HL Deb 07 December 1987 vol 491 cc28-35

4.21 p.m.

Lord Lyell rose to move, That the draft order laid before the House on 19th November be approved.

The noble Lord said: The order gives effect to the recommendations of the report of the Children and Young Persons Review Group on the adoption of Children in Northern Ireland. That report is available in the Printed Paper Office. I found it most interesting.

The order goes on to re-enact those provisions of the Adoption Act (Northern Ireland) 1967 which are unaffected by the recommendations of the review group. The order does not propose a fundamental departure from the present adoption practices. But it advocates a series of legislative changes designed to refine and to streamline existing procedures on an evolutionary basis.

The review group carried out extensive consultation before it published its report in June 1982. I stress that the recommendations have commanded widespread support. They have been fully endorsed by Government and are generally consistent with law and practice in Great Britain.

The order for the first time places a statutory duty on health and social services boards to provide an adoption service. The effect will be to put existing practice on a formal basis as boards, since their inception, have exercised their discretionary power to act as adoption agencies. The changes in the law will accordingly carry no real resource implications. But the order also confirms the position of the Department of Health and Social Services as the registering authority for the voluntary adoption societies. It requires the department to consider the likely, or the present, effectiveness of the service offered by each society and to examine even more rigorously than at present their programmes, their resources and their organisation.

The order also introduces provisions which require registration of adoption societies to he renewed every three years. In the light of this change in registration procedure, I have accepted arguments put forward by the voluntary sector that the requirement to pay a registration fee should be dropped. This will bring Northern Ireland into line with the rest of the United Kingdom where there is no fee for registration as a voluntary adoption society.

Mostly this is enacted in Articles 4, 5 and 6 of the order. The existing practice of third party placements will no longer be possible. All placements of children for adoption will in future have to be arranged through an adoption agency except in a case where the natural parents place a child directly with relatives. Your Lordships will see that most of those provisions are covered in Article 11.

The order continues to make provision for schemes for paying allowances to adoptive parents in very exceptional circumstances and under strictly controlled conditions. The aim of these schemes will he to facilitate the adoption of hard-to-place children, for example those who are known as sibling groups. Your Lordships will understand that when the adoption authorities and indeed the health and social services board believe it necessary that three or four brothers and sisters should change their home for some reason it would be better for all of them to remain together. I must say that the concept was new to me, but it was the explanation I was given. Those noble Lords who are expert and have much experience in this field will I hope agree that that is a reasonable definition.

The first category in the hard-to-place children is sibling groups. Then there are children with mental, physical or indeed multiple handicaps. Corresponding provisions were introduced for the first time in the rest of the United Kingdom in February 1982. That was before the review group issued its report. The vast majority of adoption agencies have devised schemes for payment which are working satisfactorily and have resulted in the adoption of children who might otherwise have remained in statutory care for many years.

One of the most significant developments is the introduction of a system of what we call freeing orders. This system enables consent to adoption to be conclusively obtained or in certain circumstances to he dispensed with at a much earlier stage in the adoption process. Your Lordships will find most of these particular measures in Articles 17 and 18 on pages 15 and 16 of the order. The aim of this particular system is to reduce the strain and confusion felt by parents facing long delays in awaiting the finalisation of adoption proceedings. It is also to ensure that prospective adoptive parents, with the element of uncertainty regarding parental consent removed, can commit themselves wholeheartedly to a child at a time when that commitment is essential.

A freeing order will usually be obtained upon joint application to the court by the adoption agency and the parent or indeed the parents of the child. The effect of this freeing order will be to transfer all parental rights and duties to the adoption agency.

The provision which attracted the greatest degree of comment during the consultation period was that all adopted adults who were at least 18 years old and who wished to trace their origins would have the right of full access to their birth records. Your Lordships will find that in Article 59 of the order. The amount of comment was really not surprising. This issue involves fundamental personal relationships. Indeed the review group itself, although firmly of the view that the principle of access to birth records should be admitted, was divided on the question of timing. Having considered all the representations most carefully, I concluded that such access should be granted in respect of all adoptions, thus avoiding discriminatory legislation which would exclude persons adopted before the date of the order.

The proposal for the adoption order as published for consultation followed the line advocated by the review group that people seeking access to their birth records would be encouraged but not compelled to avail themselves of a counselling service which would be operated by the adoption agencies. I feel it is very important to stress that they are not compelled but only encouraged to do this. The provision attracted criticism from the majority of existing adoption agencies who all argued for some degree of compulsion in the counselling provisions. It has always been recognised that this is a very delicate area which would have to be treated with great sensitivity. I was very impressed with the force of the representations on this topic. At the same time I recognise that this issue was considered in depth by the review group and I accept that many of the arguments were advanced in the report. I believe that they do have validity. We thought carefully about the whole question and have decided on balance that the right kind of natural parents require some additional protection.

