HL Deb 25 June 1999 vol 602 cc1215-25

1.38 p.m.

Lord Meston

My Lords, I beg to move that this Bill be now read a second time.

The Bill comes to this House from another place where it was introduced by my honourable friend the Member for Winchester. It passed through that House with general approval on all sides and with only minor amendments.

The main aim of the Bill is to enable the United Kingdom to ratify the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. Twenty-six other countries have already ratified the convention, a further eight have acceded to it, and 11, including the United Kingdom, have signed it without yet ratifying.

The Bill introduces specific provisions to regulate intercountry adoption and to make it clear to local authorities that they have a responsibility to provide an adoption service which extends to intercountry adoption.

The Bill regulates adoption to prevent and deter trafficking in children and to enable a child lawfully adopted from overseas to enjoy the same legal status as a child adopted in the United Kingdom.

The Bill, in other respects, seeks to improve the adoption process and its efficiency. It provisions can be measured against the requirements in Article 21 of the United Nations Convention on the Rights of the Child to ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption.

The Bill emerges from a long review process on substantive adoption law culminating in the more wide-ranging draft Adoption Bill attached to the consultative document that was published in March 1996. It is timely, in that there is a more general awareness of the problems of the cross-border movement of children. Indeed, the Official Solicitor has set up a working group to deal with that whole area, of which adoption is just one aspect.

Clause 1 provides for implementation of the 1993 convention, the text of which is set out in the schedule. Only the last six articles of the convention, which are essentially administrative, do not appear in the schedule. Indeed, it is a useful and refreshing feature of the schedule that it includes the preamble to the convention. The recitals in that preamble emphasise that the focus of the convention is on the welfare of the child and include the following expressions, to be found on page 10 of the Bill: Recognizing that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin. Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children". Sometimes concern is expressed about delay in the adoption process. That matter is addressed by the convention. Article 9 imposes a duty on central authorities, among other duties, to, facilitate, follow and expedite proceedings with a view to obtaining the adoption". Article 35 also specifically provides that, The competent authorities of the contracting States shall act expeditiously in the process of adoption". At the same time, the convention provides machinery for efficient communication between the child's state of origin and the state which will receive the child.

Returning to Clause 1, the substantial regulations to follow enactment of the Bill will implement the convention in a way that is consistent with our domestic procedures and will cover all intercountry adoption.

Clause 2 provides that the functions of the central authority will be exercised by the Secretaries of State in England and in Scotland, and in Wales by the National Assembly. Certain responsibilities will be delegated to local authorities and accredited bodies. In practice, agencies will have responsibilities equivalent to those that they now discharge.

Clauses 4 and 5 provide for the recognition of convention adoptions and convey to such adoptions the status of domestic adoption. These clauses also provide mechanisms for recognising simple adoptions. That is a difficult topic. I shall not take time to explain it in detail, but refer noble Lords to the very helpful Explanatory Notes that have been produced with the Bill.

Clause 6 provides for annulment. In effect, it implements Article 24 of the convention, which gives a discretion to refuse recognition of adoption which is manifestly contrary to public policy. Typically, those might be cases where there has been fraud or duress, or some other improper inducement. Article 24 expressly takes into consideration the best interests of the individual child.

Clause 7 provides for the acquisition of British citizenship by the adopted child.

I should like to draw attention to only three more clauses. Clause 13 makes clear that references in the existing legislation to arrangements for adoption include assessments for the purpose of indicating whether a person is suitable to adopt a child.

Clause 14 meets our obligation under Article 8 of the convention to take all appropriate measures to prevent improper financial or other gain in connection with adoption, and to deter all practices contrary to the objects of the convention. Clause 14 provides for a criminal offence for people habitually resident here to bring into the United Kingdom a child who is habitually resident elsewhere unless they comply with the requirements of the regulations. The purpose is to deter trafficking in children and the short-circuiting or circumventing of procedural and other safeguards for the benefit of the child. There will, of course, be consultation on all the regulations. Clause 16 specifically provides for the National Assembly of Wales to be consulted.

