kind of thing which stems from the discussions we have had since it was introduced.
The effect of this Amendment would be to place the same restriction on removal of a child from the care of a voluntary organisation as will apply under 1172 the proposed new subsection (3A)(b) of Section 1 of the Children Act 1948 where a child is in the care of a local authority. But the Amendment would apply this restriction without the "time limit" in subsection (3A)(b), that the child must have been in the care of the local authority throughout the preceding 12 months.
I regret that the Government still feel unable to accept this Amendment, on the grounds that, unlike local authorities, voluntary organisations are not subject to statutory control over the circumstances in which they may receive children into care, and that it would therefore be inappropriate to introduce a statutory restriction governing removal. Voluntary organisations are at liberty to specify whatever conditions they think fit when agreeing to accept a child into their care; and probably no one knows this more than the noble Baroness. They can therefore at present stipulate, where they consider it appropriate to do so, that parents should give not less than 28 days' notice of removal of the child. I appreciate of course that, in the absence of a statutory power, they would, in practice, be unable to enforce this condition. As I have said, the restriction proposed by the noble Baroness in respect of children in the care of voluntary organisations would bite immediately and is thus much more restrictive than that which the Bill proposes to place on the removal of children in the care of local authorities.
The conditions governing the circumstances in which a child may be received into the care of a local authority are laid down in the Statute (Section 1 of the Children Act 1948) and, unlike voluntary organisations, local authorities are not free to impose on parents conditions which are not covered by the Statute. It is only by amending the Statute that the parents of a child can be required to give the local authority notice of intention to withdraw the child as envisaged in Clause 50.
As I have explained, voluntary organisations are free to make the same conditions if they wish. The only advantage to be gained from placing the existing non-statutory relationship between voluntary organisations and parents on a statutory footing, as envisaged by the Amendment, would be to place parents under the threat that if they removed 1173 their child from care without giving the required period of notice, the voluntary organisations could invoke the penalties set out. in Section 3(8) of the Children Act 1948; that is, on summary conviction a fine not exceeding £20 or imprisonment for up to two months or both. But these penalties could be imposed only by a court of law and it would therefore be necessary for the voluntary organisation to institute proceedings against the parents; and, even then, only after the child had been removed from care. The Amendment would therefore fail to achieve its primary purpose which. I gather, is to protect the child. Furthermore, the threat of proceedings in the courts might be a factor which would deter other parents from placing their child in the voluntary organisation's care.
I hope that in the light of this explanation the noble Baroness will be willing to seek leave to withdraw it; and that those voluntarily organisations that have made representations to the noble Baroness on this matter will consider again whether statutory controls of these kinds are really what they want—I should have thought not—or will in practice hamper their activities without improving the protection we all desire for the child that is in need of it.
§ Lord ELTON
My Lords, this is a somewhat difficult field; but I am not certain that those on this side of the House are entirely satisfied with what the noble Lord has said—although we accept, of course, that it was said with good intentions. In part, he said that parents might be deterred from placing children with voluntary associations on the ground (hat they might, if they wished to take the child back, find themselves liable to legal proceedings had they not given sufficient notice. I do not see that this puts them at a disadvantage in putting their child into a voluntary organisation as against putting it into care in a local authority organisation, because I should have thought that exactly the same situation appertained.
Of course, one's whole approach to the noble Lord's treatment of this question must be conditioned by the Government's attitude, not yet absolutely manifest, to the question of inspection and approval and whether that is going to march pari passu in voluntary and in 1174 local authority organisations, and the extent to which the Minister will oversee the rules. The noble Lord said that the voluntary organisations were at liberty to make a rule, or a condition of accepting a child, that a minimum of 28 days' notice should be given before the child was claimed back. Would the Minister give his approval to a voluntary organisation which did not make such provision? Then again, if he did, is he implying that once a voluntary organisation had made such a provision, and the Minister had given his authorisation to its continuance, if parents none the less in a fortnight instead of a month turned up to ask for little Willie back—and indeed took little Willie from his pram in the garden at the back of the voluntary organisation's building, as one sometimes hears happens—they would not be subject to prosecution in the courts?
I find a certain conflict in the arguments advanced which seem to cancel each other out. I trust that my noble friend Lady Young will in her reply to this debate—as she is moving the Amendment she is entitled to speak twice—be able to bring these arguments together. But, as I see them at the moment, the case against this Amendment has not been fully made out.
§ 7.22 p.m.