In England and Wales, where similar provisions relating to access to birth records were introduced by the Children Act 1975, the law makes it mandatory for all persons adopted before the passing of that Act to attend a counselling session before receiving the information. None of the respondents to the proposal doubted the value and necessity of a counselling service. Although I fully recognise that compulsory counselling carries no guarantee of effective protection for the natural mother and that the use of compulsion is regrettable, I have decided that the benefit outweighs the disadvantages and that the people adopted before the passing of the order should be required to attend a counselling session as a condition of obtaining access to their birth records. Subject to this condition, access will be granted in respect of all adoptions irrespective of whether they were completed before or after the operative date of the new order, thus bringing it into line with the rest of the United Kingdom.

While the provisions of the order are generally consistent with existing law and practice in Great Britain, there are one or two respects in which Northern Ireland will differ from Great Britain. I should like to take your Lordships through those differing aspects and try to explain the most significant variations.

In Article 2(2) your Lordships will see the definition of "authorised court". In England and Wales the High Court, the county court and the magistrates' court all have jurisdiction to grant adoption orders. In Northern Ireland only the High Court and county courts will have such jurisdiction. The review group received unanimous support for its view that the number of courts hearing adoption applications in Northern Ireland should be kept to a minimum, thus enabling expertise in adoption work to be built up. Due to the economies of scale and the relatively small numbers of adoption orders made each year I have no hesitation in accepting that view. Therefore, jurisdiction to grant free or adoption orders will not be delegated to magistrates' courts.

In Article 11 on page 11 of the order there are some remarks on arranging adoptions and the placing of children. In Great Britain, in addition to those placements made by adoption agencies, any individual, whether a parent of the child or a third party such as a friend or acquaintance of the parents, a family doctor or a solicitor, may arrange to place a child for adoption, provided that the proposed adopter is a relative of the child. In Northern Ireland at present a placement arranged by an individual whether a parent or a third party may be with either a relative or a non-relative.

The review group was particularly concerned about arrangements permitting placements by individuals other than parents. It felt that the expert skills and high standards demanded of the adoption agencies in determining the suitability of prospective adopters and in preparing the prospective adopters for adoptive parenthood gave a professional safeguard for the welfare and optimum benefit of the child. At the same time it achnowledged the necessity of achieving a balance between protecting the child from what might be an unsatisfactory placement and infringing the personal freedom of the family. Accordingly, no person other than an adoption agency will be permitted to make arrangements for the adoption of a child or to place a child for adoption unless he is a parent of the child and the proposed adopter or one of the proposed adopters is a relative of the child or he is acting in pursuance of an order of the High Court.

Article 16 is to be found on page 14. The relevant paragraph is to be found under Article 16(1)(b)(i)(ab). This is an extraordinarily little paragraph. The matter was covered also by paragraph 51 of Chapter 5 of the report. This aspect of religious upbringing is covered in the following ways. It is not proposed to change the provision in the 1976 Act whereby the parents' consent to adoption can be given either unconditionally or subject to conditions with respect to the religious persuasion in which the child is to be brought up. By way of contrast, in Great Britain an adoption agency in placing a child for adoption is required merely to have regard "so far as is practical" to any wishes of the child's parents or guardian as to his religious upbringing. However, the weight of opinion in Northern Ireland clearly supports the retention of the existing provision.

Another variation that I bring to the attention of your Lordships is reporting to the court. This is covered by the term "guardian ad litem" in Article 66. The law in Great Britain provides for a reporting officer to be appointed when an application is made for an adoption order or a freeing order. His or her main duty is to witness agreements to adoption and to assure the court that such agreements have been given freely and with full understanding of what is involved. In Northern Ireland there was overwhelming support for retaining the present procedure for witnessing consent, whereby a guardian ad litem—in practice this is a social worker—is present when the natural parents appear before a justice of the peace to sign the consent form and the guardian ad litem ascertains on behalf of the court whether every consent was freely given and with full understanding of the nature and effect of an adoption order. There is accordingly no need to provide for the appointment of reporting officers in Northern Ireland.

I have outlined the most significant provisions that will be made by the orders. I have also referred to the main differences that will continue to exist between the law of Great Britain and that of Northern Ireland. The other provisions of the order either reenact existing provisions of the Adoption Act (Northern Ireland) 1967 or contain provisions consequential upon the new policies. Accordingly I do not propose to go through the order article by article. Perhaps I may give a general sysnopsis of the balance of its provisions.

Part I of the order is introductory and provides for title and commencement interpretation. Part II deals with the detailed arrangements for adoption. Article 3 imposes a duty on every health and social services board to establish and maintain an adoption service within its area. Article 4 sets out revised arrangements for the registration of voluntary adoption societies by the Department of Health and Social Security. The new criteria laid down for registration that I have already mentioned must be renewed at three-yearly intervals. Article 9 is what may be regarded as the keynote article of the order as it contains the welfare principle that confirms that the welfare of the child is the central focus of adoption law. It requires courts and adoption agencies, boards and registered adoption societies, in deciding the course of action in relation to the adoption of a child, to regard the welfare of the child as the most important consideration. In so far as is practicable this is to be done, first, to ascertain the wishes of the child regarding the decision; and secondly, to give due consideration to those wishes, taking into account the child's age and understanding.