The need for the Bill arises from the fact that our existing legislation comes from a time when intercountry adoption was rare, and from the fairly poor regulation presently in place. I suggest that the Bill provides a valuable framework for the future for all varieties of intercountry adoption. Above all, it will protect children in all forms of adoption with a foreign element. On that basis, I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Meston.)

1.46 p.m.

Lord Laming

My Lords, perhaps I may begin by thanking the noble Lord, Lord Meston, for his clear and helpful introduction to this important Bill. Only two weeks ago the noble Lord initiated a debate in this House on adoption and fostering. We were all assisted then by his understanding on this topic. I also congratulate Mark Oaten for securing a good place in the ballot for Private Members' Bills in the other place, and more particularly for choosing this subject.

I greatly welcome the opportunity that the Bill affords to the United Kingdom to ratify the 1993 Hague Convention on the protection of children involved in intercountry adoptions. That is long overdue. I wish to impress on the Minister that there should be continued pressure on Northern Ireland to legislate accordingly.

We must constantly have in the forefront of our minds that adoption is a service to children. I emphasise that because, sometimes, the focus seems to shift to the needs of the adults, and particularly so in the case of intercountry adoption. Of course, successful adoptions meet the needs and hopes of both the children and the adults. But the primary focus should be on the long-term welfare of the child.

I stress that point only to emphasise how important it is to get right both the legislation and the procedures. Happily, the Bill addresses both. Although the number of intercountry adoptions in the United Kingdom remains fairly small, nevertheless, the state in each case is charged with doing everything possible to secure the long-term well-being of each of these children and, at the very least, protecting them from harm.

In an ideal world it would be possible to achieve those objectives in the child's own country and culture. Alas, the reality of life for many children is awful. We have seen the horrific pictures on our television screens of children caught up in wars or abandoned in vast orphanages, with little or no prospect of experiencing family life or achieving anything of their potential. Working for change in these countries is good, but we should not in the meantime rob the children of today of new opportunities for a more secure and fulfilling life. For that reason, I welcome the fact that the Bill clarifies that there will be a duty on local authorities to include intercountry adoption in their adoption services. I hope that this will remove the allegations that some local authorities have an ideological objection to intercountry adoption.

Of course, the rights of birth parents need to be respected and the procedures need to be followed with care. But the years of childhood pass all too quickly and I cannot believe that the agencies involved in these processes should feel that they have either precisely to predict the future or to seek to eliminate all dangers of possible failure. None of those matters should he dealt with in a cavalier or casual way, but nor should caution and doubt rule out the hopes of many children for a secure life in a loving family. It is, of course, a question of balance. I believe that the Bill achieves that balance and I wish it well.

1.50 p.m.

Earl Howe

My Lords, this is one of those happy occasions when a Second Reading speech from these Benches can not only be brief but also entirely supportive. Like the noble Lord, Lord Laming, I congratulate the noble Lord, Lord Meston, on introducing this welcome measure which I am convinced will be of very significant benefit to children adopted from overseas, as much as to the parents in the UK who adopt them. I thank him for explaining the purport and content of the Bill with his usual exemplary clarity.

Ratification of the 1993 Hague Convention is overdue. The last government put in a great deal of effort to bring the convention into being in the first instance and followed that up with much detailed work, including a consultation document and a draft Bill in 1996. Sadly, that Bill was not presented to Parliament before the general election in 1997.