§ Baroness YOUNG
My Lords, I have re-read carefully what the noble Lord, Lord Winterbottom, said on this matter at the Committee stage, and have listened carefully to what the noble Lord, Lord Wells-Pestell, has said on Report. I would not have put down this Amendment at all had I not had strong representations from the voluntary societies acting in unity in this connection. They all wish to have this same principle applied to children in their care, as applies to children in the care of a local authority. I think the reason for it is that the type of child now in the care of a voluntary organisation may be very different from the child in care, say, when Dr. Barnado's Home was founded. Clearly, a great many children would now go into the care of a local authority, and rightly so. What I think voluntary associations are concerned about is the feckless parent, who has left a child in the care of a voluntary society since babyhood. The child has not been adopted; it has not come under the custody provisions: it is 1175 simply in the care of the voluntary society perhaps until it is old enough to earn money. Then the parent arrives at the front door and says, "I will take Willie home now, this afternoon", and is allowed to do so.
This is obviously an undersirable practice. There may be no reason at all why the child should not go back to his natural parents, because we all agree that the natural home is the right place for a child to be. But any child needs some kind of preparation and warning of this, and quite rightly, in my opinion, the Government have said in Clause 50(3)(a) that a parent must give to a local authority 28 days' notice of intention to withdraw the child. This is obviously to enable the local authority to prepare the child for his return home and to make sure that the circumstances at home are
§ Resolved in the affirmative, and Amendment agreed to accordingly.1176
§ suitable for him to go to. We are entirely in agreement with this. What I still do not fully understand is why this cannot apply to the voluntary society if the voluntary societies so wish it. It may well be that, as a result of asking for this, the voluntary societies will find themselves subject to further statutory control. But I am not sure that that, in itself, is a reason for objecting to this Amendment, which seems to me to be entirely in line with good child care practice and in the best interests of the child. I therefore feel as matters stand that I cannot withdraw this Amendment and wish to press it to a Division.
§ 7.26 p.m.
§ On Question, Whether the said Amendment (No. 46) shall be agreed to?
§ Their Lordships divided Contents, 42; Not-Contents, 26.1175
|Amulree, L.||Gowrie, E.||Monck, V.|
|Auckland, L.||Gridley, L.||Newall, L.|
|Bridgeman, V.||Hanworth, V.||Orr-Ewing, L.|
|Campbell of Croy, L.||Harvey of Tasburgh, L.||Redesdale, L.|
|Cathcart, E.||Hawke, L.||Sandys, L.|
|Colville of Culross, V.||Henley, L.||Seear, B.|
|Cowley, E.||Hornsby-Smith, B.||Strange, L.|
|de Clifford, L.||Hunt of Fawley, L.||Swinton, E.|
|Denbigh, E.||Hylton, L.||Vickers, B.|
|Denham, L. [Teller.]||Killearn, L.||Vivian, L.|
|Eccles, V.||Kinnoull, E.||Wade, L.|
|Elliot of Harwood, B.||Lyell, L.||Ward of North Tyneside, B.|
|Elton, L. [Teller.]||Macleod of Borve, B.||Wigoder, L.|
|Ferrers, E.||Masham of Ilton, B.||Young, B.|
|Arwyn, L.||Henderson, L.||Shackleton, L.|
|Bacon. B.||Hoy, L.||Slater, L.|
|Bernstein, L.||Jacques, L. [Teller.]||Stedman, B.|
|Beswick, L.||Lee of Newton, L.||Strabolgi, L.|
|Brockway, L.||Maelor, L.||Taylor of Mansfield, L.|
|Castle, L.||Melchett. L. [Teller.]||Wells-Pestell, L.|
|Champion, L.||Milner of Leeds, L.||White, B.|
|Davies of Leek, L.||Noel-Buxton, L.||Wynne-Jones, L.|
|Harris of Greenwich, L.||Segal, L.|
Moved accordingly and, on Question, Motion agreed to.
§ CALF SUBSIDIES (UNITED KINGDOM) (VARIATION) SCHEME 1975
§ 7.34 p.m.
§ The MINISTER of STATE, DEPARTMENT of INDUSTRY (Lord Beswick) rose to move, That the Draft Calf Subsidies (United Kingdom) (Variation) Scheme 1975, laid before the House on 19th February, be approved. The noble Lord said: My Lords, the effect of this 1177 Variation Scheme is to remove the £10 increase in the calf subsidy granted last July as a temporary measure. I ought also to say that the Joint Committee on Statutory Instruments have considered the draft but do not wish to draw the attention of the House to it. It has been passed without comment.
