Adoption and Children Bill

HL Deb 16 October 2002 vol 639 cc860-950

3.14 p.m.

Lord Hunt of Kings Heath

My Lords, I beg to move that the Bill be now further considered on Report. Moved, That the Bill be now further considered on Report.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

Clause 39 [Step parents]:

Lord Hunt of Kings Heath had given notice of his intention to move Amendment No. 43: Page 25, line 8, leave out "step-parent who" and insert "partner of a parent and the partner

The noble Lord said: My Lords, I do not propose to move Amendment No. 43 and the other amendments in the group as I believe that the House would find it helpful to consider the issue of principle in relation to unmarried couples. Depending on the outcome of today's debate, I may bring back some further consequential amendments on Third Reading. I shall not move the amendment.

[Amendment No. 43 not moved.]

[Amendment No. 44 not moved.]

Clause 41 [Recovery orders]:

Lord Hunt of Kings Heath moved Amendment No. 45: Page 25, line 38, after "section" insert "31(4),

On Question, amendment agreed to.

Clause 42 [Child to live with adopters before application]:

[Amendments Nos. 46 to 48 not moved.]

Earl Howe moved Amendment No. 49: Page 27, line 16, leave out from "them" to end of line 17 and insert "at all times during the period of six months preceding the application

The noble Earl said: My Lords, Amendment No. 49 brings us to an important issue relating to intercountry adoption. When intercountry adopters return to the UK with their adopted child they have to make a subsequent adoption application to a UK court unless the state of origin is a designated country whose adoption orders are recognised in the UK.

At present, where an application is made to a UK court, an adoption order cannot be made unless the child has had his or her home with the applicant for 12 months, or 13 weeks with relatives, as defined by the Adoption Act 1976. When implemented, the Adoption (Intercountry Aspects) Act 1999 will provide for an adoption application to be made in convention adoptions after the child has had his or her home with the applicants for six months.

The Adoption and Children Bill, however, seeks to change that position. I have to say that I regret greatly that the Bill will not consider intercountry adoptions as agency adoptions even though they will be conducted to the same standard and with the same level of official oversight as domestic adoptions. Indeed, I argue that that is inconsistent with our international obligations under the UN Convention on the Rights of the Child and the Hague Convention, to ensure that safeguards and standards equivalent to those which apply in domestic adoption should be applied in intercountry adoption to protect the welfare of the child". If our ratification of the Hague Convention is to have the full weight that is intended, adoptions conducted within the prescribed procedures must be agency adoptions.

One result of intercountry adoptions being treated as non-agency placements is the impact of the time-scales within which an adoption order can be made. Where an adoption application to a UK court is required, unless the application is a convention adoption, the child will have to have had his or her home with the applicant for three years out of a five-year period before an application can be made. That is how I read Clause 42(5). There is provision for the application to be made sooner but only if the court gives leave. This introduces an additional and unnecessary hurdle, in my opinion, which will be a further drain on court time and resources.

This change is of concern. To begin with it cannot be considered to be in any child's best interests to wait for over three years for its legal position within its adopted family to be secured. In domestic adoption the thrust is towards shortening the period for the adoption process to be concluded. So it is totally unacceptable that the adoption process for many children adopted from abroad will be prolonged by at least two years. Besides that, states of origin, perfectly understandably, wish to see the future of the children they place settled in a timely fashion. Many countries will find these new provisions unacceptable because the child's adoption status will remain undetermined for more than three years after placement and, as a result, the child will have to wait until then to acquire the same nationality as the adoptive parents.

I have a further concern. My understanding is that when a child is brought into the UK for adoption and notification of intention to adopt has been given, regulations may impose functions relating to the child's placement on the local authority to which the notice was given. I refer to Clause 83(6)(b). Because these placements are not to be considered agency placements there are real concerns that the supervision of the child may be given low priority in the light of competing demands for social work resources. I hope that the Minister can confirm that the regulations will place local authorities under a strengthened duty to supervise and review these placements as if they were agency placements until the adoption order is granted. The ideal solution, of course, would be for intercountry adoptions to fall within the definition of agency adoptions. However, I understand that that is something that the Government are not prepared to contemplate. If that is true, it would be helpful if the Minister could say why.

Therefore, my amendment seeks to specify the same six-month period before which an adoption order may be granted in respect of all intercountry adoptions, whether they are convention designated or non-convention, non-designated adoptions. I hope that the Minister will be able to look sympathetically at the amendment. I beg to move.

Baroness Barker

My Lords, I rise to support the amendment moved by the noble Earl, Lord Howe. I also take the opportunity to remind the House of the debate that we held in Grand Committee. In relation to people who bring children to this country from abroad, we discussed whether they should undergo the same level of assessment as do those involved in domestic adoptions. We received from all the organisations that are active in this field evidence that obtaining an assessment from social services departments was nigh-on impossible. That led to a great deal of distress and unnecessary uncertainty for those concerned and for their families.

We also discussed at some length in Grand Committee the need for there to be confidence in the system of registration of intercountry adoptions. Therefore, I want to follow up the question posed by the noble Earl, Lord Howe, and to ask the Minister to respond to suggestions that the reason for the Government's stance is resources. If that is the case, can the Minister explain it to the House in some detail?

Baroness Andrews

My Lords, the noble Earl knows that I am always sympathetic to his amendments. We have approached the Bill in very much the same spirit throughout its entire proceedings. Because his amendment has implications for both domestic and intercountry adoptions, I shall, if I may, set out the background and deal with the matter of intercountry adoptions as soon as I can.

The amendment is concerned with the minimum period that a child must have had his home with prospective adopters before an application to adopt may be made in cases where an adoption agency has not arranged the adoption placement. As the noble Earl explained, by implication, in this country the subsection would include adoption by a grandparent, an aunt or an uncle and so on. But that involves a very small number of cases—fewer than 100. Nevertheless, each one is extremely important because of the situation of the child.

The amendment suggests that the time period involved is reduced from three years to six months. We have difficulty in supporting the amendment in that sense. Throughout the progress of the Bill, the noble Earl has emphasised the finality of adoption, its seriousness and the need to be careful about how we approach it. That is why I believe it to be firmly in the interests of the child that we ensure that in this situation, in particular, there is a proper and genuine opportunity for the child and the family involved to establish a relationship which would justify the making of an application to adopt.

In non-agency cases, none of the safeguards relating to placement through an adoption agency applies. That is obviously the first reason for our concern. The differences are, for example, that, when an agency is involved, the adoption panel will have approved adoption as being in the child's best interests after thoroughly examining the issue. The assessment will be rigorous; the birth parents and the adoptive parents will be checked; and the match will be assessed and considered.

In a non-agency case, the prospective adopters have the opportunity to inform the local authority that none of that extra scrutiny is in place. We believe that the law needs to provide sufficient time to be able to test that what has emerged is a very loving and lasting relationship. We need proof of that.

We intend to bring the Bill into line with the Children Act, which introduced very useful changes. At present, in the case of relatives, adoption orders may be made once the child has been with the adoptive applicants for 13 weeks and, in the case of non-relative, non-agency cases, 12 months.

The change from 12 months to three years may seem rather significant but there are good reasons for it. The 1976 Act pre-dates the Children Act. At the time of that Act, alternative means for facilitating placements—residence orders, for example—were simply not in place. Now, relatives and non-relatives can automatically apply for residence orders for children who have been living with them for three out of five years.

Finally, we are particularly concerned about the issues raised when a member of the family adopts a child because the implication is that all the relationships within that family change. If a grandparent adopts, for example, the changes can spread over two generations. Therefore, again, we want to be careful that we are allowing sufficient time for those changes to be worked out. That is why we set out in the Bill other alternatives for families in relation to adoption. Those include not only residence orders but special guardianship orders and also the ability of a step-parent to acquire parental responsibility. Therefore, the Bill deals with the safety and security of the child; it ensures consistency with the existing law; and it provides a range of alternatives to adoption.

Perhaps I may offer the noble Earl one final assurance. While we hold firmly to the general provisions, given the complexity of family circumstances, we have not completely closed the door. We have made provision in Clause 42(6) for any exceptional cases so that prospective adopters may, within a three-year time period and if the circumstances justify it, apply to the court for leave to make an application. That is the background and the domestic context in which the specific questions raised by the noble Earl apply in terms of intercountry adoptions.

In the interests of brevity, Clause 83 enables us to modify arrangements for intercountry adoptions. There may well be a case for a different time period to apply in respect of intercountry relative adoptions when the alternatives in UK legislation are not available.

In general, the intercountry provision currently allows modification of residence periods set out in Chapter 3. I take the point raised by the noble Baroness about confidence in resources. Perhaps I may write to her about that. We had a very important debate in Committee on the question of the confidence that must obtain between countries where we are dealing with such delicate matters. It is our intention to use those powers to provide that, where the proper procedures are followed, an application can be made in the UK to adopt a child brought from overseas after the child has lived with the applicants for six months. But where the proper procedures are not followed, we intend to extend the period to 12 months.

As the Bill is drafted at present, those modifications would not apply to intercountry adoptions by relatives. However, we have gone through a consultative process on the new draft intercountry adoption regulations which are needed to implement the Hague convention. We have also received correspondence from intercountry stakeholders, and we have treated that seriously. We are currently considering how relative intercountry adoptions should be dealt with.

I am willing to include in those considerations the issue of the appropriate residence period for intercountry relative adoptions. I hope to be in a position to respond at Third Reading to the time-scales and to the other issues raised by the noble Earl.

Earl Howe

My Lords, I am extremely grateful to the noble Baroness for that encouraging reply. As she will know, my concern focused exclusively on the inter-country adoption issue rather than on the domestic one, although of course that, too, is of significance. I am sure that her undertaking to provide further and better particulars at Third Reading is welcomed on all sides of the House. I believe that it is probably best if I do not comment further at this stage. I shall obviously read very carefully what the noble Baroness has said today but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 45 [Suitability of adopters]:

3.30 p.m.

Earl Howe moved Amendment No. 51: age 28, line 38, after first "a" insert "married

The noble Earl said: My Lords, in moving Amendment No. 51 and in speaking to the other amendments grouped with it, I am conscious that we have reached a set of issues which, it is fair to say, did not succeed in generating unanimity during our Grand Committee proceedings. Therefore, I begin by making the same plea as I did then; that is, that noble Lords should examine dispassionately and with an open mind the arguments that I am about to present.

I believe that I can say fairly to the House that I have done the same in reverse. The issue of whether unmarried and same sex couples should be permitted to become adoptive parents is one to which I have devoted a great deal of thought over the past few weeks. I have read and reread the thoughtful contributions made from all sides in Grand Committee. Having done so, I am absolutely convinced, as is my party, that the other place was wrong to amend the Bill as it did. I shall explain why.

There is one matter on which I think all of us are agreed when it comes to adoption. Indeed, it is a theme which permeates the Bill; that is, children who are adopted need to have stability in their lives. I shall go so far as to say that they are entitled to expect stability. Adopted children almost axiomatically come from troubled and unstable backgrounds. Adoption holds out the hope of love, security and stability.

Clause 45 sets out the basis upon which prospective adopters will be considered suitable. It flags up the issue of stability to the exclusion of all other matters. It refers to the need to ensure that in determining the suitability of a couple to adopt a child, proper regard is had to the need for stability and permanence in their relationship. In other words, if there is a sine qua non for stability in a child's life, it is stability and permanence in the relationship of the parents.

What are the measures of stability and permanence, and how will we recognise them in a couple who apply to become adopters? The Government state that those qualities will become apparent through the assessment to which all prospective adopters will be subject. It is that assessment process which will allegedly ensure that couples who are likely to make good parents are separated out from those who are not.

I have no quarrel with assessments; they are a vital part of the role of adoption agencies. They must carry out assessments in a rigorous and professional way. The assessment is our means of identifying the key skills and attributes necessary for successful adoption, by which I mean parenting skills; soundness of character: an absence of selfishness; the ability to love children and to enjoy their company; the ability to provide for them in a material sense, and so on.

However, the proponents of unmarried and same sex adoption would go further. They maintain that the assessment will also be a sure test of the stability and permanence of a couple's relationship. I simply do not believe that. Yes, an assessment can sometimes detect personality traits in an individual which can put a question mark over the durability of the marriage. What it cannot do, and never has done so far as I am aware, is to act as a reliable predictor of the stability and permanence of any particular relationship. Indeed, it would be extraordinary if there were a test which could do that. We can say with hindsight that there are many unmarried couples who stay together for a long time in a loving and stable relationship. I am sure that we all know such couples. But if we try to argue that an assessment will tell us in advance which couples they are, I believe we are deluding ourselves.

So what are we left with? We are left with the indicator of stability that is most obvious. Two people who choose to commit themselves to each other in marriage are making a public statement about their commitment to a permanent and stable relationship. By contrast, two people who live together but are not prepared to marry are implicitly signalling that they regard their relationship as something which may be less than lifelong. I recognise that couples of the same sex are not in a position to marry. Their case is different; I shall speak more about them in a moment.

My point for now is that if we imagine an unmarried man and woman putting themselves forward as potential adopters, any assertion from them that they are committed to one another for life is contradicted in one major respect. That element of uncertainty does not begin to arise in the case of a couple who are married. Why does that worry me so much? It worries me because of what we know about the impermanence and instability of unmarried relationships. I was chided and rather made fun of in Grand Committee for quoting statistics. However, the validity of those statistics has not seriously been challenged.

If the statistics showed that in practice there was little difference between married and unmarried couples in terms of the durability of relationships, I do not think I would be standing here arguing this case today. What they actually show is a very substantial disparity between the two groups. Eighty-three per cent of cohabitations break up within 10 years. The average length of a cohabiting relationship is two years. Where children are involved, the figures are particularly telling. Cohabiting couples are more likely to split up after the arrival of their first child than married couples; not just a little more likely but six-and-a-half times more likely.

The Office for National Statistics presents the figures even more starkly. Among couples who are married and have their first child, eight per cent are no longer together after five years. Of couples who cohabit and later marry, 25 per cent—three times as many—split up within five years. Of unmarried couples who never marry, 52 per cent split up after the arrival of their first child. I should like to hear from those who disagree with me why they think those findings can be dismissed as being of no importance. To dismiss them is to say that statistical risk does not matter. It is to say, as many noble Lords did in Grand Committee, that we can rely on the assessment of particular individuals without worrying too much about the generality of unmarried relationships. However, as I have tried to show, that position is based on a fundamental misconception. If we are looking for a solid indicator of stability, the real question is whether we feel safer in placing our reliance on the subjective judgment of social workers or on the evidence of a social contract that is long established and recognised by society.