Both the draft Bill and the consultative document reflected widely held concerns on three fronts: a desire to reduce the delays and frustrations commonly experienced by couples wishing to adopt children from abroad—delays which do nothing but harm to the children involved; the need to equalise the legal protection afforded to overseas adoptees with that enjoyed by adopted children from the UK; and, as the noble Lord, Lord Laming, rightly emphasised, the need to establish a clear legal framework for the regulation of intercountry adoptions. Such a framework is absolutely vital, not only to achieve the practical benefits to which I referred, but also to minimise covert and unauthorised trafficking in children which bypasses all the safeguards we take for granted in the context of domestic adoptions. It is not acceptable to have two different sets of rules for adopted children, according to their country of origin. We owe it to those children, wherever they come from, to do our utmost to ensure their well-being. That means having a proper process of assessment and approval of prospective adopting parents as well as ensuring that in a child's country of origin all the right questions have been asked and answered on the appropriateness of adoption in each and every case.

I am happy to say that the noble Lord's Bill addresses all those concerns. As a result, the areas of it that cause me a measure of disquiet are, in the context of the whole, relatively minor. I hope he will allow me to run through some of those briefly. I question the desirability of allowing new criminal sanctions to be introduced by means of subordinate legislation. Statutory instruments cannot, by convention, be amended or voted down. At will be interesting to see what your Lordships' Delegated Powers and Deregulation Committee thinks of that. In the meantime, I should be grateful for the noble Lord's comments.

Secondly, I have a question about the role of local authorities. I shall be interested to know whether the local authorities have been consulted over the responsibilities placed upon them in Clause 2(4). That is not an idle question. We all know that there are many local authorities—some estimate up to half the total in the UK—where an active policy exists to block trans-racial adoption. Almost by definition, that policy is at odds with intercountry adoption. It is hard to see how the noble Lord's worthy ambitions for the Bill will be realised if couples wishing to pursue the possibility of an intercountry adoption will be stopped at the first hurdle. It is not simply a lack of sympathy on the part of the local authority which might do that. There is also the question of resources. Many local authorities simply do not regard that type of service as a priority, even though they have the power to charge for home study assessments. They do not have the trained staff to deal with them. Under the draft proposals issued by the last government, it was intended that legislation should include a new duty on local authorities to provide or arrange for assessments of parents wishing to adopt from overseas. Can the noble Lord say in what way the Bill increases the onus on local authorities to respond positively and promptly to requests for assessment from prospective adopters?

One of the ways of facilitating the process effectively would be by giving an enhanced role to suitably registered voluntary agencies who would develop the necessary skills in this specialist field. Can the Minister say what plans the Government have to encourage local authorities to make use of such agencies?

I mentioned that many local authorities make a charge for home study reports where they relate to intercountry adoptions. Domestic home studies, by contrast, are free of charge. The surprise to me was not the charging itself but the wide disparity in the amounts being charged. The London Borough of Greenwich, for example, levies a fee of £1,000. In Hampshire, the fee is £3,600. Can the Minister say whether departmental guidance is likely to recommend a suitable and reasonable range of charges so as to try to iron out those very high figures? We should not forget that the total cost of adopting a child from overseas can be as much as £10,000, if one takes into account not only the home study fees but also travel expenses and legal costs.

I mentioned the need to ensure that social workers receive adequate training for adoption work. The decisions they take are of great significance and the public needs to have absolute confidence in what they are doing. Can the Minister say whether the Central Council for Education and Training in Social Work is seized of the need to focus attention on the special issues that arise in intercountry adoption? Can he also say whether the helpline set up by the last government for those interested in intercountry adoption is still in operation? If it is, who is funding it?

One point needs to be made about the Bill. It is not designed to encourage a mushrooming of intercountry adoptions. It is designed to ensure that when adoption takes place, it is properly regulated with effective safeguards and efficient administration. I echo the comment made by the noble Lord, Lord Laming, that we should always bear in mind that uprooting a child from his or her country of origin and culture to an environment of relative affluence abroad is not something to be undertaken lightly in any circumstances despite the material benefits that would appear to ensue and certainly not unless it is clearly in the long-term interests of the child.