§ May I briefly remind your Lordships of the circumstances in which the £10 was added. The increase was agreed by the EEC Council of Ministers in March of last year. At that time it was decided that the United Kingdom guide price for beef should be increased to a lesser extent than in other member States, and that the United Kingdom need not apply intervention. The increase in the calf subsidy was designed to compensate United Kingdom producers for the effect of these decisions. In the light of the new arrangements for beef which I outlined in this House on 17th February, the Government have reviewed the need to maintain the £10 increase in the calf subsidy. As from today, the variable premium is in operation, and producers will now be assured of average returns of between £22 and £23 per live cwt. for finished animals, and these are bound to be reflected in better prices for calves and store animals. Indeed, we have already seen a substantial improvement in these prices following the measures taken by the Government last November to give beef producers assured returns somewhat lower than those that will now apply. We are therefore satisfied that the special circumstances which existed when the additional calf subsidy was introduced no longer apply. Accordingly, this Variation Scheme provides for the removal of the £10 and for a return to the former levels of calf subsidy.
§ I should stress that it is only calves born after this Scheme comes into operation which will be affected. All calves born up to the day when the Scheme comes into operation will, provided they meet the conditions of eligibility, continue to enjoy the higher rates. For carcases—Stage B—there will be a similar reduction in subsidy rates but the proposed Variation Scheme provides for this to come into effect on 1st April 1976. This will mean that the increased rates will have been payable in respect of Stage A and Stage B for a period of roughly 16 months.1178
§ Finally, three minor amendments are proposed in respect of provisions which have become obsolete or anomalous. The requirement that an eligible carcase at Stage B must be sold is to be deleted. This requirement derives from the old Fatstock Guarantee Scheme but has no parallel in the current beef premium arrangements or when a calf is certified live. Furthermore, it has been found to be unenforceable. Its removal will be generally welcomed and should not lead to any abuse of public funds. An amendment is also proposed to prevent the owner of a brucellosis or tuberculosis reactor or contact obtaining calf subsidy in addition to compensation when he opts to have such an animal slaughtered by the Ministry under animal health regulations. The subsidy potential of the animal is, I am assured, taken into account when compensation is assessed and subsidy ought not to be paid in addition.
§ The final amendment concerns the requirement that in Northern Ireland all calves, including pedigree calves, must be dehorned in order to qualify for subsidy. This has been strongly criticised by the Northern Ireland Breed Societies, particularly since last July when live bulls first became eligible for subsidy. The Department of Agriculture for Northern Ireland have introduced certain exemptions into their own dehorning legislation, and the Government propose to introduce the same exemptions covering pedigree bulls and pedigree females of certain breeds into the Calf Subsidy Scheme. The estimated savings resulting from the removal of the £10 would be £34 million in a full year. Even if all calves were now to receive the lower rate of subsidy, the effect on producers should be more than offset by the firmer prices for calves and improved returns from milk as a result of the measures recently taken by the Government. But as I have explained, the removal of the £10 will be a gradual process, and in 1975–76 the total payment of calf subsidy is expected to drop by less than £4 million. My Lords, I beg to move.
§ Moved, That the Draft Calf Subsidies (United Kingdom) (Variation) Scheme 1975, laid before the House on 19th February, be approved.—(Lord Beswick.)
§ 7.40 p.m.
My Lords, we are grateful to the noble Lord, Lord 1179 Beswick, for having introduced this order and for having explained it. He said that the Committee on Statutory Instruments made no comment upon the order, but I think he will forgive me if I take the opportunity of making a comment upon it, because I do not think he would expect it to go by without any comment.
I am bound to say that up to a point I am sad to see this calf subsidy reduced, but I should explain that I am not one who is greatly in favour of large subsidies. I have always felt that so far as possible the right way for agriculture to proceed is to get the proper returns from the market. But this subsidy must be seen as part of Her Majesty's Government's beef policy, and of course it was increased last year by £10 when the Minister decided to opt out of intervention and, for the first time in 25 years, the floor of the beef market was removed and as a sop to the industry the calf price was increased by £10. The result of that decision by the Minister to opt out of intervention, as we know, was utter disaster; there was complete loss of confidence and there were massive calf slaughterings. The Minister has now had second thoughts and after great pressure he has put back some floor into the market. So off comes the subsidy.