I defy any social worker, however experienced in his field, to identify unfailingly couples of the same sex who are likely to remain together in a stable and permanent relationship. If we think that unmarried heterosexual couples are statistically a poor bet from that point of view, gay relationships are even less stable. The average length of a so-called closed gay relationship is 21 months. "Closed" in this sense means that sexual fidelity has been maintained for the past month.

In saying all that, I am not passing or implying any moral judgment. I hope that noble Lords will accept that. However, I ask why should Parliament consciously and deliberately allow some of our most vulnerable children to be adopted by couples whose relationships are much more likely to fall apart than are those of married couples. I say, as I did before, that it is not that there will be no unmarried couple whose relationship will endure; many do so supremely well. If the Bill is passed as it stands I have no doubt that a number of unmarried adopters will prove to be ideal parents. However, we cannot be confident about the generality; quite the reverse. If we cannot be confident, Parliament should not take that big a risk. It is irresponsible for Parliament to do so.

I shall cite an analogy. The law states that no one in this country under the age of 17 may legally drive a car on a public road. It is not that there are no 16 year-olds who would be safe driving a car; of course there are. Some might be even better drivers than a few people of 17 or 18 who hold licences. But Parliament has taken the view that for the general good of society the law has to contain a cut-off age. The reason for that is that on average children are not to be trusted behind the wheel of a car.

Perhaps I was guilty a moment ago of glossing over the reasons why stability and permanence are so important in a child's life. I remember the noble Earl, Lord Russell, remarking in Grand Committee that he was the child of divorced parents and that it did not seem to have done him any harm. Happily, that is so. He also cited some instances known to him, which I would not seek to dismiss, of unhappy children living with unhappily married parents. However, I humbly suggest that as legislators we cannot afford to be anecdotal.

Earl Russell

My Lords, the noble Earl has just quoted me. It is not to my recollection exactly what I said. I did not say that it did not do me any harm, I said I did not think it did me any more harm than if my parents had stayed together while desperately unhappy. The points are distinctly different.

Earl Howe

My Lords, as ever, I am grateful to the noble Earl for that clarification. To cite individual cases is, by definition, to be anecdotal. To be anecdotal tempts us to ignore the generality. That amounts, I believe, to being blasé over the future welfare of children in this context who come from troubled, disruptive and often from loveless backgrounds.

All the evidence shows that the best predictor of a child's well-being, whether we are talking about educational attainment, health, employment, avoidance of drug taking, teenage pregnancy, crime or whatever, is that the child has parents who are married.

Marriages of course do fail. But when a couple divorce it is for the matrimonial court to decide how best to protect the welfare of any children in the division of the couple's property. The law of property, as it relates to marriage, is well-established. Children of unmarried couples do not enjoy the same protection. This summer the Law Commission published a report, Sharing Homes, examining the property rights of people who live together outside marriage. It makes sobering reading.

If one shares a flat or a house with someone who legally owns it and one then parts from that person on less than amicable terms, the law deals one a very poor hand of cards as regards claiming a share of the property value. Resorting to the courts is fraught with uncertainty. When it comes to any other assets of your partner which one previously shared, one has no cards in one's hand at all. An adopted child caught in the middle is placed in an extremely vulnerable position. Where will the child be housed? How will he be supported if he stays with a parent without means?

The Law Commission concluded that in many respects it would be impossible to amend the law to ensure fairness in this area. The Civil Partnerships Bill introduced this year by the noble Lord, Lord Lester, might have held out some remedies. But it is not on the statute book, or anywhere near. I was chided in Grand Committee for raising the issue of property rights as if it were of minor importance. It is not of minor importance, and I make no apology for so doing. It is yet another reason why the stability of marriage as a socially-recognised contract is to be preferred above informal types of relationship in the context we are now debating.

That leads me to my final point. My greatest objection, if the Bill were to pass as it stands, is that for the purposes of adoption the law would place marriage, cohabitation and gay partnerships on a platform of legal equivalents. The fact of a couple being married would carry no weight at all in any choice between alternative sets of adopters. That defies common sense. Its consequences would be perverse. We can easily envisage a situation in which social workers felt that a particular child's needs were best met by a married couple but were inhibited from saying so because of the fear that this might lead to an accusation of prejudice against unmarried or gay people. I cannot see how we can possibly guard against that.

The same difficulty manifests itself in the assessment work of adoption agencies. Adoption agencies will come under pressure to have an overtly even-handed policy towards married, unmarried and same sex couples in the way they operate their assessment procedures. The end result will be that instead of 95 per cent of adoptions being with married couples, as they are at the moment, married adopters will be increasingly, and unreasonably, sidelined in favour of the other two groups. In those circumstances there would effectively be a bias operating against marriage.

When I hear people say, as I have recently, that the debate is about equal opportunities for married, unmarried and gay people, I truly despair. This debate has nothing to do with equal opportunities for adults; it is about doing what is best for children. I say to the House that the cause of children's welfare is gravely damaged by those who champion the Bill in its present form. I hope noble Lords will not be tempted to follow them. I beg to move.

3.45 p.m.

Lord Jenkin of Roding

My Lords, it may be helpful if I speak at this stage of the debate. I begin with an apology to the House that the amendment I tabled came so late; the fact is that other amendments were tabled some days ago. Amendment No. 51 A, which appears in the next group to be voted on, is by its nature a paving amendment to those others.

My noble friend Lord Howe will find that I agree with a great deal of what he put to the House in a powerful speech. I intervene at this stage because I want to make only one speech and not two, one on this debate and another on the next group. I suspect that that will have the general approval of the House.

Not having attended the Grand Committee held in the Moses Room, but having gone into the issue at some length, I am depressed—but not surprised—to be confronted by two ideological camps ranged against each other: those who argue, like my noble friend, with great passion that the only possible source of adoptive parents is married couples, and those who have, as it were, forced their way into the Bill in another place who would add unmarried heterosexual cohabitees and same-sex cohabitees.

This polarisation is very evident, not only in the many letters noble Lords will have received in recent weeks, but also in the considerable volume of social science literature with which the Library research department has furnished me. If I add to that the articles and pamphlets which have been sent by the various organisations which take one side or the other in this argument, I am left with an indelible impression of armies of committed researchers determined to make the facts fit their prejudices.

I do not believe that the solution to the problem we face lies in this "all or nothing approach". The specific case that I seek to put to the House is that to confine adoption to married couples only—even in the existing law it is not so confined because single people may adopt—in today's changing society is much too restrictive. I also take the view that to extend adoption to allow it by same-sex couples would be a very grave mistake.

To make it lawful for heterosexual couples in long-term stable relationships who choose not to be married to adopt would, most important of all, widen the circle of prospective adopters at a time when the agencies and local authorities find it difficult to find enough parents prepared to adopt, particularly the more difficult children in the older age ranges.

Secondly, it would give more disadvantaged children the chance of a secure family life with two legal parents. Thirdly—and here perhaps I take a marginally different view from that of my noble friend—the careful assessment procedures recommended in the Department of Health's admirable consultation paper would still ensure that the risk of family breakdown could be little higher than in the case of married couples.

I am glad to agree with my noble friend—I am sure that every noble Lord does—that it is the interests of the child that must be paramount in all adoption procedures. Concepts such as political correctness, social engineering and gay and lesbian rights should play no part in that process. Interestingly, I felt myself agreeing word for word with the former Home Secretary, the right honourable Jack Straw, who said on the "Today" programme in 1998: I'm not in favour of gay couples seeking to adopt children because I question whether that is the right start in life. We should not see children as trophies". That is absolutely right.

I warmly welcome the statement made in the department's consultation paper at paragraph 5.16: Prospective adopters should never be excluded from the adoption process because their wish to adopt stems from a religious conviction". I am sure that I am not alone in having received several letters from people who have sought to adopt but have been refused on the grounds that they are Christian. That is utterly intolerable and indicative of a culture that has grown up in social service departments—and, one must say, in some adoption agencies—that is specifically anti-Christian. I am glad that the Government have grasped that nettle and, on the evidence of the report, seem to rule that attitude to be illegitimate.

I turn to the figures cited by my noble friend, which I shall not repeat. I have no difficulty in accepting that adoption into a stable and secure family where the parents are married remains by far the best solution. My guess is that it will remain the most popular solution. I am not sure that I go along with my noble friend's suggestion that if we open the door a little wider, married couples will be disadvantaged. But I must ask: is that to be the only answer to the problem?

We all recognise that we live in a period of great social change and change to the patterns of family life. I venture to guess that there are few Members of your Lordships' House in whose extended family there are no examples of cohabitation without marriage. That represents a great change of attitude in our society. A national survey article stated three years ago: The once pervasive social stigma associated with living together without marrying has diminished continuously over the last three or four decades, and has now all but disappeared…first the pretence of, and then all reference to, marriage was finally dropped; informal unions have become recognised as a social institution in their own right". Equally, I agree with my noble friend and accept that most cohabiting unions last a short time; they are either dissolved or the couple marry. That stimulated a wry headline in the journal of the Royal Statistical Society: Cohabitation in Great Britain: not for long but here to stay". I further agree with my noble friend that far more children born within marriage live with both parents up to the age of 16–70 per cent of those born within marriage compared to 36 per cent of those born to cohabiting unions.

However, having said all that, I can find no evidence that bears on the crucial issue in the present context. If the assessment process were to be carried out as thoroughly and effectively on a stable and apparently secure unmarried couple as they are on a married couple, would there be much discernible difference in the outcome? It is wrong to take the generality of cohabiting couples and project the figures into particular adoption cases. As we all know, regrettably, an increasing number of marriages fail. Where there has been an adoption, are failures fewer than where there has been an adoption by an informal union? I doubt it. Despite what my noble friend said, the very thorough searches that are carried out would draw clear lines as to where children should be placed.

We all know that under the present law, a single person may adopt. Of course, such a person may already live in a secure informal union. But for the child, that means there is only one adopter—one legal parent. Only the adopting parent can stand in a legal relationship with the child. That is not in the best interests of the child. If adoption into families with a stable, secure informal union already happens—and it does—should not the Bill recognise that and make the position more explicit? That would give the child—which is our overriding concern—the advantage of two legal adopters, a father and a mother. I therefore find it difficult to agree that we should confine the law to married couples and single people. We should recognise the changes that have taken place and continue to take place in society.

I turn to same-sex adopters, with whom I can deal much more briefly. Just as a child must have both a father and a mother to come into the world, it is right that a couple adopting a child and becoming its adoptive parents should consist of a father and a mother. Here we need to use common sense. There is a plethora of so-called learned articles approving of same-sex adoption. I find them wholly unconvincing. One of those who advocates that cause, Sara Scott, who is a Barnado's research officer, admitted that the truth is that there, has been no research specifically on outcomes for children adopted or fostered by lesbians or gay men". That is a leap in the dark of which we should have no part.

I find it impossible to believe that a child who has two mothers or two fathers will not be regarded as a bit of a freak at school. It is well known that children who go from local authority homes already suffer stigma. Should we add to that, by creating the stigma of having two parents of the same sex?

Many of us will have received an interesting letter from Mrs Gillian Barker. She writes: As a former lesbian who has raised a daughter in lesbian and gay households, I am writing to urge you to vote against adoption by homosexuals. Up to the age of 14, my daughter was brought up by myself and other lesbians. My daughter never had a father to relate to. She was in a constantly volatile situation, as were other children I knew brought up within homosexual relationships. It was only in 1990, when I married my husband, that my daughter began to experience the sort of home life she should have had all along. Sadly, it was too late. The damage of the previous years could not be undone". I have also had a letter from a former constituent—a clinical psychologist who lives in South Woodford. He wrote: It is surely wrong to put 'gay rights' before the legitimate best interests of children. The traditional lifestyle of children living in a family with a mother and a father may, for children in care, already have been foregone, due to their circumstances—but is that an argument for placing them into an 'alternative' lifestyle?". Thus writes Dr Martyn Baker.

I come back to Jack Straw: children are not trophies. I find it impossible to accept the amendment proposed by the noble Earl, Lord Howe, as it is too restrictive. Nor can I support the provisions of the Bill, and I have given my reasons for that. The case that I make has, I have discovered, been referred to by the House authorities as a middle way. We should say yes to adoption by stable and secure informal heterosexual unions and no—very firmly—to adoption by same-sex unions. I hope that, when I move Amendment No. 51A, I will have the support of the House.

4 p.m.

The Lord Bishop of Winchester

My Lords, in the other place and in your Lordships' House—at Second Reading, in Grand Committee and, at times, this afternoon—attention has been drawn to Clause 1(2), which states: The paramount consideration…must be the child's welfare". That is properly so. However, many who made that reference did not quote the sentence through to its end. It says: The paramount consideration…must be the child's welfare throughout his life". If we take those last three words at their face value, we will see that they require your Lordships' House to support the amendment and those grouped with it, which have been tabled in my name and those of others.

The three words "throughout his life" put a clear premium on the greatest possible assurance of the permanence of adoptive parental relationships. I cannot see how Parliament can responsibly—the noble Earl, Lord Howe, used that word too—allow the committing of children and young people for a relationship for life to couples who have not committed themselves to each other, publicly and in law, till death us do part". Those of us who have had the privilege of growing up through any substantial part of our life with our parents living and those of us who have the privilege to be parents, whether natural or adoptive, will know that parenting goes on and on, right through the lives of parents and children. We also know that the family relationships of which parenting and being a child are part are more widely transgenerational. They include relationships of all kinds, such as more distant blood relationships and friend relationships. Those relationships too, at their best and most supportive, are lifelong.

As the noble Earl, Lord Howe, has amply shown—I shall quote no statistics—the statistical evidence is only too strong that, notwithstanding the rates of marriage breakdown, heterosexual relationships short of marriage are much less secure and much more prone to dissolution than are marriages. Same-sex relationships are more so still. Those are strong arguments for the proposition that the Bill should remain as it was when first printed for the other place. In it, adoption by couples was limited, as at present, to couples made up of a woman and a man who are married to each other. There are strong arguments for the amendment and the related amendments. There are also strong arguments against Amendment No. 51A, notwithstanding the attempts at persuasion made by the noble Lord, Lord Jenkin of Roding. The case still stands, and my convictions were not one whit altered by the speech that we have just heard.

The case for the amendments is bolstered by a different consideration, to which the noble Earl, Lord Howe, made a brief reference. I continue to believe that a responsibility lies on government to sustain the unique, particular position of marriage as the fundamental reference point for family life and adult relationships and to withstand the pressure to equate other couple relationships with it. I am in no doubt that the effect of this element of the Bill in its present form will be to contribute to the undermining of marriage. Undermining marriage is, as the Chief Rabbi has said, like destroying a precious ecosystem, on which the security, the maturing, the well-being and the wholesomeness, not only of countless individuals but of our society, now and in the future, depends.