Nevertheless, it is interesting to compare the number of intercountry adoptions taking place in other developed countries. In France, there were 3,666 in 1997, compared with a mere 258 applications made in the UK last year. I do not have the figure for completed adoptions in the UK, only the number of applications. In the US, a country with a population five times larger than our own, admittedly, there were 15,774 intercountry adoptions last year. One cannot help wondering whether all those were as rigorously vetted as they should have been. At the same time, the minuscule number of applications recorded here should cause us to question whether our systems are as efficient as they should be. It strongly suggests to me that the shortcomings in the system identified by noble Lords in our recent debate on domestic adoption and fostering have had a detrimental impact on intercountry adoptions also. I hope that this Bill will make a contribution towards remedying some of those shortcomings. I wish it well

1.59 p.m.

Lord Hunt of Kings Heath

My Lords, I too thank the noble Lord, Lord Meston, for bringing forward this important Bill; few, if any, Members of your Lordships' House are better qualified to do so. The Government recognise that there is a need for legislation to regulate intercountry adoptions. These have been growing steadily in recent years. They provide an option for people who cannot have children of their own or who wish to extend their existing families. It is the Government's view that the opportunity for families to adopt from overseas should continue to be facilitated, while at the same time placing the process on a firm legal footing. The Government believe that the Bill will achieve this.

Adoption offers a positive alternative for children who cannot live with their own families. This applies to all children, whether they live in the United Kingdom or overseas. For some children, adoption provides a fresh start and gives them perhaps their only opportunity to experience family life. Over 850,000 children in the United Kingdom have benefited from adoption since the first adoption legislation in 1926. Since 1993, almost 1,300 applications have been processed by the Department of Health to adopt children from 42 different countries.

The Bill provides two important measures to protect children who are available to be adopted by families in these islands. First, it enables the United Kingdom to give effect to the 1993 Hague Convention. Secondly, it provides sanctions against those who bring children, or arrange for them to be brought, to the United Kingdom without authority. Regrettably, as the noble Earl, Lord Howe, pointed out, experience in the United Kingdom in the past decade makes sanctions necessary to deal effectively with unacceptable practices in intercountry adoption. People who have not been approved as suitable to become adoptive parents bring children into the United Kingdom at regular intervals.

In addition, it is not unknown for fraudulent documents to be used to secure an adoption order in a child's country. There are often concerns about the validity of a mother's consent to the adoption of her child or whether the mother has received money, or has been enticed in some other way, to relinquish care of the child. The operation of the convention will eliminate such practices, as will the requirement that every person seeking to adopt a child from overseas must be assessed by an adoption agency.

On the positive side, this small but important Bill is essentially about children and measures to protect them. These children, however, do not live within the United Kingdom, but in countries that may be unable to provide adequately for their welfare. For many children abroad who need new families, there is no alternative to a childhood spent in some form of institutionalised care. Adoptive families are simply not available and only in a small percentage of cases are relatives able to care for them. But experience shows that institutions do not always make good parents. Some children run away from these institutions to live in public sewers or on the streets and survive by stealing, prostitution, drug trafficking and acting as pimps. The life expectancy of most of these children is estimated by UNICEF to be about six years. Death often comes to these children as a result of drug overdose, murder, hypothermia, AIDS and so on. The noble Lord, Lord Laming, correctly described the conditions in which some of those children live. Intercountry adoption offers some of these children an opportunity for a fresh start. But I emphasise the point made by the noble Earl, Lord Howe: this is not an action to be taken lightly.

For families adopting under the convention the Bill provides a mechanism to enable them to be satisfied that the child is in genuine need of a new home. The competent authorities in the child's country will be required to establish to the authority in the adopter's country that the child has no parent able to care for it, has no relative able or willing to do so and is unable to be placed with an adoptive family in that country. The Bill also provides for adoption orders to be recognised within England, Scotland and Wales automatically when adoptions take place under the convention. This means, therefore, that the adoptive parents will no longer be required to apply to a UK court for a second adoption order. Their adopted children will also enjoy the same legal status as children adopted in the UK. This will include having their adoption registered. Equally importantly, the Bill closes the door firmly on those who seek to adopt children without going through the proper process.