I do not want to refer in detail tonight to the support arrangements agreed for beef, but I think they will prove to be inadequate and not as good as at first sight was anticipated. They give no longterm stability, because the Exchequer liability is so great that guaranteed prices can be announced only four weeks in advance. I rather wonder what has happened to make the Government think, if the increased subsidy was so necessary last year, that it is unnecessary now. The noble Lord must know that there is great uncertainty in the beef industry; there is no money in it. I was talking to somebody the other day who said that last year he sold 350 beef cattle and lost £54 on each animal. The beef breeding herd was down in December as compared with a year ago; the slaughterings of calves are up by 300 per cent. in the year since January 1974. So those figures are not very helpful and they do not show any huge change-round in confidence. We know that hill farmers have suffered disastrously over the last 12 1180 months and the removal of this subsidy will come as another blow to them. But of course 70 per cent. of the beef comes from the dairy industry so the dairy industry will also be affected by this scheme.
Perhaps the Government think that the dairy industry is in a good enough position to be able to withstand it. But is it? There is already a shortage of milk supply and yet the dairy herd is down 5 per cent. in a year, which will only make the position even worse. Although there is a shortage of milk the Government continue to subsidise liquid milk and therefore stimulate the demands for liquid milk. This means that less milk goes into butter and cheese manufacture and there is now a hugh shortage in this area, too. Yet we subsidise butter and cheese and therefore stimulate that demand, and then butter and cheese have to be imported to fulfil the demand which affects our balance of payments. All this comes about because there is a shortage of milk. Yet the award of the Review recently announced appeared to be 5 pence a gallon. Of course in reality the net increase is only 0.8 pence per gallon, because of the increase of 4.2 pence which was for only a short period of time; it was operative from last autumn and is about to come to an end. So the increase in price of 0.8 pence per gallon has to take account of all the inflation and all the increases in cost over the next 12 months.
All this shows a depressed state for the milk industry, from the points of view of production, of anticipated return and of inflation. Yet the reduction of this subsidy will have a material effect on that industry. So my criticism of this scheme is not just that the Government are reducing the subsidy; my criticism is of a far more general nature and is that the Government's general political strategy has been and is such that the areas of agriculture which are affected by this subsidy are so depressed that they are not in a position to withstand yet further diminution of their income.
There is one question which I should like to ask the noble Lord, Lord Beswick. I understand that when the Minister of Agriculture, Fisheries and Food raised the subsidy last year by £10, he merely informed the EEC that he was going to do so. As I understand the position, he is not debarred from using the subsidy 1181 and therefore, presumably, he does not have to get approval for the level at which he intends to operate it. The subsidy is now reduced by £10. Is that because the European Community insisted, as part of the package on beef, that the subsidy should be reduced? I hope not, because if the level of subsidy is a domestic issue over which the Minister has only to in-inform the EEC, I hope that he has not succumbed to pressure from the Community to lower it. If the EEC did not request the subsidy to be lowered as part of the package, I assume that the Minister did it of his own volition and I ask the noble Lord, Lord Beswick, why? What makes the Minister consider that the circumstances have changed so dramatically in the last 12 months that a subsidy which it was then considered essential to introduce is now superfluous and unnecessary?
§ 7.48 p.m.
§ Lord HOY
My Lords, I should like to intervene for one or two minutes on this subject. I am a little surprised at the argument presented by the noble Earl, Lord Ferrers, tonight. In fact, he asked whether the Minister had permission to increase the subsidy by £10, and whether he required permission to lower it. I cannot understand why, if he was allowed to put it up by £10, he would have to go back to the EEC to reduce the subsidy by £10. That seemed to be such a complete non sequitur that I was surprised the noble Earl asked it.
I do not underestimate the question of milk costs. It is all right for people to talk about 0.8 pence per gallon, but I should like to hear from my noble friend what this represents in actual figures, because I remember that when dealing with this subject a penny on a gallon represented millions of pounds. The noble Earl is bound to be aware that we are not dealing with a simple little figure like this; we are dealing with a considerable amount of money which has to be met cither by Government subsidy or by the consumer. The consumer might have to pay it, and I was never carried away with the idea, if we were changing milk prices, that we were making only very small changes. I hesitate to try to recollect, but I believe that at that time a penny was the equivalent of £2½ million to £3 million—not less than that sum. So when we speak about these figures, 1182 we are talking about substantial sums of money.
Overall I am not saying that this is much too much with regard to farming. That is not my argument at all. But to seek to convey, as did the noble Earl tonight, that that sum meant very little is misleading, because it can represent a considerable amount of money. I am not saying that the figure given by my noble friend tonight is a tremendous award for industry, but with a guaranteed price of £22 or £23, it is not all that infinitesimal. Noble Lords opposite are arguing that the Government have to give a fair return, not only to the consumer, but to the producer. All right: if the producer is to get a fair return, it has to be made in two ways; either the Government have to put in a subvention, or the consumer has to pay.