There is a proposal in the Bill as it stands that adoption should be open to same-sex couples. I draw the House's attention to the second part of Clause 1(6), which says that, the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so". I must say something similar to the points made in the latter part of the speech made by the noble Lord, Lord Jenkin of Roding. My reading of the slight research evidence that exists about the effects on children of parenting by same-sex couples and letters that I have received from people with first-hand experience of those effects, as parents or as social workers and other specialists, make me doubt the regularly made claim that children are unlikely to suffer damage if they are brought up by a same-sex couple. Indeed, the probabilities seem to me to lie the other way.

On all those grounds, I invite your Lordships to support the amendments in the names of other noble Lords and in my name. The amendments will ensure that adoption by couples is limited to couples who are married.

Lord Alli

My Lords, I have read much in the newspapers today about this debate. To be honest, I feel ashamed of the way in which the debate has been conducted. It should have been about finding homes for the 5,000 or so children currently in institutional care awaiting adoptive families. But it has taken on an unhelpful tone. It has set married couples against unmarried couples and married couples against, gay couples. All that any of us want in this debate is to find homes for children in institutional care.

I happily agree with many noble Lords that married couples should have priority over unmarried couples. I also agree that unmarried couples should have priority over gay couples. But I cannot agree that a child in institutional care is better off there than in a loving, caring home. We need to think long and hard about the issue.

There are 50,000 children in institutional care; 5,000 are waiting for homes. Thirty-nine per cent of the prison population under 21 have come from institutional care. Between 14 and 25 per cent of women leaving care are pregnant or have a child already.

Lord Waddington

My Lords, I put to the noble Lord a question that I was minded to put to my noble friend. If the circle of people qualified to adopt increases in size, how can one say that more children will be adopted? What evidence is there that unmarried or gay couples would be more likely to take on the children who are most difficult to place? It is most likely that all you will do is increase competition for the children who are the easiest to place.

Lord Alli

My Lords, at the risk of incurring the wrath of the noble Earl, Lord Howe, perhaps I may use anecdotal evidence. I would consider adoption with my long-term partner if we did it together. With the commitments of this House, I could not give the time necessary to a child. As we have heard, a child is not an accessory; one has to find time. So in my case, maybe there would be one extra.

I do not know whether noble Lords remember the television comedian Frankie Howerd. I believe he used to say, "Something funny happened to me on the way to the Forum". Well, something funny happened to me in Grand Committee. I found myself in agreement with the noble Lady, Lady Saltoun of Abernethy. In my memory I have never been in agreement with the noble Lady, except on this one point. I would like to quote my noble friend—perhaps that is extending it too far—I mean, the noble Lady: It seems to me that the Bill is not about propping up the institution of marriage, but about getting these wretched children out of care and into families".—[Official Report, 11/7/02; col. CWH 238.] What are the arguments used against letting unmarried couples and same-sex couples adopt? The first is that couples who are not married cannot demonstrate that they are in a long-lasting committed relationship; if they were—as the noble Earl, Lord Howe, says—they would have married. That argument falls flat for two reasons: first, all prospective adoptees are fully vetted. If they are in a long-term relationship, their partners are also vetted. Secondly, it seems nonsensical that if a couple have been together for 10, 15, or like myself, 20 years, the relationship can be called "casual". At what point does it look casual?

Those who deploy that argument are suggesting that a marriage of one, two, or three years is more stable than a committed, loving relationship of 15 or 20 years. The logic flies in the face of good common sense.

The second argument that is deployed was used in Grand Committee. It was suggested that if married couples felt that the adoption process was easier, then more would come forward and there would not be a problem. That is burying one's head in the sand. It is a hypothetical solution that does not help the real problem.

There are children in children's homes waiting for families and there is a shortage of people to adopt. That is particularly true of ethnic minority young children, particularly ethnic minority boys. To wish away the problem is to live in an unrealistic world.

The third argument, which I believe the noble Lord, Lord Jenkin of Roding, deployed, relates specifically to same-sex couples. It goes something like this: how will they cope? What will they say at school? How will the children explain same-sex partners? Or indeed, are they at greater risk of sexual abuse in same-sex couples?

I cannot guarantee that children will not be teased in the playground. I cannot guarantee that children will not be teased for being black or for having ginger hair, or for that matter, having single parents. But I return to the remarks of the noble Lady, Lady Saltoun of Abernethy, in Grand Committee: I do not believe that adoption by an unmarried couple or a homosexual couple is in any way the optimum. However, the alternative to adoption in the case of a child who has been in care is so infinitely worse than adoption into a home which is less than ideal that I believe that the risk is justified even if it results in only a handful of children being adopted who otherwise would remain in care".—[Official Report, 11/7/02; col. CWH 232.] Finally, when all the other arguments are defeated, we can always rely on our learned colleagues. We shall hear them later; they can revert to a discussion of definition. How can we define unmarried couples: is it a legal precedent? Let us look at Erskine May or perhaps turn to Rumpole and Pommeroy, because if we speak a different language we may obscure the real issues.

I refer noble Lords to the definition of unmarried couples on page 84. It is non-precedential and it may not be perfect, but let us keep the definition of unmarried couples as drafted and wait for a bigger debate when we can fill hours in the House discussing it.

I do not believe that allowing unmarried couples and same-sex couples to give children in care a loving home does anything to undermine the position of marriage. All it does is to give children greater security in their future and a home. It gives them security that if anything should happen to one or other of their adoptive parents, the other will be there to care for them. I ask noble Lords who seek to support the amendment to think again carefully about its implications; to think of it as an act of kindness and humanity towards children and not as a decision for individuals. For no one has the right to adopt, but every child has the right to a loving home. It is the right of the child that I seek to promote in this debate, not the right of the adult.

4.15 p.m.

Lord Redesdale

My Lords, it is often dangerous to prepare a speech when one follows such an erudite speaker as the noble Lord, Lord Alli. I shall not give the speech I had prepared, but I shall try to be brief. I speak from a belief in the sanctity of marriage and having children through the sanctity of marriage. However, I support the Government's valuable amendments. I speak to them because I have the experience—which I believe to be rare in this House—of having, not adoptive children, but foster brothers, who would have been adopted but remained fostered because they fell into the category of having many problems.

My parents had seven children but they took it upon themselves to foster two more. I believe that that was a good thing to do, but it was not easy. I speak as someone who has suffered the trials and tribulations of having a foster brother come to the family when he was eight and cause so much trouble that he had to leave at 10. My brother James went through 10 foster families. Eventually social services said to my mother, "The only successful family was yours. Can you try again?"

At the time, James was glue sniffing and stealing regularly. He had many problems from birth. His natural mother's boyfriend had beaten him so badly that his skull had caved in and he was left partially paralysed down one side. James had problems, but he came back to us. Through my parents' work he managed to put right his life for the short time he was with us. The important part of fostering and adoption is the right of a child to have parents. James was lucky. I have seen many cases where children end up in the system and never come out of it.

The noble Earl, Lord Howe, referred to predictors and how long marriages would survive. I have been up since ten to four this morning with a teething child. Perhaps the noble Earl can give me an indication of how long my marriage will survive after that. He seemed quite certain of the average time marriages will survive, but none of us who live in the real world can ever say how long our marriage will survive. There is nothing like a teething child to test your marriage. But that, is not the point. I believe in the sanctity of marriage. If two people adopt a child, that child has two parents. Even if the marriage breaks down, for whatever reason, the child will still have two parents. This is vitally important.

The noble Earl referred to predictors. One of the strongest predictors is the large number of people sleeping rough who have been in care all their lives. And the noble Lord, Lord Alli, referred to the large number of people who have been in care who end up in prison. Without the support of a family when leaving care, life can be very difficult. I am fairly sure that my foster brother, Paul, would have ended up in prison because he was having so many difficulties in managing his finances in situations he did not understand; the problems were beyond him. He needed the support of his foster family.

Foster families have no legal obligation to maintain contact. Adoptive parents do. It is important that adopted children, if possible, should have brothers and sisters because they will be there for them for the rest of their lives. Unfortunately, my foster brother, James, is no longer with us, but I cannot turn round to Paul and say, "If you have a problem, do not phone me". He is still my brother. It is a fundamental right. The right reverend Prelate referred to adopted children receiving loving support for the remainder of their lives. That can be given through families.

Perhaps we should look at the other aspect—that is, remaining in care. What have those unlucky children who remain in care throughout their childhood got to look forward to when they leave care? I have heard of people leaving care who have been given the statutory £500 resettlement grant and a goodbye note from their social workers—and that has been it. We are then surprised by what happens to them.

I support the sentiment that in a perfect world a married couple would provide a loving, caring family for those children who do not have a home. However, such people are not queuing up. As many of the children often have multiple problems of their own which are very difficult to deal with, the pool of those who are prepared to provide a loving environment should be widened to include all those parents set out in the Bill. This is particularly important. As has been said, it should be the right of the child to have a loving parent. It is not the right of the parent to have a loving child, but the right of the child to have a loving parent.

Lord Lloyd of Berwick

My Lords, like all noble Lords, I suspect, I have had a huge postbag in relation to this issue, more than I have ever had before. So it is clearly a matter of great general public concern. All the letters have come from individuals, and almost all of them are hand-written. I tend to give much greater weight to those who have taken the trouble to write their own letters. All the letters make the same two points. They say that children are best brought up in a normal family, and they have the same concern about children being brought up by homosexuals.

As to the first point, there can be no dispute: we all agree that children are best brought up in a happily married family and we all agree that if there were enough happily married couples to adopt all the children who need adopting, there would be no problem. I am not talking about babies but about children of the age of 5 years and upwards. It is sadly the case that there are not enough married couples who want to adopt all those who need adopting. There is an acute shortage, in particular, of those who are willing to adopt what one might call the more difficult children. By "difficult" I mean the severely disabled, those who have been seriously traumatised by their upbringing, and even children who happen to be one of siblings. The question before the House is whether we should exclude their chance of being adopted by insisting that all prospective adopters should be married. My answer to that question is a simple no. It is not the case, as the noble Earl was half inclined to suggest, that there is another married couple in the wings waiting to adopt. I wish it were the case, but it is not.

I have had some experience of adoption cases as a judge, but never in the Family Division, which is where all the difficult decisions are made. But the picture I have is, I believe, accurate. One has the prospective adopters there sitting in court. The child will not normally be in court but the judge will have a great deal of information about the child from the social workers, the family welfare officer and various other sources. If he wants more information he will always be able to get it.

What does the judge do in such a case? He is not concerned with what is best for children in general; he is not concerned with the kind of statistics given by the noble Earl, Lord Howe. He thinks—and thinks only—about what is best for that child in relation to those prospective adopters. That is exactly what he is required to do under Clause 1(1) of the Bill.

Let us now suppose that the prospective adopters are a man and woman who are suitable in every kind of way to adopt. They love each other, which is one of the most important things; they intend to stay together; and they mean to love the child. Now suppose the judge takes the view that it is in the child's best interests that there should be adoption by that couple and that the child has a permanent home with them rather than, which may be the only alternative, spending the rest of his childhood in a children's home or with a succession of foster parents. The judge should surely not be prevented from making the adoption order he would want to make simply because the two are not married. He could of course get round the difficulty. He could make the adoption order in favour of one or other of those two people living together—but surely, in passing the Bill, that is precisely the kind of artifice we should get away from and not encourage. It is said that, in some ways, this would undermine the institution of marriage. I do not believe that to be the case for one moment.

Why so many young people choose to live together and bring up children together without getting married, I do not profess to understand. They may have many reasons, none of which, I suspect, I would share. But we cannot compel them to get married, and we cannot—or should not—tempt them to do so by holding out the prospect of being able to adopt if they do get married. I agree with every word that the noble Lord, Lord Jenkin, said on this aspect of the matter. Unless we allow unmarried couples to adopt, as time goes on we shall find that the gap gets ever wider. There will be more and more children, many of the kind I described—

Baroness Strange

My Lords, can my noble and learned friend and the noble Lord, Lord Jenkin, comment on the fact that adoption involves the process of law? Why should a couple be prepared to become involved in the process of law in adopting children but not for themselves as a couple?

4.30 p.m.

Lord Lloyd of Berwick

My Lords, I am afraid that I may not quite have heard the noble Baroness. Even if I had, I am not sure that I would have been able to answer. Perhaps I could try to answer the question later.

As I said, there will be a gap: there will be more and more children in need of adoption who will not in fact be adopted. That is basically the reason why it seems to me that if unmarried couples are willing to adopt such children they should be allowed to do so. I agree with every word that the noble Lord, Lord Jenkin, said on that.

One then comes to the more contentious question of adoption by homosexuals. It is more contentious but, in the end, I do not believe it to be more difficult. I suspect that not many people realise that it has been lawful for single persons to adopt for nearly 100 years, since the Adoption of Children Act 1926. No one suggests that we should change the law in that respect. Still fewer people realise that it is lawful for single homosexuals to adopt, and that actually happens. If you talk to any Family Division judge, you will find that he has made just such an order. Such orders regarding adoption by a single homosexual have been upheld by the highest courts in the land, notably by the Scottish Court of Session as recently as 1997 when the judgment was given by my noble and learned friend Lord Hope.

No amendment has been tabled to add words to the end of Clause 51(1)—the clause dealing with single persons adopting—stating, provided that he or she is not homosexual". The amendment of the noble Lord, Lord Jenkin, does not even purport to cover the single homosexual adopting. So if single homosexuals can and do adopt, what is the precise objection to homosexual couples adopting? It cannot be that they are more likely to abuse the child—if anything, one would think that it was less likely in the case of a homosexual couple.

So far as I understand it, the only objection is the one mentioned by the noble Lord, Lord Jenkin; namely, that the child will have two mothers or two fathers, as the case may be. As that child grows up and goes to school, I readily accept that that is likely to cause him or her difficulties. But if that difficulty is sensitively handled by the adopters, it could be overcome in practice. If the judge is not satisfied that the prospective adopters will be of the kind who are able to handle that question in the way that it should be handled, it is perfectly simple: he will not make an adoption order. The backstop in all these cases is that you have a judge. He is the one who decides whether the adoption is in the best interests of the child, whether the adoption is by a married couple, an unmarried couple, or a homosexual couple.

I now turn to the question of how we should all vote. Until the amendment of the noble Lord, Lord Jenkin, was tabled, there was no amendment to exclude homosexual couples as such from the adoption process. Therefore, unless that amendment is adopted, it is really a case of all or nothing. The arguments in favour of allowing unmarried couples of different sex to adopt are overwhelming. In my view, those arguments should not be displaced by a concern—I accept that there is a concern, but it is unguarded, ungrounded concern—in respect of homosexual couples. I say "ungrounded" because if the judge has any doubt at all about the suitability of the homosexual couple, he will not make the order.