Part III of the order deals with the definition and mechanics of making an adoption order; in particular it introduces the concept of freeing for adoption and sets out specific grounds on which the court may dispense with the consent of the natural parent. Part IV outlines the arrangements for the care and protection of children awaiting adoption. In particular it places restrictions on the removal of a child from his place of residence while an application for a freeing order or an adoption order is pending. The courts are empowered to make orders to prevent such removal or to secure the return of a child taken away without permission.

Part V of the order deals with the status of adopted children and corresponds with existing provisions in the law of England and Wales. In particular it defines adoption for the purposes of this part of the order, confirms the status conferred upon a child by adoption with regard to legitimacy and relationships and sets out the rules of construction for instruments containing dispositions of property.

Part VI continues with minor modifications to the existing procedures for the registration of adoptions by the registrar general, and it re-enacts (again with minor modifications) the existing procedures for the registration of adoptions made outside Northern Ireland. I have already referred to the new provisions contained in Article 54 which provide for an adopted person over 18 to be given access to his birth records. I certainly would not wish to add anything to my earlier remarks.

Part VII contains miscellaneous and supplemental provisions which generally re-enact corresponding elements in the 1967 Act. However Article 59 not only reinforces existing prohibitions on certain payments in connection with adoption, but it also introduces new measures which will enable adoption agencies to make payment to adopters in accordance with the scheme approved by the department. It also requires the department to publish regular reports on the operation of any schemes which are so approved.

That covers my brief outline of the provisions of the order. I wish to conclude by stressing that the order is not a totally new statement or a new philosophy of the law. It is a set of proposals to update and to improve the 1967 Act which, on the whole, has worked very well and the general principles on which it is based have not been disturbed.

I recognise that some modest resource implications will arise from some of the provisions of the order although these will be substantially offset by savings resulting from other provisions. Overall, the order will not lead to a significant increase in public expenditure or in public sector staffing.

The proposals in the order have received a wide measure of support in Northern Ireland, and for my part I am satisfied that the order represents a sound approach to the subject of adoption. I hope that by simplifying the procedures adoption will assume a more positive role in the range of possible options available for children in need. I beg to move.

Moved, That the draft order laid before the House on 19th November he approved. (Lord Lyell.)

Lord Prys-Davies

My Lords, I will not detain the House over this order. It is an important order and we welcome it. We are grateful to the Minister for describing the background, for explaining its main strands and for identifying the areas where the law on adoption in Northern Ireland will depart in some material respects from the law in England and Wales.

I am particularly pleased that the order recognises that the most important consideration in the adoption proceedings is that of the welfare of the child. It seems to me that this comes out very clearly in Article 9 of the order which the noble Lord, Lord Lyell, has described as the keynote article. It seems to me that it is spelt out very clearly and possibly clearer than in the appropriate section of the Children's Act 1975.

I have only one question to ask the Minister and it is this. The Minister explained that the adoption societies will not be charged a registration fee. Article 4 provides for the payment of such a registration fee as may be prescribed. Presumably this is an enabling power for the department but that in practice it is not intended that a charge be levied on the adoption societies. Perhaps the Minister can explain.

I have no other questions. Our hope must be that the order will make it easier for some of the children of Northern Ireland who are in need of love and care and a stable background, to live happier lives henceforth. We support the order.

Lord McNair

My Lords, as I understand it, this order, with one or two exceptions, brings the procedures for adoption in Northern Ireland into line with the rest of England and Wales. It seems to us to be entirely sensible and the order has our support.

Lord Lyell

My Lords, my outline took 20 minutes, so I must apologise for taking so much of your Lordships' time; but I felt it wise to cover the ground. I am very, very gratified that my outline seems to have found support in your Lordships' House.

The noble Lord, Lord Prys-Davies, had one particular question which he wanted me to answer about charging a registration fee by adoption orders in Northern Ireland. He quoted Article 4 in this regard. The noble Lord will notice in the last line of paragraph 1 of Article 4 towards the top of page 8 the two words, "if any". There will be a departmental discretion to introduce a registration fee at a later date if we think that this is necessary in the light of my earlier remarks.

The noble Lord will see the sentence: paying such fee, if any, as may be prescribed. At present, we do not intend to charge a fee for registration as a voluntary adoption society. I outlined the considerations that if we want to ask societies to register on a triennial registration that we regard it as unreasonable to ask them to pay a fee. That is the background to this particular point raised by the noble Lord.

I am very grateful for the patience and fortitude with which the noble Lord, Lord McNair, has attended upon my interpretation of the particular order. I wish also to express my gratitude to the noble Baroness, Lady Seear, who has once again come to listen to the heat of Northern Ireland debates. 1 assure you that many of us appreciate her presence here. We are very grateful since all the discussions on the affairs of Northern Ireland do not always sparkle with the wit which your Lordships experience on other occasions. We believe in Northern Ireland; that is, the doers and the participants, and we believe that these debates provide an opportunity for points to be raised and queries to be answered. I am grateful for the attention which has been paid to this particular order and to the earlier appropriation order.

On Question, Motion agreed to.