Because these children are to be adopted by people who live in different countries, two sets of laws and regulations must be met: those of the child's country of origin and those of the adopter's country of residence. It was with this in mind, together with the knowledge that intercountry adoption was frequently linked to abuses against children and their families, that the Hague Conference began its work on intercountry adoption in 1990. The convention is a framework that contains minimum standards to be applied by countries that seek to ratify it. It is not a comprehensive adoption manual, but a document upon which countries can build and improve their own legislative measures.

The United Kingdom is fortunate in that there already exists a comprehensive framework to operate the majority of the requirements set out in the convention articles. The Bill fills the remaining gaps and provides an opportunity for the UK to meet an important international obligation by giving effect to the convention's articles. In ratifying the convention the Government will provide a clear signal abroad that they take seriously the protection of children adopted from overseas.

In answer to a number of points made in the debate, I should like to take this opportunity to assure your Lordships' House that the Bill is not about frustrating the wishes of people who want to adopt children from overseas; it is about setting out clearly, and for the first time, the correct procedure to be followed. Continued co-operation between the relevant competent adoption authorities in both the adopter's country and that of the child will ensure that only those children who are in genuine need of a new family are placed for adoption.

I am aware that some prospective adopters are critical of the adoption process both within the United Kingdom and overseas. I should like to respond to the noble Earl's point about the attitude of local authorities and social workers to intercountry adoption. I believe that the attitude of the great majority of social workers who are engaged in intercountry adoption is highly professional. However, some social workers are thought to be opposed to intercountry adoption on a point of principle. Where such views cause difficulties for prospective adopters and are brought to the attention of the Department of Health, they are investigated.

Guidance issued by the department last August made it clear that it is not acceptable for applicants to be denied the opportunity to be assessed by an agency on the grounds that the agency does not agree with the practice of intercountry adoption, or that the applicants do not share the same ethnic or cultural background as children from their country of choice. This wording clearly places a responsibility on senior managers to be satisfied that assessment of the suitability of applicants to adopt children living abroad is carried out by qualified and experienced social workers in a professional manner and that personal views do not prejudice the eventual outcome of an assessment.

At the same time, I recognise that such a process has to be thorough to enable to the adoption agency to be able to state with some confidence that the applicant is suitable to become an adoptive parent. That applies even more when a person is applying to adopt from overseas and the child is unlikely to share the same race. culture, religion, language, traditions or even climate of the adopter. Other important issues must be explored: for example, diet, skin care and any special needs a child may have, particularly one who has been deprived of their family from an early age. Prospective adopters should be given plenty of time to consider carefully such issues and the implications that they will raise, both for themselves and their families.

What is unacceptable, however, is prospective adopters having to wait many months before an adoption agency begins work to assess their suitability to become adoptive parents. Perhaps I may say how much I share the views of the noble Earl, Lord Howe, and the noble Lord, Lord Meston, on the matter of delays. The Bill makes it a requirement for each local authority to provide an intercountry adoption service under Section 1 of the Adoption Act 1976. Proposals for the inspection of adoption services announced in another place earlier this month will be an effective means for ensuring that intercountry adoption is given the appropriate priority as well as meeting the equivalent standards which apply to domestic adoption. I hope that that meets the noble Earl's point.

As regards the timetable, once the Bill becomes law, officials will prepare consequent regulations and guidance to local authorities, adoption agencies and other interested groups. I should like to assure your Lordships' House that we shall be consulting widely on the contents of both. It is intended that this will take place before the end of the year 2000.

As well as guidance, the Department of Health will arrange a series of training seminars to inform adoption agency staff, lawyers, administrators and others about the new legislation and their part in making the new provisions work effectively. Such training will be in addition to programmers arranged by adoption agencies. Also, the department's Guide to Intercountry Adoption will be brought up-to-date at the same time. This publication will facilitate the work of social workers who will be able to use it as a point of reference in their intercountry work.