It is always good to return to the facts of an actual case. So, to conclude, perhaps I may give your Lordships the facts relating to the Scottish case to which I referred earlier. It concerned a very seriously disabled child. The prospective adopters were two male nurses living together in a homosexual relationship who were very experienced in dealing with that child's disability. The court held that adoption by that couple was that child's, not best, but his only, chance in life. It seems to me that we should not deprive such children in the future of adoption by such adopters by passing the noble Lord's amendment.

Lord Ackner

My Lords, before my noble and learned friend sits down, perhaps he can help me on a small point. He has sought to adopt what the noble Lord, Lord Jenkin, said. Does my noble and learned friend believe that that amendment would stand up to the challenge in our courts in relation to the human rights legislation?

Lord Lloyd of Berwick

My Lords, I fear that my noble and learned friend has misunderstood me. I am sure that it was my fault. I was not supporting the amendment of the noble Lord, Lord Jenkin, in my remarks; I was simply saying that all the arguments that he advanced in favour of allowing unmarried couples to adopt seem to me unanswerable.

Baroness O'Cathain

My Lords, many noble Lords will be aware that I am taking part in this Report stage of the Bill despite the fact that I did not take part in either the Second Reading debate or in Grand Committee. I do so because, the evening before she died, our late noble friend Lady Young asked me to do so. She had been feeling frail and wished to ensure that the cause of children would not go by default if she had not recovered before today. Your Lordships should note: "the cause of children". Sadly, within 12 hours of my being able to take that concern off her shoulders, she died. It is, without doubt, the most difficult task that I have undertaken in more than 11 years in your Lordships' House. I am so burdened by the determination not to let down that wonderful woman, yet so conscious that, however well I put the case, I shall never be able to do it as well as she would have done. Although I feel burdened, I also feel passionate about the imperative shared by every noble Lord in this House, so ably described by my noble friend Lord Howe, that children in institutional or foster care should be given the chance of being loved and cared for in a stable, secure, safe and permanent home.

This Bill is about children—damaged children, who have had a horrible existence for the first few months and years of their lives. The noble Lord, Lord Alli, said that he was ashamed by the treatment of the Bill in the media. I impress upon him that the only interest for me in this Bill is the security and protection of children.

I remind your Lordships that this Bill is the result of a strong personal commitment of the Prime Minister, who introduced the review on adoption with the words: It is hard to overstate the importance of a stable and loving family life for children. That is why I want more children to benefit from adoption". I agree with every single word. I am sure that all noble Lords will know what happened then. The review of adoption resulted in a White Paper, Adoption: A New Approach, which was followed by the Bill that we are debating today.

The interest of the Prime Minister and the production of the publications that I have just listed have already borne fruit, even though the Bill has not yet completed its progress through Parliament. The fact that the Prime Minister drew attention to the belief that, too many local authorities have performed poorly in helping children out of care and into adoption", has resulted in a very big increase in the numbers of children currently being adopted. From a total of 1,900 in 1997—out of the 5,000 children who are available for adoption each year—the number of those adopted increased to 3,100 in 2001.

As Lady Young said in her powerful Second Reading speech on 10th June (at cols. 30 to 33 of Hansard), the Government's own target is almost certain to be reached. This was confirmed to me by the noble Lord the Minister only yesterday, and it could well be that the target of 3,800 in 2004–2005 will be met this year. I stress that that is out of a total of 5,000 children seeking adoption each year. That is a significant and welcome development.

My noble friend Lord Jenkin said that the solution to the problem of getting more children out of care and into adoption is much too restrictive in the original Bill. But following the procedures set out in the Bill, and following the interest generated by the Prime Minister, it seems that there is not the same concern about so many children remaining in care. In a few years' time, there could well be no children left for adoption each year.

Prior to the Prime Minister's intervention, over 90 per cent of the would-be adopters were either turned down or gave up the process because they had such dreadful experiences of the immensely long drawn-out process lasting up to three years or more. Those who were turned down were sometimes given reasons such as: you are too rich; you are too poor; you are too fat; you live in too big a house; you have too many books; you go to church. When the Bill becomes law, the Government hope—as do we all—that these ridiculous attitudes will be a thing of the past as the processes being put in place should guarantee that many more of those 90 per cent would-be adopters who are either turned down or give up in despair will have their wish fulfilled, and that many more children will be adopted. It is not too far-fetched to envisage a situation where there could be a shortage of children to be adopted.

There is certainly no need to extend the range of would-be adopters beyond the current situation; namely, married couples and single people. Yet that is precisely what the amendment introduced in the other place seeks to do.

I state as an aside that the UK is a signatory to the 1967 European Convention on Adoption, whereby only married couples and single people can adopt. In addition, the European Court of Human Rights recently ruled that homosexuals have no right to adopt. Are the Government aware of those two points, or are they just ignoring international law?

By extending the category of would-be adopters to include homosexual couples of both genders and cohabiting heterosexuals, I contend that the Bill is now being used as an implement of social engineering. Under the Bill, adoption agencies would not be able to give preference to married couples. That removes the status of marriage, no matter what people say, and reduces it to the equivalence of "couples" of the same gender or couples who do not make a permanent commitment to each other. I shall not dwell on the point further as it has been so ably dealt with by my noble friend Lord Howe.

I find it quite amazing that the extension of the range of would-be adopters to include the groups I have just mentioned was not in the Labour Party manifesto, not in the Prime Minister's review, not in the White Paper, and not in the Bill when it was first introduced in the Commons.

What is the justification for amending the Bill in the other place? Is it political correctness? Is it social engineering? Or—perish the thought—is it the permanent downgrading of marriage and the family?

I repeat that it is the children I am concerned about. I am certainly not concerned about political correctness or social engineering. These children do not have a voice. They cannot object to being a pawn in the political correctness game or being a means of achieving social engineering.

The Adoption and Children Bill is a Bill for the protection of children. It up to us—every one of us—to protect them. Let us remind ourselves that these children have never had a chance. Now, as a result of the Bill, they will have a much better chance of being brought up in a loving family situation with both male and female role models. They can begin to experience, enjoy and benefit from a family who love them and treat them as their own. Minority adult groups have a voice. Children do not have a voice.

There are five documented instances of government statements opposing homosexual adoption. Indeed, only last November, the Health Minister, Jacqui Smith, rejected amendments in another place, saying that they would create complex legal problems for children which the Bill could not address. In May this year, the Government did a complete U-turn. Suddenly, the whole process of the Bill has been hi-jacked.

So far as I can establish, no lobby organisation for cohabiting heterosexual couples exists. They certainly do not seem to be pressing for the law to be changed. Most cohabiting couples marry in any case, and if a cohabiting couple feel that they wish to adopt and thereby make a permanent longstanding commitment to a child, why not make a permanent longstanding commitment to each other—thereby offering more permanence and security to the adopted child?

What does the government U-turn mean for the protection of children? All the research shows that children do best when they are raised by married couples. I fear that the Government are ignoring that research.

I wish to refer briefly to two different findings of research. An assessment of primary school children in Australia showed that scores in language skills and mathematics for the children of homosexual couples were 29 per cent and 30 per cent lower respectively than for those with married parents. The scores for the children of cohabiting heterosexual couples were 12 per cent and 11 per cent lower than for those with married parents.

Secondly, married parents are statistically much less likely to abuse their children. A British study found that the incidence of child abuse was 33 times higher among children living with their mother and her boyfriend compared to children living with their biological, married parents.

The noble Lord, Lord Redesdale, gave a searing example of how his foster brother, James, had his skull damaged by James's mother's boyfriend. I know that, for some people, opinion polls set the blood racing—

Lord Hoyle

My Lords, will the noble Baroness give way? Can she add to the information, to which I am listening intently? Can she say what was the score for children who were in care?

Baroness O'Cathain

My Lords, I take it that the noble Lord means in mathematics and language skills. I do not have that information. I shall try to obtain it.

I said that for some people opinion polls set the blood racing. So I shall set the blood racing for about 20 seconds. A recent opinion poll carried out in a very safe, strong Labour-held constituency was taken over a sample of 500 people. Most national opinion polls are taken over a sample of 1,000, so 500 is quite a respectable figure over a small area. The question asked was: If you died would you like your children to be adopted by two homosexual men?". The answers were quite revealing: 71 per cent of the Labour voters said "No"; as did 81 per cent of the Conservative voters; and 65 per cent of the Liberal Democrat voters said "No".

Damaged children need both male and female role models. They need a mother and a father. Homosexual adoption would deliberately place—

Lord Redesdale

My Lords, the noble Baroness cited the example that I gave. Perhaps I did not make it clear that the boyfriend of my foster brother's natural mother damaged him, which was why he was given up for fostering and taken on by the state in the first place. I do not see how that situation would have changed if the couple had been married.

Baroness O'Cathain

My Lords, because I thought it a fairly obvious point—obviously, it was not—I did not state that if a cohabiting couple are allowed to adopt a child, abuse could occur, as happened in the case of James's mother and her boyfriend.

Lord Redesdale

My Lords, I find it interesting that James's mother went on to have five more children, all by different fathers. Most of them ended up in care, but she was never assessed for her suitability as a parent.

Baroness O'Cathain

My Lords, you would say that wouldn't you? Damaged children need both male and female role models, a mother and a father. Homosexual adoption would deliberately place some of the most damaged children in a home without either a father or a mother. Is that in the interests of the child? Is it right that we should forget about the interests of the child in the interests of political correctness? These children know that they are different anyway. Do we want to make them feel even more different? How would they feel if their friends knew that they had either two dads or two mums? It is likely that they would be mocked and made to feel even more different. Of course that is not right, but should we put damaged children in this position?

I also wish to use the quotation used my noble friend Lord Jenkin. On the "Today" programme in November 1998, Jack Straw said: I'm not in favour of gay couples seeking to adopt children because I question whether that is the right start in life. We should not see children as trophies". But, my noble friend Lord Jenkin did not give the whole quotation. Jack Straw continued: Children, in my judgement, and I think it's the judgement of almost everyone including single parents, are best brought up where you have two natural parents in a stable relationship. There is no question about that. What we know from the evidence is that, generally speaking, that stability is more likely to occur where the parents are married than where they are not". It is not a case of increasing the number of adoptions by extending the field of would-be adopters. The Bill as it went to the House of Commons in the first place, following the intervention of the Prime Minister, gives us the solution by making adoption processes more transparent and easy. I support the amendment.

Baroness Gould of Potternewton

My Lords, I rise to support the Bill as it stands and oppose the amendment moved by the noble Earl, Lord Howe, and the noble Lord, Lord Jenkin of Roding. My arguments apply to both heterosexual and homosexual unmarried couples.

Nobody would deny that children thrive best when they are cared for in a loving environment by parents who have a successful and long-term commitment. However, co-habitation is now a normal and prevalent factor. We must face the reality that it is not only unmarried couples who split up; unfortunately, a growing number of married couples do. Every day 650 children see their parents separate or divorce. Today more than 2.5 million children are growing up in a step-family.

It cannot be stated too often that nobody has the right to adopt, be they married or unmarried. I was disappointed by the remarks of the noble Earl, Lord Howe, about assessment, because I genuinely believe that proper assessment is the key to ensuring that only suitable people can adopt.

It is a pity that more people did not listen to the debate in Grand Committee, during which there was an important and thoughtful discussion on the criteria for providing an adopted child with a loving and caring home. The stringent criteria that agencies, social workers and the courts must apply should be based not on marital status but on the ability of adoptive parents to provide stability and permanence for a child or children, just as the noble Earl, Lord Howe, said. However, I disagree with the noble Earl's suggestion—we seem to disagree across the Chamber frequently—that social workers take a subjective view. They do not take a subjective view. The criteria and the adoption process mean that they must take a very objective view before they reach a decision. We must consider the amendments against that background and the guiding principle that the welfare of the child is paramount.

This debate is about the vulnerable child, who would benefit from adoption now, not in some years' time when there may be enough adopting families—I make no apology for repeating statistics and the problems of vulnerable children, because we need more families now. It is about finding a permanent home for older children who are in desperate need of loving care. It is about doing something for the 14,000 children who have been in care continuously for more than five years. It is about providing security for the 5,000 children nationwide, to whom my noble friend Lord Alli referred, who are waiting for a suitable adoptive family.

In all our deliberations we must be concerned for the large number of boys aged five to 10 whom nobody has been prepared to adopt. We cannot ignore the difficulties in placing large sibling groups. It is interesting that nobody mentioned that problem and the fact that 50 per cent of children waiting for adoption need to be placed together with their brothers and sisters, with whom they have close bonds. It is not easy to find families for such children.

Like my noble friend Lord Alli, I shall refer to the comments made in Grand Committee by the noble Lady, Lady Saltoun of Abernethy. She said that remaining in care is one of the worst fates that can happen to any child. How right she is. As parliamentarians we have a responsibility to do everything in our power to ensure that those children can find a loving, caring home as quickly as possible. The problems with local authorities and their bureaucratic procedures were discussed. Of course we want to put those right, and the Bill is designed to make adoption easier. However, that will extend only marginally the number of married families willing to adopt. We must take into account the interesting fact that all the adoption charities believe that the Bill is now right. They believe that there must be a joint legal commitment to an adopted child. That view was reinforced by a recent MORI poll.

5 p.m.

Lord Elton

My Lords, I thank the noble Baroness for giving way. Perhaps I may draw her attention to the Catholic Children's Society, which does not support that view.

Baroness Gould of Potternewton

My Lords, I beg your Lordships' pardon—with the exception of that society.

The view of the other adoption organisations was reinforced by a recent MORI poll which showed that cohabiting couples who are not married are more likely to adopt than married couples; 41 per cent and 25 per cent respectively. However, only 6 per cent of cohabiting couples do so because only one of them can be the legal guardian. The noble Lord, Lord Waddington, asked about evidence which shows that unmarried couples are more willing to take on difficult children. All the evidence shows that that is the case and there is evidence to show that unmarried couples are more willing to adopt. Surely, an environment in which a child is placed where only one partner can be the legal guardian and the other can have no say about the responsibilities of the child cannot be a good one in which to bring up a child.

The situation is even more anomalous for unmarried foster carers who are jointly assessed and found to be suitable to foster a child with joint responsibilities—the law recognises that joint responsibility—and then find that if they want to adopt, only one parent can do so. Let us look at the effects of that on the child—not on the parent and not on us, but on the child. The child may have been living in foster care with loving and caring parents and in a stable environment. Suddenly they find that because they want to provide the child with a permanent home, he or she will have only one legal parent. That cannot be right.

Reference was made to certain matters being perverse. I believe that there is nothing more perverse for the child than suddenly to find that he has lost one of his loving parents because of the law. It must have a destabilising psychological effect. Nor can it be in the interests of the family. Can one imagine the conflict that would occur in those changed circumstances? It is a farcical situation and the child will ultimately lose out.