The noble Earl's Party has always argued that at the end of the day the end price must meet the increased cost. The noble Earl would not dispute that. His Party have always argued that the end price has to be met, so if he says that the Government should restrict this, then the end price must be met by the consumer and prices must go up. If the noble Earl is saying this, I would much rather that he would say it explicitly and clearly, so that we can all understand that his Party are saying that the end price must be met by the consumer.
My Lords, in conclusion, I should like to know what the increase in milk price means in the totality of the figure that has to be met at the end of the year. If the noble Earl thinks this return is not good enough for the farmer—and he is entitled to think so—then he ought to get up and say what he thinks, what the alternative ought to be, and where the price ought to be met. Should it be met by the Government, or by the consumer? Unless the noble Earl fares up to that position, he really has no right to come along and say to the Government, "You ought to do something else about price". Unless he is prepared to do that, he ought to say, "I agree from my side of the House that we think the price ought: to go up. It ought not to be met by the Government, but should go up in the retail price to the consumer." Outside these spheres, there is no alternative to this argument. My 1183 Lords, I hope my noble friend will be able to tell me what the increased price of milk will mean to the consumer. I am willing to face up to it. At least let us understand what these prices mean so far as the public is concerned.
§ 7.53 p.m.
§ Lord BESWICK
My Lords, I am very grateful for what my noble friend has said. He is quite right that 5p per gallon on milk is not an insignificant return in total. It will mean something like £146 million more going to the dairy farmer, so that that is not an insignificant amount.
My Lords, I am sure that the noble Lord will agree, though, that it is not 5p more going to the dairy farmer because, in fact 4.2p a gallon is already being received. Starting from now, this addition is only 0.8p.
§ Lord BESWICK
My Lords, this is an addition, and there will be an increase in the quantity on which the increased price will be paid. With respect, I think the noble Earl, Lord Ferrers, is exaggerating the situation left as a result of the improvements we were able to announce recently. Although the figure for slaughterings given by the noble Earl sounds very dramatic, it is a figure which he has compared with an exceptional period, of last year and the year before. If one goes back a few years—and I have the list here—the number of slaughterings is about the same. As for the milk shortage, I gather there is about a 2 per cent. decrease in milk supply at the present time, and this is expected to improve.
If one takes what is happening to store cattle prices since we made recent changes, one can see that confidence is returning and that prices are very considerably up on what they were in November and October of last year. I have here the beef/dairy cross figures. For 18-month old steers they are £131 average for January and £137 average for February, as against £108 and £109 in the autumn of last year. So there has been an improvement. I do not think we should talk ourselves into the feeling that things are as bad as the noble Earl is suggesting.
1184 So far as the situation with the EEC is concerned, the fact is that there was what is known as a Regulation of the Commission, under which we paid the calf subsidy increase, dated 18th April 1974. That was not just a question of telling them; it was a derogation which we were given by them. Very graciously, they enabled us to pay more out of our own kitty to the farmer. This Regulation extended to the 31st December. We had asked that this should be allowed, because we were not going into intervention in the same way as the other continental countries. It was expected that we should be able to bring the variable premiums into effect by the beginning of this year. That was not possible; so we notified the Commission that for this brief period, this interim period, we should maintain the increased calf subsidy. That remains the position until this Order comes into effect.
My Lords, in view of the noble Earl's rather alarmist picture, I would also say again that although the order will come into effect within a matter of days or weeks—I am not absolutely certain which it is—the payment of the subsidy does not immediately end. The noble Earl will remember that I gave the figures in my opening speech. Whereas over a year, if all subsidies were to be abruptly stopped, it would make a difference of some £34 million, it is expected in the year 1975/76 that there will be a reduction of only £4 million. This really does not justify the sort of language or the vigour with which the noble Earl voiced his apprehensions.
May I make one final remark to the noble Earl? If he is going to place all his reliance on the market and make a case for the market, I do not think he should go on to say that we were in error in no applying intervention, that wasteful system. If one is talking about a market, one is talking about a free market in a situation in which the Government are expected to go in and buy at a certain price in order to store the stuff until it is given at a cheaper price to the Russians, or some such thing. That is not my conception of the market. I doubt whether very many farmers would like the free market system. My impression is that most farmers prefer the old deficiency payment system to the intervention system. We are getting somewhat 1185 nearer that, although there is now the floor price which the intervention price will provide. There is a floor and there is also the variable premium. There will be a reasonable return per live cwt. In that situation, it is not unreasonable to go back to the former level of calf subsidy. On that basis, I hope the House will agree to this Order.
§ On Question, Motion agreed to.