Perhaps I may take the opportunity to respond to a number of points raised during the debate. First, perhaps I may say to the noble Earl, Lord Howe, as regards the helpline, that my understanding is that it is no longer funded by the Department of Health; it is now an independent source of information, funded by the sale of its literature and run as a registered charity.

On the issue of consultation with local authorities, I made it clear that we shall consult in future about guidance and so on. Local authorities have not objected to any of the points in relation to their duties which have been widely canvassed over some years. I refer in particular to the work done in relation to the 1996 draft Bill which was mentioned.

On the issue of delegated powers, I understand that the Delegated Powers and Deregulation Committee has given the Bill a clean bill of health. I understand that it quite usual to create offences in secondary legislation.

The noble Earl, Lord Howe, asked whether we could encourage voluntary adoption agencies to come forward to work in this area and on the question of charges. Perhaps I may reassure him that we want to see more voluntary adoption agencies coming forward for approval to work in intercountry adoption, thereby providing prospective adopters with a genuine choice of whom they may approach to be assessed. However, when it comes to fees, unless the voluntary agency is able to charge a fee which covers its legitimate expenses, it is unlikely to want to take on such work.

The department will prepare guidance for local authorities, adoption agencies, and other interested groups to accompany the new Act and its consequent regulations. In relation to the point about the variation in charges throughout the country, this will include advice about charges, including the need to keep the level of charges within modest boundaries and for agencies to provide prospective adopters with a breakdown of any charges made.

The noble Lord, Lord Laming, asked about the position with regard to Northern Ireland. I understand that Northern Ireland intends to introduce the necessary legislation to ratify the Hague Convention and will be preparing separate legislation in due course.

The Bill is compatible with the European Convention on Human Rights; and similar legislation is being considered, if not already enacted, by many of our European partners.

The children whom we seek to protect by the Bill cannot plead for themselves. We must act on their behalf. I therefore recommend that your Lordships give the Bill a Second Reading.

2.14 p.m.

Lord Meston

My Lords, I am grateful for the support for the Bill from the speakers in the debate. I am beginning to recognise them as a small and select group of Friday speakers in the House.

I agree with the noble Earl, Lord Howe, that this Bill should neither encourage nor discourage those who seek to adopt children from abroad. However, it recognises that that is a growing phenomenon and by means of ratification of the convention will set internationally accepted standards. I question the noble Earl's comparison with the amount of intercountry adoption undertaken in countries such as France. The correct approach must be that we should be confident in our own standards of fairness and efficiency rather than worry too much about some kind of international league table.

As the noble Lord, Lord Laming, said, properly the convention and therefore this Bill focuses primarily on the child. I am grateful to the noble Lord for emphasising that the Bill will set out duties on local authorities.

I am grateful to the Minister for responding to some of the points raised by the noble Earl, in particular his point about the criminal sanctions to be imposed under Clause 14. I hope that I indicated in my opening remarks what I understand to be the mischiefs aimed at by Clause 14. The regulations which will come forward and underpin Clause 14 must be clear enough to justify the criminal sanction which will be imposed. I am also grateful to the Minister for confirming my belief that consultation and guidance will be given to local authorities.

The noble Earl also raised the difficult issue of attitudes to trans-racial adoption. That is a serious point, but I have the impression that the attitudes to trans-racial adoption which have been reported publicly have largely been reconsidered by those who have held them. In that context, I emphasise the point that under Article 4 of the convention: An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin … have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests In other words, the child must have been considered for adoption within his or her own country before an intercountry adoption is taken up.

I am grateful to the Minister for dealing with the issue of charging and confirming my understanding that there will be guidance to bring some standardisation to the fee structure. But underpinning that are the words of the convention, to be found in Article 32, emphasising that there should be: No … improper financial or other gain from an activity relating to an intercountry adoption", and that fees charged should be at a reasonable level.

I renew my thanks for the support the Bill has received and I renew my request that it be granted a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.