If a child or young person has only one legal parent and that parent dies, he can be left in legal limbo. The consequence can mean being taken away from a caring and loving environment and being returned to a care home, losing not only the permanent home but one parent from death and the other parent because of the law. Again, that cannot be right. The traumatic effect on the child goes completely against the thrust of the Bill; that the welfare of the child is paramount. I find it difficult to comprehend how anyone can accept and perpetrate such devastating trauma on the child which will almost certainly stay with him for the rest of his life.

There are many occasions in the life of a child where parental consent is required, be it consent to medical care, to schooling, to school trips and other day-to-day but important decisions on behalf of the child. Those decisions should be made collectively as a family. However, if the amendments before us are carried, that will ensure that those decisions remain with only one legal guardian. That cannot be good for family life.

I listened with interest both today and in Grand Committee to points made about the lack of financial protection for the child if unmarried people were allowed to adopt. There is a legal framework that provides protection. Schedule 1 to the Children Act provides considerable protection and gives the High Court and the county court powers to make orders for financial provision and property adjustment orders against either or both parents of the child. Surely, it must be to the benefit of a child to have two legal parents, both of whom have financial responsibility.

In conclusion, I do not believe that all the children's adoption charities—apart from the Catholic Children's Society that has been mentioned—which are urging opposition—

Baroness Blatch

My Lords, the noble Baroness refers to all the children's adoption societies. Does she not accept that if the Bill remains unchanged, the work of the religious-based adoption societies will become unlawful?

Baroness Gould of Potternewton

My Lords, I am sorry that I cannot respond to that point. However, if it does become unlawful, we have a responsibility to ensure that we change the law to make it lawful. I do not believe that one adoption organisation should prevent children from having a stable, loving and caring home. We have the opportunity today to increase the number of vulnerable children who do have that opportunity, but we will lose that opportunity if we support these amendments.

The choice for me is simple: is it not better and right that a child should have constancy and security and the opportunity of a real home than remain in care? The amendments before us will ensure the second option. I am not prepared to accept that and I hope that House will not either.

The Lord Bishop of Chelmsford

My Lords, there is a deep unease among many people in the public domain about the possibility that cohabiting, and especially same-sex, couples might be granted the legal right to adopt a child. Like many noble Lords, I have had more letters about this issue than any other, including hunting!

The Judaeo-Christian ethic clearly emphasises that it is within the context of the committed heterosexual relationship of marriage that the paramount interests of the child are best served. All of us emphasise that it is the children who must be our paramount concern and that has emerged repeatedly throughout the debate. Children are not pawns or trophies. They need and deserve to be cared for and nurtured ideally within a home environment in which the complementarity of the sexes is expressed by a male and female parent.

Having children is one of the three purposes of marriage, universally recognised by all the Christian Churches. The intention is for parents to be as committed to the nurture of their children as they are committed to each other as husband and wife. The "pick and mix" family, now so often advocated, where any configuration of adults will do, is a clear rejection of the very Judaeo-Christian beliefs which pioneered adoption and fostering in the United Kingdom.

I have had long experience of adoption issues. An adopted child has inevitably an inbuilt vulnerability and not infrequently struggles at different points in his or her development with the deeply human questions of identity and belonging. To be adopted into a situation where the couple are not rooted in a commitment to each other, or are both of the same sex, creates all the potential for the child to be even more confused and insecure. It is with that so clearly in my view that I will be supporting the amendment tabled by the noble Earl, Lord Howe.

Earl Russell

My Lords, the noble Baroness, Lady O'Cathain, will not misunderstand me if I join her in deeply regretting that we will not have the opportunity to hear Lady Young today. Lady Young was a parliamentarian to her fingertips. She was as devoted to the procedures by which we reach our decision as she was to her own principles. And that is saying something.

I want to put two questions to the noble Baroness, Lady O'Cathain. First, will she concede that those of us who oppose the amendments today are quite as devoted to the interests of children as those who propose them? We merely see the interests of children in very different ways—in many more different ways than time will allow me to expound today.

Secondly, will she concede that as regards Members on these Benches and, as far as I know, everyone else, this is nothing to do with political correctness or social engineering. Those are things I despise. People, not the state, are generally the best judges of their own interests. That is a fundamental principle behind the philosophy of these Benches. Were I not convinced on those grounds, I would not be saying what I am saying now.

Parliamentary measures tend to get shorthand nicknames. There was a Bill that constantly occupied another place, in the 1580s, which became known as the Bill Against Wednesdays. I know that today is a Wednesday, but I have nothing against that. However, these amendments should be known as the amendments against couples. As the noble and learned Lord, Lord Lloyd of Berwick, explained very clearly, it is perfectly legal for a single homosexual to adopt or for a single member of a cohabiting couple to adopt, but not for the two of them to do it together. That can only cause confusion.

I remember, when I was about 10, being struck down by appendicitis. The doctors decided that it was necessary to operate that night. They flashed a message on the screen at the nearest cinema—which, being in north Wales, was 40 miles away—to fetch the surgeon. The operation took place at midnight. I was assured the next morning that I would have been dead by then had the operation not been carried out. Medical people are rather careful about falling into legal traps. Had there been any doubt whether either of the people in charge of me was entitled to sign a medical consent form, I might not be addressing your Lordships now.

It is, I know, possible for the partner of an adoptive parent to apply for a parental responsibility order under Section 8 of the Children Act. However, that is a temporary order that may be withdrawn. Moreover, parental responsibility is governed by case law, which means that it is subject to change at any time. It is, I think, very much better to have two people in charge who are both clearly in a legal position of authority. Otherwise, we may find someone saying, "I'm sorry, darling, you know I cannot sign it, and Mummy is on the Front Bench". That is going to cause a good many problems.

I was interested in an article in this Sunday's Observer by Maureen Freely. She remarks: In 1974, when I left university, it still raised eyebrows to live with someone before marriage. Now it's the norm, and the norm most people accept". She further said: If marriage is not the all-defining and confining institution it once was, it's not just because a generation of Seventies upstarts decided to change the rules. It's also because the legal and economic underpinning have changed beyond recognition. When marriage ceases to be the only way a woman can find her way in a world, when men no longer can or wish to treat women and children as chattel, when the penalties of divorce are no longer as cruel and inhumane as they used to be, relationships become defined by the degree and the quality of the personal commitment". I heard what the right reverend Prelate the Bishop of Winchester had to say about the ecosystem. I think that the ecosystem was changing before the changes in the habit of cohabitation came in. I think that contraception changed sexual relations as permanently and as inevitably as nuclear weapons changed the nature of war. I think that there is no going back on that.

When I talk to my female pupils, I realise that there is nothing in the world harder to understand than the time just before the time when one was born. I simply cannot bring them to conceive of a world in which women have the sort of total economic dependence on a man that used to be normal even when I was young. This means that there must be an element of choice in marriage which was often not there before. It also means that there must be, as Maureen Freely remarks, a concern about quality. That is why I make no apology to the noble Earl, Lord Howe, for using anecdotal evidence—because one cannot measure quality by quantitative evidence.

I entirely agree with what the noble Earl, Lord Howe, had to say about the virtue of permanence: it is very great. However, it is not the only virtue. According to John Chamberlain—the Matthew Parris of the 17th century—James I and his wife lived together "as well as a couple who do not converse can do". They gave their children permanence; it did not seem to do Charles I very much good. As well as permanence, we need love and we need peace; not only love for the child, but also the example of love between the parents. Where those things are absent, the child is losing something which is in my view quite as precious as permanence.

Many statistics have been produced by the noble Earl, Lord Howe. I think that the question between those who marry and those who cohabit is whether we think it better to have a bad marriage or none at all. That is a question on which there may be two opinions, but I do not see a research method of testing them. How is one to collect the sample of bad marriages on which to do one's research? Who is going to admit to belonging to it? I grant that people brought up in happy households are likely to do better than people brought up in unhappy households, but I do not understand how one brings that to bear on the evidence on whether the ceremony of marriage is in the interests of children.

The noble Lord, Lord Jenkin of Roding, alleged that there was no research at all on the effect on children of homosexual couples. That is not in fact the case; there is a fairly considerable body of research. It was reported by Professor Gottman in 1999: Studies on children of lesbian mothers and gay fathers report no negative effects on children relative to their parents' sexual orientation. Children did not appear deviant in gender identity, sexual orientation and social adjustment". Being gay is not contagious. The fact that, by definition, all gay children are children of straight parents would seem to me to be evidence to support that point of view. In so far as there is trouble, it is the result of stigma. Those who complain of the effect of stigma and use it as an argument against change are showing the inability of the unanalytic mind to recognise its own handiwork. I except the noble Earl, Lord Howe, from that—he has not used that argument today; but others have. It seems to me that it is inevitably a disadvantage to have a type of loving relationship that one cannot avow proudly and in public. If one thinks that children brought up by homosexuals are at a disadvantage, the way to remedy it would be to allow their parents to avow their love proudly and in public.

We have had opinion polls quoted. I do not believe that I am the only person in this Chamber who was brought up on Burke's address to the electors of Bristol. He said that a Member is not a delegate but a representative and that he owes his constituents not only his attendance but his judgment. If that is true in another place, of which Burke was speaking, then a fortiori it must be true here.

Finally, children need to be brought up by somebody or something that can hear them. There are two cases, at least one of them fictional, of children brought up by wolves: Mowgli in The Jungle Book and Romulus in Rome. We are not proposing anything as shocking as that.

5.15 p.m.

Lord Davies of Coity

My Lords, I rise to support the amendments from this side of the House. I do so in the knowledge that there are many on these Benches who will think that I am guilty of offending what is described as political correctness, a concept that I have never fully understood. I have always been driven by what I understand to be right and wrong.

I start by stressing—as many other noble Lords have done—that my sole concern in the Bill is unequivocally the interests of the children who are the subject of our deliberations. My only interest in adults, whatever their status, concerns the way in which their circumstances will serve or not serve the interests of children who will benefit from adoption.

This Bill was primarily introduced by the Government for the purpose of removing obstacles and unnecessary difficulties that married couples confront when preparing to adopt. That bureaucracy and red tape have meant, unfortunately, that far too many children have been left in care homes when they could otherwise have been settled into a family environment which, as we all know, is most likely to be to the children's ultimate benefit. However, what the Bill, when originally drafted, did not do was to extend the rights of those entitled to adopt. That right has been introduced by Back-Bench amendments in the other place, as we all know.

It is significant that the Government, when introducing the Bill, saw fit to continue to apply the current provisions whereby adoption is largely, although not exclusively, limited to married couples. In the 1998 Green Paper on the family, the Government stated: Marriage is the surest foundation for raising children". With that I agree. However, because of the changes made in the other place, the Bill before us makes it permissible for homosexual partners and unmarried heterosexual partners to adopt on the same basis as married couples. It is those provisions that I wish to challenge, not because of those adults' status with regard to one another—that is their business—but because of the way in which their status will impact on the interests of the children with whom we are all concerned.

I stress that I have no quarrel with the principle of the other place carrying amendments as it has done—that is its democratic right. But I also believe that it is the democratic right of your Lordships' House to return the Bill in that respect to what the Government originally proposed, and that will be done by supporting the amendments we are discussing.

I am sure that we all appreciate that whatever we do there is always a risk to these children. Indeed, unfortunately, we read every day of the risk and danger faced by far too many children born naturally to married couples. But, as I see it, our job is to reduce, as far as is humanly possible, the extent of risk that the children with whom we are concerned are likely to be confronted—I refer to physical and psychological danger—and perhaps above all to ensure that when a child is taken from care he or she does not jump out of the frying pan into the fire. We may not always get it right but we can certainly do our best to limit as far as possible the extent of risk to be faced, not by us in this House, but by countless already deprived and underprivileged children. It is because of the degree of risk which I believe to be involved that I support the adoption provisions being limited in the main to married couples. I shall try to explain why.

First, I shall deal with the question of heterosexual partners who are unmarried but living together in what appear to be very stable relationships. Indeed, it will be observed that many such relationship are as stable, if not more stable, than many marriages. I have no doubt that that is true in some cases. However, what does the evidence tell us? The Office for National Statistics has found that cohabiting couples are six-and-a-half times more likely to split up after the birth of a child than are married couples. The study found that 52 per cent of cohabiting couples had split up five years after the birth of a child whereas only 8 per cent of married couples had done so. I refer to a six-and-a-half times greater risk factor as regards cohabiting couples. If that is the evidence concerning naturally born children, what would be the level of risk for an adopted child in those circumstances? I suggest that it would be much higher. In my view that is a risk to which adopted children should not be subjected.

The evidence from the Office for National Statistics convinces me that in the main those couples who demonstrate a commitment to each other through marriage are likely to have a much stronger commitment to an adopted child than would cohabiting, heterosexual couples. So why take the risk? If a couple are sufficiently committed to each other, they can marry and be entitled to adopt. But why should we risk the future of a child if such adults are not prepared to demonstrate such a commitment?

I earnestly and deeply believe in family life. Until my wife and I married 43 years ago, she worked as a trained nurse in children's care homes. Since we married, we have, fortunately, had four daughters, all of whom are married and were married before they had children. Each daughter has two children and therefore I have eight grandchildren. I observe at close hand how much my grandchildren benefit from a stable family environment. I have no doubt that marriage is the foundation for a stable family environment. I believe that an adopted child is entitled to no less than that and that that is what our laws should provide for.

From the evidence before us I know that it would be wrong to take unnecessary risks. It would be unwise and cruel to take the risk of placing already hurt and sometimes damaged children into circumstances where they are more likely to suffer even more hurt. Therefore, I shall vote for the amendments that remove that possibility.

I turn to the part of the Bill which makes it possible for homosexual and lesbian couples to adopt on an equal footing to married couples. From what I have said, your Lordships will know that I find such a provision wholly unacceptable. However, I wish to stress that this Bill is not, and should not be, about the rights of homosexuals and lesbians; it is exclusively about the interests of children born of men and women and who for one reason or another have been deprived of that family unit. It is our task to try to return them to a stable family unit. Many children in care homes, some from a very early age, will have become confused by their experience of the unfortunate circumstances they have had to face. It seems clear to me that placing those children with homosexual or lesbian couples can only add to their state of confusion.

Many others can quote chapter and verse, and have done so, on why the provision in the Bill should be removed. Therefore, I shall limit my comments to two aspects. First, I believe that the best possible environment for a child is with a father and a mother. I understand that there are 11 million married couples in Britain today. Of course, we cannot legislate for every child to live with a father and a mother, but where we can I believe that we should. We can do that in respect of adoption. A small child understands the concept of a "mummy" and a "daddy". In my view both the mother and father have important roles in forming a child's development. Over the weekend I read an interview conducted with a homosexual couple in America, one of whom had fathered a child by artificial insemination with a surrogate mother. When one of the homosexual partners was asked what the child called him, he replied, "mummy-daddy". It seems to me clear that in such circumstances that child will grow up feeling very confused, particularly when among his or her friends or classmates.

Secondly—it is perhaps a secondary issue—there is the question of sexual discrimination. If the Bill is not amended, there will be law in this country in the field of adoption which makes married couples and homosexual couples equal. Therefore, they should be treated equally under the law.

Let us imagine that a married couple and a homosexual couple make applications to adopt and that the married couple are given the child on the grounds that marriage is the best environment in which to bring up a child. Is not the homosexual couple entitled to claim that they have been sexually discriminated against? Such a situation may need to be tested. But should we not guard against the likelihood of a child being caught up in such a mess? We should support the amendment, which removes the entitlement of homosexuals and lesbians to adopt. By doing so, we should certainly avoid such a difficulty.

In conclusion, I was going to quote what the Home Secretary, Jack Straw, said on 4th November 1998. I support all that he said, and I believe that his comments support my argument. However, as those words have been quoted time and time again today, I shall not do so.

5.30 p.m.

A noble Lord

My Lords—

Lord Williams of Mostyn

My Lords, I believe that it is the turn of the Cross Benches.

Lord Ackner

My Lords, I apologise to your Lordships for being so slow on the draw. I was anxious to ask the noble Lord, Lord Jenkin of Roding, just how much confidence he had that his amendment would not be fatally challenged in our courts under human rights legislation. However, I missed the opportunity to do so because someone set out on a speech. Therefore, I use the excuse with my noble and learned friend Lord Lloyd of Berwick to ask him, since he embraced forensically the noble Lord, Lord Jenkin. He did not seem to be able to answer that question or wish to answer it. In any event, the noble Lord, Lord Jenkin, will have time to reflect on the matter and we shall have the benefit of his view. He has obviously considered the problem deeply because he addressed us at some length.

The key to resolving the issues raised by this debate is surely to be found in Clause 1(2), which reads: The paramount consideration of the court or adoption agency must be the child's welfare"— I stress the final three words— throughout his life". Therefore, we are all concerned—or should be—that, beyond all else, we must safeguard and advance the security and stability of the children who seek adoption.

In my submission, it is terribly important to keep in focus the legal position as it existed up until May of this year, when the amendment was introduced on Report in another place. As the law then stood, no one is legally excluded from consideration for adoption. Whether one is married or unmarried, cohabiting or single, gay or lesbian, young or old, or black or white, one is legally entitled to adopt. That was, of course, fully appreciated by the Government and clearly set out by the right honourable Mr Lilley, who had been Secretary of State for Social Security in the Conservative government. I refer noble Lords to col. 991 of Commons Hansard for 16th May.

In 1967, Britain signed up to the European convention on the adoption of children, which permits only married couples and single people to adopt. In the Adoption Act 1976, joint adoption could be carried out only by a married couple. Some 95 per cent of all adoptions are by married couples. The 1976 Act provided that single people could also adopt, and they made up the remaining 5 per cent.

The Government were also doubtless aware that the majority of European countries allowed joint adoption only by married couples. Some countries have introduced partnership schemes to recognise unmarried couples. However, most of those schemes specifically exclude joint adoption. For example, in the past decade Denmark, Norway, Iceland and Sweden have legalised same-sex domestic partnerships, extending to registered partnerships many of the social and economic consequences of marriage.

However, while all those countries have a reputation for being "progressive", in sexual and family matters they are certainly not permissive when it comes to child rearing by same-sex couples. Adults are not free to do as they wish in regard to children or to subject children to the effects of atypical adult sexual preferences. In Iceland and Denmark, same-sex couples may not in general adopt a child but, if one partner already has children, his or her registered partner may adopt them. In Swedish law, adoption and joint custody for registered same-sex couples are excluded. In Norway, same-sex registered partnerships may not adopt.

The Government's adoption review concluded that joint adoption should be limited to married couples because adoption by a married couple is more likely to provide the stability and security that the child needs since married couples have made a joint, publicly recognised legal commitment to each other. It also concluded that marriage provides for mutual, legal and financial obligation, and, importantly, in the event of divorce, the couple must be prepared to have plans for the future of their children scrutinised by the court. It is of course vital to bear in mind that there is currently no provision in law to protect the child's interests when unmarried couples separate.

Cohabiting couples can, of course, marry at any time and some 60 per cent of cohabitees go on to marry. The red-hot figures are that the relationships of only 4 per cent of cohabitees are expected to last for more than 10 years. I refer noble Lords to the latest British household survey, covering 10,000 persons.

Although, according to the general household survey, homosexual couples make up only 0.2 per cent of households, there is never-ending pressure to equate cohabitation with marriage and homosexual relations with heterosexual relations. The homosexual lobby seeks not merely to obtain tolerance of what to some of us appears to be an unpleasant perversion, but positive approbation. As Jack Straw pointed out, we are not concerned with homosexual rights, and there is no question of children being treated as trophies.

We must always bear in mind that we are concerned largely with the adoption of older children in care, who are highly vulnerable; we are not concerned with babies. For those children, a stable relationship and a secure environment are essential.

It is not at all clear why the Government have performed a U-turn on this issue; I hope we shall hear why. On 23rd April 2000 a Downing Street spokesman, presumably speaking on behalf of the Prime Minister, said: There are no plans to change the law to allow gays to adopt. This is about finding loving families to adopt children". As recently as November 2001 the Health Minister, Jacqui Smith, stated that: joint adoption should remain limited to married couples on the grounds that…a married couple was more likely to provide the stability and security that the child needed".—[Official Report. Commons Special Standing Committee, 29/11/01; col. 383.] Last year 300 single people adopted children. There is no evidence to support the idea that a significant number of people are put off adopting by the legal position which existed before the amendment, or that the Commons amendment will significantly, if at all, increase the pool of intending adopters.

I should like to conclude my observations by quoting the noble Baroness, Lady Scotland of Asthal, for whom I have a special regard and, indeed, as a fellow Bencher of the Middle Temple a special affection. She said in the debate in Committee on the Justice (Northern Ireland) Bill: we are wary", that is the Government, about putting through Parliament legislation that commits us to an idea that has not been tested. One of the duties of government is critically to assess changes that are proposed by interested groups".—[Official Report, 11/6/02; col. CWH 7.] The Commons amendments we have been discussing do not pass that test. As has been pointed out, they will result in married couples losing their priority because in order to hold the balance even and prevent litigation there will be occasions when homosexuals—I use that term to cover lesbian and male homosexuals—and those who live together without being married are given priority to ensure that there is no allegation of unjustified preference.

Earl Russell

My Lords, the noble and learned Lord said that we should be wary of putting through Parliament ideas that have never been tested. That argument has been used against every major change from the great Reform Bill onwards. Does the noble and learned Lord agree that there is sense in the observation of Edmund Burke that whatever now is established once was innovation?

Baroness Blatch

My Lords, I shall be brief. My noble friend Lord Howe opened the debate with an excellent speech. He dealt with statistics to support his case, which I shall not repeat. I share with my noble friend his reservations about any assessment that could possibly declare an unmarried couple as having a long-term, enduring, loving relationship.

I am also concerned, if the Bill extends adoption of children to gays, lesbians and unmarried couples, about the consequences for many of the church and other religious adoption societies. Despite the comments of the noble Baroness, Lady Gould, there is no putting this right after the Bill is passed. If it remains unchanged the work of those societies becomes illegal. What of a conscience clause for those who do not agree with such an extension of adoption rights? Would they be forced to accept the legal position or walk away from the field of finding placements for these vulnerable children because their conscience was not allowed for in the legislation?

Dr Joy Holloway made a contribution to this debate from her position as a specialist in paediatrics. She has had much experience of adoption in her professional capacity by producing a paper entitled Homosexual Parenting: does it make a difference? A re-evaluation of the research with adoption and fostering in mind. Dr Holloway has shown great courage, for which she has been subjected to unacceptable criticism and harassment from her employers for simply exercising her right to free speech when she made the case, supported by much scientific evidence, which supports the amendments of my noble friend Lord Howe.

I agree that a heterosexual unmarried couple who wish to adopt a child should make a legal commitment to each other through marriage which in turn would offer a more secure future to the adopted child. Too many of those who oppose my noble friend Lord Howe do so on the basis of the right of gays and lesbians to adopt and/or the right of unmarried heterosexual couples who are not prepared to make a legal commitment to each other, let alone to the child. They choose to ignore all the evidence, some of which my noble friend cited today to support his case.

So many of the children available for adoption are already emotionally bruised and, as the right reverend Prelate the Bishop of Chelmsford stated, very vulnerable. It is therefore essential that they are given the best possible chance of a long-lasting, secure and loving relationship with a mother and a father.

Finally, I missed the tributes in this House to my noble friend Lady Young. I am proud to follow in my noble friend's footsteps. I shall try to bear any derision or ridicule, to which my noble friend was subjected by some of her opponents for holding strong and particular views of marriage and child protection, with her dignity and determination. My noble friend's work remains a beacon for many of us. It is in her memory and because I support the case made so powerfully at an earlier stage of the Bill by my noble and late friend Lady Young that I support my noble friends Lord Howe and Lady O'Cathain, who only a few hours before our noble friend died undertook to carry on her great work.

5.45 p.m.

Baroness Gibson of Market Rasen

My Lords, we have been deliberating today as if adoption by single-sex couples does not currently exist; it does. Knowing that, and knowing that some councils have policies in relation to adoption by single-sex couples, I want to share briefly with the House the findings of one council.

Gateshead Council has been recognised for its work in relation to the adoption of children by being awarded the Beacon status, which is given for successful placing of children for adoption. Its placements have trebled in the past three years. Gateshead Council does not place emphasis on the sex of those applying to adopt, but on the stability of a couple's relationship. If any couple applying have had a series of short-term relationships, they would not be considered appropriate to adopt. The council would want to know, for example, how couples see their commitment to each other, how decisions are made within their partnership and whether partners support each other and meet each other's needs.

Gateshead Council has already approved adoptions by single-sex couples whereby one of the couple has adopted and the other has taken out a parental responsibility order under the Children Act. However, Gateshead Council believes it would be far better for all concerned for the single-sex couples to be equal partners sharing their commitment to the child equally from the beginning.

Like other councils, Gateshead is short of those wishing to adopt. It believes that single-sex couples in a stable relationship and single people should be able to adopt. As Jane Gray, the team leader of the family support services, told me: We need to attract more adopters. We have a wide range of children needing parents and therefore we need a wide range of adopters. The most important thing is not their sex but the commitment to the child". I believe that those words, from someone closely involved with adoptions day by day, are both wise and worthy.

Lord Hooson

My Lords—

Lord Campbell of Alloway

My Lords—

Lord Williams of Mostyn

My Lords, I do not think that there is any purpose in both your Lordships speaking at the same time because we shall lose the benefit of both. I think that it probably is the turn of the noble Lord, Lord Hooson. There is a feeling—I do not know whether or not it is accurate—that there has been a good deal of discussion and that after the noble Lords, Lord Hooson and Lord Campbell of Alloway, we could perhaps move to the three concluding speeches. I do not say that in any way to curtail debate—it is not within my gift—but I think that there is a general feeling that most points of view, if not all, have been amply ventilated.

Lord Hooson

My Lords, although I took an active part in the Adoption Act 1976 in another place, I had decided that, following early discussions on the Bill when I was convinced that events had so changed between the passing of that Act and the introduction of the Bill, I did not have a contribution to make. I had been much more concerned as a family with an immediate family and a much wider family, which, between us, had a great experience of adoption. I decided that really the problem at the present time was something different.

I want to point out that I think we may be getting the worst of all worlds with the Bill. The main objective is to deal with those unfortunate youngsters in care. Anyone who has read, for example, the Waterhouse report realises what an enormous problem it is. But this is not just a Bill about children in care and how to deal with them, it is about adoption. This Bill deals with the whole concept of adoption—for example, the adoption of the very young child—which will be governed by the Bill in the future.

I therefore want to ask the Government whether they have given proper consideration to what really happened when their proposals were derailed in the Commons. Although I disagree with much of what the noble Earl, Lord Howe, said, I think he was right about the danger of the Bill creating a platform of legal equivalents. It is not limited to the immediate problem of dealing with children in care and rescuing them from their terrible state; it also deals with adoption in the longer term. There is a serious problem if it is not spelled out in the Bill that we in this House and indeed elsewhere in the country do not regard these concepts as legal equivalents.

I think everyone is agreed that an adopted child needs exactly the same as a child of any other family—love and security. The security part of it is very important. What is happening here is that enshrined in this legislation will be the idea that married couples, unmarried couples and homosexual partners are on an even plane so far as concerns the Government and the community. Whereas we are all agreed—or nearly all agreed—that it is much better if a child can be adopted by a happy, settled family and given love and security. I agree entirely with the noble Lord, Lord Jenkin, that if that cannot be secured of course the child should be adopted by an unmarried couple who live together and who have a good relationship.

I would not exclude the homosexual pair. For example, in the case in Scotland referred to by the noble and learned Lord, Lord Lloyd, it would be terrible if the two people of great individual standing, having great compassion for a permanently injured child, had not been allowed to adopt. So there are certain circumstances where there should not be total exclusion. On the other hand, it should not be spelled out in a Bill of this kind that these three statuses are legal equivalents. That is the weakness of the Bill.

I was hoping that I would not have to speak at all on this matter. But I am convinced that we are letting ourselves in for a great deal of future trouble. Experience tells us that pressure groups are bound to use the actual spelling out of these powers in the Bill. And, if I have any experience of pressure groups, they will eventually insist on a quota. I do not think that we should allow this circumstance to occur.

At the same time, the Government have to deal with the short-term problem of the disadvantaged in care. I believe that this is best dealt with by encouraging parents to adopt and making sure that they have financial and local government support in their areas. Many people in straitened economic circumstances, who would often make good adoptive parents, are afraid of the financial implications. I believe that the Government need to think out the matter more clearly before the Bill returns to the Commons.

Lord Campbell of Alloway

My Lords, I shall be brief. I oppose these amendments for the reasons—tight, authoritative and stemming from a knowledge of what goes on at the coalface—given by the noble and learned Lord, Lord Loyd of Berwick. Few other speakers have that advantage or experience. I suggest, with respect to your Lordships, that they carry a peculiar weight and authority.

Before we enter the Lobby there is a matter that has not been mentioned. The status of unmarried couples, in context with adoption, was judicially recognised by the Court of Human Rights in the Republic of Ireland case in 1994, albeit the relationship had been dissolved. The other matter which your Lordships might take into account is that last September the constitutional court of South Africa made an adoption order in favour of a lesbian couple of good standing who had lived together in a stable relationship for 10 years.

Your Lordships may also wish to take account of the fact that the exclusion of homosexuals and unmarried couples as adopters is discriminatory and incompatible with Article 14 of the Convention on Human Rights; it would be read down by the judiciary. And if these amendments were to commend themselves to both Houses, Parliament would have acted in vain.

Baroness Uddin

My Lords—

Baroness Strange

My Lords—

Lord Clement-Jones

My Lords—

Baroness Andrews

My Lords, with respect, the Leader of the House made it clear that after the speech of the noble Lord, Lord Campbell of Alloway, we should hear from the Front Benches. I believe that we should respect that.

Lord Clement-Jones

My Lords, we have heard a number of thoughtful and indeed moving speeches. It is a subject on which many Members of this House feel passionately; hence, the quality of the debate. We are not disunited completely about the aims. We may disagree about some of the means. However, the fundamental principle which I believe is common ground, for the purposes of the Bill, between all Members of the House is that in adoption cases the welfare of the child should be paramount. Indeed, that is set out in Clause 1 of the Bill. No one in the debate suggested disturbing that, or impugned anyone's good faith as regards that intention.

At the same time, it is agreed that large numbers of children presently in care would benefit from placement with a family. As we have heard, there are currently some 55,000 children in care, and the British Association for Adoption and Fostering reckons that at any one time there are up to 5,000 children waiting for new families.

I strongly support the Government's target of increasing the number of children adopted from care by 40 per cent by 2004. But I am not as optimistic as the noble Baroness, Lady O'Cathain. This will be achieved only if we widen the potential pool of adopters. In fact, the BA AF survey last year established that unmarried couples are twice as likely as married couples to consider adopting.

The Law Society, of which I am a member, pointed out cogently in its letter to Peers that the Bill improves the life chances of more children by widening the pool of potential adoptive parents. Although we can bandy about surveys, about 2,000 people were covered in those I mention. The polls are far more authoritative than any single constituency poll. Research carried out last year by MORI for the BAAF showed that 68 per cent of those surveyed agreed that unmarried couples in stable long-term relationships should be eligible to adopt jointly. Just today, a sample of 1,800 people surveyed in England and Wales demonstrates that 44 per cent of adults believe that the law should be changed so that gay and lesbian couples in stable and long-term relationships should be allowed together to adopt a child. That is the current state of authoritative opinion polls.

That is precisely the view of the overwhelming majority of adoption organisations. However, under the current law such unmarried couples, whether heterosexual or same sex, are denied the right to adopt as a couple. Only one of the couple may do so with all the disadvantages that that brings. The key issue for those debating these amendments is whether or not it would enable more children presently in care to come out of care and enjoy the benefits of living in a family relationship.

The right reverend Prelate the Bishop of Winchester and the noble Earl, Lord Howe, raised the issue of discrimination against marriage and married couples. The noble Lady, Lady Saltoun of Abernethy, has been quoted by a number of noble Lords. In Committee—I wholeheartedly agree with her; she has been a rich source of quotation today—she said that, the Bill is not about propping up the institution of marriage, but about getting these wretched children out of care and into families".—[Official Report, 11/7/02; CWH 238.] I do not believe that anyone in this House could put it better. It is not about discrimination against married couples.

Let us take point by point some of the issues raised today. In his extremely authoritative speech today, the noble and learned Lord, Lord Lloyd, and my noble friend Lord Russell drew attention to the present law on fostering and adoption. Some noble Lords present today may object to a lesbian or a gay man adopting a child. But for many years the law has not made that objection and this position has been confirmed in two significant recent cases in the Court of Appeal in England and Scotland.

Guidance under the Children Act on fostering placement also makes clear that same sex couples may apply to foster and further recognises the needs of "gay young men and women in care". I have here a letter from a gay couple who are fosterers themselves. They say that as a gay couple and as experienced local authority foster carers they have always been puzzled by the distinction made between adoption and fostering as far as concerns their suitability as carers. That puzzlement is shared by a large number of people in this country.

The sexuality of potential adopters is not, therefore, the issue. The major childcare and adoption agencies now accept same sex adoption. Those include Barnardo's, NSPCC, NCH Action for Children, BAAF, and the Children's Society. How would joint parental status assist the welfare of the child? There are some who believe—we have heard today from many of them—that the status quo should remain: that single people adopting is preferable to couples adopting where they are unmarried or a single sex couple. But the paradox is that if the status quo remains it would inevitably at the very least lead to a child having a lopsided view of those caring for him or her. At the worst, it would seriously disadvantage that child.

There are a large number of occasions in the life of a child where parental permission is required. My noble friend Lord Russell mentioned one. Most significantly they relate to medical treatment, schooling, school visits, bank accounts and religious instruction. Where only one parent is legally entitled to make those decisions how can the child be expected to understand? Indeed, how can the child be protected? Perhaps even more important, the member of the couple who is not the adopter will not have any legal and enforceable financial responsibility for the child. Furthermore, if a child or young person has only one legal parent and that parent dies they can be left in a legal limbo. How can any of that be preferable to adoption by a same sex couple?

The noble Earl, Lord Howe, raised the question about whether children placed with unmarried couples lack financial and other protection. The noble Baroness, Lady Gould, dealt cogently with the issue. It is sometimes assumed in the debate that there is no legal framework to protect the financial or other interests of children who have been adopted by an unmarried couple. That is not the case. As the noble Baroness mentioned, Schedule 1 to the Children Act provides a perfectly satisfactory framework for that to take place.

The noble Baroness, Lady Blatch, asked whether a specialised voluntary adoption agency—whether Christian or other denomination—would be forced to accept unmarried applicants. Voluntary agencies can, of course, have their own policies and cater to particular sections of the community. The national adoption standards regulations make clear that adoption agencies can cater to particular sections of the community and have a preferential policy according to religious beliefs, provided that those policies are explained to prospective adopters and that applicants not falling within the criteria can be referred to another agency. There will be no requirement for any agency to accept, for instance, applications from same sex couples if that is contrary to the practice and principles of that organisation.

How can the long-term stability of a relationship be assessed? I believe that the noble Earl, Lord Howe, was deeply pessimistic about the eligibility and assessment process. It is common ground that children thrive best when cared for by parents who have a successful long-term commitment to each other. The high divorce rate, however, demonstrates that a marriage certificate cannot be used in every case as evidence of such a long-term relationship. Whether or not those who argue that married couples are more likely to stay together are correct, the question that the courts and adoption agencies must consider is whether the particular couple applying to adopt have, and will continue to have, a stable relationship.

Therefore, I welcome the proposals in the Government's consultation paper, Adopter Preparation and Assessment and the Operation of Adoption Panels. We believe that it may be helpful to have a benchmark concerning the minimum length of a relationship. However, the proposals on assessing relationships in the BAAF form are extremely helpful. The proposals set out in the consultation paper provide good grounds for being able to assess that suitability.

Is there any evidence that children growing up in lesbian and gay families experience social or educational disadvantage? The question was raised by the noble Baronesses, Lady O'Cathain and Lady Blatch. We could trade research back and forward, but the most recent research—my noble friend Lord Russell referred to some of it—does not show such disadvantage. Of course, there may be some discrimination in the schoolyard, but we no longer accept that racial abuse can be tolerated in schools and we should insist that children are brought up not to talk about gay people or lesbians in derogatory terms in the schoolyard. We have a responsibility to ensure that we have the right culture in our playgrounds. We should certainly not use that as an excuse or argument for not allowing adoption by gay couples.

My final point in response to the debate concerns the European Convention on Human Rights. I had hoped that the noble and learned Lord, Lord Ackner, would deal with that in his speech and answer his question to the noble and learned Lord, Lord Lloyd of Berwick. Our information is that to exclude same sex couples from the opportunity to adopt would breach the principle of equal treatment under Articles 14 and 8 of the convention. Indeed, a recent case in the South African Constitutional Court, which applies a similar convention to ours, has found that that would breach the equality guarantee. So, if the amendment—and certainly the amendment tabled by the noble Lord, Lord Jenkin of Roding—is passed, we will have problems under the convention.

In conclusion, adoption law should not used as a cover to promote the importance of marriage. If we succumb to that temptation, the effect will be to deny children the opportunity of an equal relationship with both of the people who are caring for them and to discourage couples who would otherwise come forward as adoptive parents. We should not tar every unmarried couple with the same brush on the grounds of some statistical, discriminatory precautionary principle. In the words of the noble and learned Lord, Lord Lloyd, they should have that chance. They must be assessed as suitable, but they should have that chance.

In assessing eligibility, it is not couples' legal status that matters but the quality of their relationship with each other and with the child. It is a question not of whether they are married but whether they will be loving, supportive, committed and responsive to the adopted child and provide a stable family background. Those are positive qualities. Other countries in Europe, notably Sweden, Denmark and the Netherlands, have woken up to the benefit for potential adoptive children of allowing adoption by unmarried couples—both heterosexual and same sex. We should follow their example, and I hope that your Lordships will not support the amendment.

Lord Hunt of Kings Heath

My Lords—

The Lord Bishop of Durham

My Lords, before the noble and learned Lord sits down.

Lord Williams of Mostyn

My Lords, I think that we have already agreed.

6.15 p.m.

Lord Hunt of Kings Heath

My Lords, the noble Baroness, Lady O'Cathain, spoke with eloquence of Lady Young. I echo her tribute and deeply regret that Lady Young is no longer with us to debate the Bill. On Second Reading, she spoke of her views on the question of unmarried couples. I doubt that any noble Lord who was present for that debate can be in any doubt as to what those views were.

The noble Baroness also spoke of the importance of the Bill and in favour of the core principle at its heart: that adoption offers much to many vulnerable children. As she said on Second Reading, we can all welcome the principle that there should be more adoption as being in the best interests of children.

There should be no doubt that the Bill presents the opportunity dramatically to improve the life chances of many thousands of vulnerable young people in years to come. As several noble Lords said, the outcome for children in care compared to other children is at best poor and at worst catastrophic. The noble Lord, Lord Redesdale, put his finger on that point. Half of under-18s in prison and 26 percent of all prisoners have been in care at some stage. Up to 20 per cent of care leavers experience some form of homelessness within two years of leaving care. Between 25 and 30 per cent of rough sleepers have been in care. More than half of all young people leaving care at the age of 16 and over are unemployed—some estimates put that proportion as high as 80 per cent. Fewer than 1 per cent go on to university.

Of course, that suggests that we need to do much more for our children in care. But I have no doubt that one immediate action that can be taken that would at a stroke immeasurably improve the lives of young people is to increase the number of adoptions. Historically, we know that the performance of local authorities has been patchy at best. In some councils, 10 per cent of looked-after children are adopted; in others, shamefully, the figure is less than 2 per cent. Overall, the system is slow and cumbersome. The average time taken to adopt a looked-after child is two years and nine months—an eternity in a child's eyes.

In January 2001, more than 2,000 children for whom adoption was planned did not have an adoptive family matched with them and had been waiting longer than six months. That is why our debate and the Bill are so critical. In our excellent debates in Grand Committee, surprise was expressed by some Members of the Committee that it was said that insufficient adopters were coming forward, but that is the reality.

The British Association for Adopting and Fostering examined responses to children featured in the March edition of its newsletter, Be My Parent, in which 431 children waiting for adoption appeared. The association received more than 1,200 inquiries about those children but, none the less, 65 single children and 64 sibling groups received no inquiries. Only two of those single children were under the age of one—both with significant developmental problems; 12 were between the ages of one and two; 20 were aged between three and five; and 24 were aged between six and 10. Approximately half of all of those children were from minority ethnic groups. Two-thirds of them were boys. That is the point. It is evident that it continues to be difficult to place boys, black and minority ethnic children, and large sibling groups.

It is essential that we widen the pool of families who can be considered as appropriate adoptive parents. I agree with the noble Baroness, Lady O'Cathain, that local authorities are beginning to get their act together. I rejoice in that, but all the advice that I have received from adoption agencies is that we still need to widen the pool. Enabling unmarried couples, whether of the opposite or the same sex, to apply to adopt jointly, will help to widen that pool. All will be aware that a free vote—at least on the Government Benches—on a Back-Bench amendment to allow unmarried couples, whether of the same or the opposite sex, to apply to adopt children jointly was held on Report in another place. Members of the other place from both sides voted in favour of that change.

At present, only married couples may adopt jointly. Single people may adopt regardless of sexual orientation. That obtains under the Adoption Act 1976. Adoption by single people was accepted practice under the previous government as much as it is under the present one. Some single people who adopt will be in a long-term, stable relationship—whether heterosexual or homosexual. If a person in such a relationship applies to adopt, the couple are currently assessed jointly, but only one person may adopt the child. As the noble Earl, Lord Russell, said, that can cause confusion but, much more, it denies the child the permanence and security of having two parents.

I have always welcomed the constructive approach taken by the noble Earl, Lord Howe, to our debates on the issue throughout the Bill's passage. He suggested that placement with a married couple should be the automatic first choice for adoptive placement. I recognise the strength of marriage; there is no question about that. However, I also recognise that not all children are born to married parents. In 2000, around 40 per cent of births were outside marriage, compared with 30 per cent in 1990. Whether we like it or not, family life has changed dramatically since the last adoption legislation. As the noble Earl, Lord Russell, suggested, our laws should reflect the diversity of the society that they seek to govern.

The figures for divorce rates for some years ago show that 56 per cent of divorced couples had children under 16. Thirty-one per cent of those children were under five. Some marriages may not provide a suitable environment in which to bring up children, just as some unmarried couples can succeed in providing a loving and stable family environment. In that context, can we really say that, in every case, a married couple should take precedence?

Judgments about a couple who have applied for adoption cannot be made on the basis of a general hierarchy of relationships. Surely, the critical issue is the suitability of the couple to take on parental responsibilities. The starting point is that the adoptive placement of choice should reflect the needs and interests of the child.

The noble and learned Lord, Lord Lloyd of Berwick, spoke authoritatively about the judgment to be made by the judge of suitability to adopt. That is how it must be. The adopter assessment process is crucial. Any couple who wish to become adoptive parents must prove not only that they can provide a child with a loving and stable family relationship but that their own relationship is sound and likely to last.

The noble Lord, Lord Jenkin of Roding, referred to the consultation paper that we issued last week about a fundamental review of the adopter assessment process. I commend it to the House, as the noble Lord did. It is clear that the robustness of the adopter assessment process is a critical factor in ensuring that we have a robust system. That process will be tough. It will often seem to parents and people who have applied to adopt children that it is intrusive. That is how it must be. The noble Earl, Lord Howe, asked whether the adopter assessment process was reliable. I hope that he will recognise that the document that we issued last week is a genuine attempt to make the process as effective as possible. The reliability of the assessment process is a judgment that stands or falls not on whether the couple to be assessed are married or unmarried but on the effectiveness of the process itself.

I turn to the issue of gay adoption, which was the subject of the amendment tabled by the noble Lord, Lord Jenkin of Roding. The debate is not about gay adoption: gay men and lesbians can already adopt. If the amendment tabled by the noble Lord were accepted, we would risk denying children the security of having a permanent, legal relationship with two parents.

We do not have figures, but all informed commentators agree that the number of children who are adopted by openly gay people is small. We know that more lesbians than gay men adopt. A recent book, entitled Lesbian and Gay Fostering and Adoption, tells the stories of 17 gay households, comprising 27 adults caring for 40 children or young people through fostering or adoption. To the noble Lord, Lord Waddington, I say that from that book comes some anecdotal evidence that gay adopters might be willing to take on particularly challenging children.

I shall make it clear: nobody has the right to adopt. I repeat: nobody has the right to adopt. However, as the noble and learned Lord, Lord Lloyd of Berwick, said, if single gays can adopt, what objection can there be to gay couples, particularly given the back-stop provided by the assessment process and the judge? As the noble and learned Lord said, if the judge has any doubt, the order will not be made.

The noble Lord, Lord Clement-Jones, dealt with many of the issues raised about the risks of gay adoption that were described. Noble Lords who raised those objections made no comparison between single and couple gay adoptions; their objections seemed to be to gay adoptions in themselves. Such adoptions are legal and take place under the current arrangements. There is no evidence to suggest that the children of gay men and lesbians are significantly more likely than children of heterosexual people to become homosexual, as the noble Earl, Lord Russell, said.

Research has not singled out stigmatisation as a significant problem for children growing up in same-sex households. However, all difference can be stigmatised. If people are fat or thin, short or tall, black or white, they can be stigmatised. We must not give in to stigmatisation; we must fight it on all fronts.

The noble Lord, Lord Hooson, asked about legal equivalence. The wording of the amendment tabled in another place introduced a tailor-made definition of "couple" that would apply for the purposes of this Bill only. By avoiding terms such as "cohabiting" or "living as husband and wife", the new definition avoided any confusion with the position in existing legislation. The definition in the Bill does not attempt to define the legal relationship between the two adults and does not, therefore, encroach on or pre-empt the wider work on civil partnerships being done across government.

The issue of quotas was raised. They do not exist. No one has the right to adopt. Each case must be decided on its merits through the adopter process with final agreement by the courts.

The noble Baroness, Lady Blatch, asked whether faith-based voluntary adoption agencies might be required to assess unmarried couples. I understand that concern, but I have received clear advice on the matter. They will not be required to assess unmarried couples. That is not the case now; it is already possible for a single person in an unmarried relationship to apply to adopt. It will not be the case if joint adoption by unmarried couples is allowed.

Baroness Blatch

My Lords, I am grateful to the Minister for that explanation, as far as it goes. However, I shall put my question in a different way. Would a Church adoption society, for example, be allowed to reject a couple on the grounds that it was a same-sex couple and place children for adoption exclusively with married couples?

6.30 p.m.

Lord Hunt of Kings Heath

My Lords, perhaps I may quote from the draft national minimum standards which, when we have concluded the consultations, will be issued as Section 7 guidance, colloquially known as statutory guidance—although I tempt fate by saying that in front of the noble Lord, Lord Campbell of Alloway. The standard states: Where the adoption agency has a specific eligibility criterion, e.g. because it has particular religious beliefs, or the prospective adopters do not meet the needs of local children waiting for an adoptive family, the prospective adopter is told what these are at the beginning of the process and, if necessary, is referred to another adoption agency". I am happy to write further to the noble Baroness, but from my inquiries I am satisfied that the reputable agencies to which she referred should not be at risk if the Bill is passed as it is.

I say to the noble Baroness, Lady O'Cathain, that this is not political correctness. The majority of legal, childcare and adoption organisations, such as the Law Society, BAAF and Barnardo's, agree that enabling unmarried couples to adopt would improve the life chances of more children. Those are not irresponsible organisations. They are serious organisations with years of experience in dealing with child issues.

At the end of the day we will each make individual decisions on the matter. It is a free vote as far as the Government are concerned. I believe that there is a strong case for accepting the Bill as it stands. I reiterate that it is legal for adoption to be undertaken by single people who nonetheless are in stable relationships, whether of an opposite-sex or same-sex nature. It is also clear that where such a single person is in such a relationship, the current adopter assessment process involves assessing both people in that relationship, even though only one person can adopt.

Surely the logic of that argument is clear. We would provide greater stability for an adopted child in those circumstances by allowing both parties of the couple to adopt. I am convinced that as a consequence we should enable more young people to be adopted; often young people who in the current circumstances have great difficulty in finding suitable adoptive parents. In doing so, we will improve the lives of countless young people both now and in the years to come.

Earl Howe

My Lords, this has been a debate of high quality. I am grateful to all noble Lords who have taken part, but particularly to those who have supported my amendment. We have collectively covered the ground on both sides of the argument and I do not propose to say much more.

I firmly believe that my amendment and not that passed in the Commons represents the best attainable deal for children. Anything else would represent a substantial risk; it would amount to social experimentation. That is why I maintain that it would be irresponsible of Parliament to take risks of this order with children's lives. Nothing that has been said against my position today has refuted the validity of the statistics that I quoted on the lack of durability in unmarried and gay relationships; all that has been said is that those figures are irrelevant because of the assessment procedure.

One cannot talk about the assessment—as the Minister did—as if it were established procedure. It is no such thing; the matter is currently out for consultation. It is wrong to assume that therein lies the vindication for proponents of the present Bill. The noble Lord, Lord Clement-Jones, for example, is in no position to know what the assessment procedure will amount to; nor are any of us.

It is plain common sense that unmarried couples of whatever sex are different in one major respect from married couples: if they want to leave the relationship, all they need do is pack a suitcase and walk out of the door. We should not consciously allow children to be placed at heightened risk of family breakdown.

The Minister referred to the shortage of adopters. I question that. The White Paper on adoption contained no proposals to change the eligibility criteria for adopters. A shortage of married couples did not appear in the list of problems facing the adoption service. That is because there is in practice no shortage of married people wishing to adopt. It is true that there is a waiting list of children looking for adopters, but as my noble friend Lady O'Cathain pointed out, when the Prime Minister's review of adoption was published, it found that 90 per cent of married couples inquiring about adoption were either deterred from pursuing their application or rejected.

That finding suggests that there are large numbers of married people who, if the system were friendly to them, would enter the pool. It has been said, particularly by the Minister and the noble Baroness, Lady Gould, that cohabitation is now a normal feature of our lives and we should accept that. It is indeed a normal feature of life, but please do not be tempted to vote for the Commons amendment in the belief that to resist is somehow to row against the social tide.

If the Bill is approved in its present form, the UK will have gone out on a limb as regards other countries in the western world. The majority of European countries allow adoption only by married couples. Some countries have civil partnership schemes but these specifically exclude joint adoption.

I turn to the amendment tabled by my noble friend Lord Jenkin of Roding. It is grouped separately, although he spoke to it with mine. His amendment places heterosexual cohabitation on the same legal plane as marriage. As he knows, I cannot accept that for the reasons I have given. Furthermore, he did not address the argument I advanced on the absence of property rights for unmarried couples. That is a serious aspect of the debate. Schedule 1 to the Children Act 1989 is, I am advised, nothing like the kind of protection needed in these circumstances.

Lord Jenkin of Roding

My Lords, I do not with to interfere with my noble friend's argument. No noble Lord has supported my amendment. Therefore, I do not propose to move it.

Earl Howe

My Lords, I am grateful to my noble friend for clarifying that point, as I am sure the House will be. In testing the opinion of the House I ask noble Lords to bear in mind one factor above all: the terrible damage done to vulnerable children by family instability and disruption and the risk we would be taking if we were to approve the Bill in its present form.

6.38 p.m.

On Question, Whether the said amendment (No. 51) shall be agreed to?

Their Lordships divided: Contents, 196; Not-Contents, 162.

Division No. 1
CONTENTS
Aberdare, L.	Bridgeman, V.
Ackner, L.	Bridges, L.
Ahmed, L.	Brigstocke, B.
Allenby of Megiddo, V.	Brookman, L.
Ampthill, L.	Brougham and Vaux, L.
Anelay of St Johns, B.	Bruce of Donington, L.
Armstrong of Ilminster, L.	Burnham, L.
Arran, E.	Butterworth, L.
Astor of Hever, L.	Byford, B.
Attlee, E.	Campbell of Croy, L.
Beaumont of Whitley, L.	Campbell-Savours, L.
Bell, L.	Carnegy of Lour, B.
Black of Crossharbour, L.	Carrington, L.
Blackwell, L.	Cavendish of Furness, L.
Blatch, B.	Chalfont, L.
Boardman, L.	Chan, L.
Boothroyd, B.	Chelmsford, Bp.
Boston of Faversham, L.	Cockfield, L.
Bowness, L.	Coe, L.

Colville of Culross, V.	Maginnis of Drumglass, L.
Colwyn, L.	Mancroft, L.
Cooke of Islandreagh, L.	Marlesford, L.
Cope of Berkeley, L. [Teller]	Masham of Ilton, B.
Cox, B.	Mason of Barnsley, L.
Craig of Radley, L.	Miller of Hendon, B.
Crathorne, L.	Milner of Leeds, L.
Cuckney, L.	Mishcon, L.
Dacre of Glanton, L.	Molyneaux of Killead, L.
Davies of Coity, L.	Monro of Langholm, L.
Dean of Harptree, L.	Monson, L.
Deedes, L.	Moran, L.
Denham, L.	Mowbray and Stourton, L.
Dixon, L.	Murton of Lindisfarne, L.
Dixon-Smith, L.	Naseby, L.
Donoughue, L.	Neill of Bladen, L.
Dundee, E.	Noakes, B.
Eccles of Moulton, B.	Nolan, L.
Eden of Winton, L.	Northbourne, L.
Elles, B.	O'Cathain, B. [Teller]
Elliott of Morpeth, L.	Oliver of Aylmerton, L.
Elton, L.	Oppenheim-Barnes, B.
Emerton, B.	Orme, L.
Erroll, E.	Owen, L.
Evans of Parkside, L.	Oxburgh, L.
Feldman, L.	Palmer, L.
Ferrers, E.	Park of Monmouth, B.
Fitt, L.	Patel of Blackburn, L.
Fookes, B.	Peel, E.
Forsyth of Drumlean, L.	Peyton of Yeovil, L.
Fraser of Carmyllie, L.	Pilkington of Oxenford, L.
Freeman, L.	Platt of Writtle, B.
Geddes, L.	Plummer of St. Marylebone, L.
Glentoran, L.	Powell of Bayswater, L.
Gray of Contin, L.	Prior, L.
Greenway, L.	Pym, L.
Griffiths of Fforestfach, L.	Quirk, L.
Hanson, L.	Randall of St. Budeaux, L.
Hardy of Wath, L.	Rawlings, B.
Harris of High Cross, L.	Reay, L.
Harris of Peckham, L.	Renton, L.
Hayhoe, L.	Roberts of Conwy, L.
Hodgson of Astley Abbotts, L.	Rogan, L.
Hogg of Cumbernauld, L.	Rotherwick, L.
Howe, E.	Ryder of Wensum, L.
Howe of Aberavon, L.	Saatchi, L.
Howell of Guildford, L.	Seccombe, B.
Hunt of Wirral, L.	Sharples, B.
Hussey of North Bradley, L.	Shaw of Northstead, L.
Hylton, L.	Shrewsbury, E.
Inge, L.	Simon, V.
Islwyn, L.	Skelmersdale, L.
James of Holland Park, B.	Slim, V.
Jauncey of Tullichettle, L.	Stevens of Ludgate, L.
Jellicoe, E.	Stewartby, L.
Jopling, L.	Stodart of Leaston, L.
Kilclooney, L.	Stoddart of Swindon, L.
Kimball, L.	Strabolgi, L.
Kirkham, L.	Strange, B.
Kirkhill, L.	Strathclyde, L.
Knight of Collingtree, B.	Sutherland of Houndwood, L.
Laing of Dunphail, L.	Swinfen, L.
Laird, L.	Taylor of Warwick, L.
Lamont of Lerwick, L.	Tebbit, L.
Lane, L.	Tenby, V.
Lane of Horsell, L.	Thatcher, B.
Lindsay, E.	Thomas of Gwydir, L.
Liverpool, E.	Tombs, L.
Lofthouse of Pontefract, L.	Trefgarne, L.
Luke, L.	Trumpington, B.
McColl of Dulwich, L.	Uddin, B.
McFarlane of Llandaff, B.	Vinson, L.
MacGregor of Pulham Market, L.	Waddington, L.
	Wade of Chorlton, L.
Mackay of Clashfern, L.	Wakeham, L.
MacLaurin of Knebworth, L.	Walker of Doncaster, L.

Walpole, L.	Wilcox, B.
Weatherill, L.	Williamson of Horton, L.
Wilberforce, L.	Winchester, Bp.
	Wolfson, L.
NOT-CONTENTS
Acton, L.	Howarth of Breckland, B.
Addington, L.	Howe of Idlicote, B.
Alli, L.	Howells of St. Davids, B.
Amos, B.	Howie of Troon, L.
Andrews, B.	Hoyle, L.
Ashton of Upholland, B.	Hughes of Woodside, L.
Avebury, L.	Hunt of Chesterton, L.
Bach, L.	Hunt of Kings Heath, L.
Barker, B. [Teller]	Jacobs, L.
Bassam of Brighton, L.	Janner of Braunstone, L.
Berkeley, L.	Jay of Paddington, B.
Bernstein of Craigweil, L.	Judd, L.
Best, L.	King of West Bromwich, L.
Biffen, L.	Laming, L.
Billingham, B.	Lea of Crondall, L.
Blackstone, B.	Lester of Herne Hill, L.
Borrie, L.	Linklater of Butterstone, B.
Bragg, L.	Lipsey, L.
Brett, L.	Listowel, E.
Brightman, L.	Lloyd of Berwick, L.
Brooke of Alverthorpe, L.	Lucas, L.
Brooke of Sutton Mandeville, L.	Macdonald of Tradeston, L.
Burlison, L.	McIntosh of Haringey, L.
Campbell of Alloway, L.	McIntosh of Hudnall, B.
Carlile of Berriew, L.	MacKenzie of Culkein, L.
Carter, L.	Maclennan of Rogart, L.
Chandos, V.	McNally, L.
Christopher, L.	Maddock, B.
Clark of Windermere, L.	Mar and Kellie, E.
Clement-Jones, L.	Marsh, L.
Clinton-Davis, L.	Massey of Darwen, B.
Cohen of Pimlico, B.	Merlyn-Rees, L.
Condon, L.	Methuen, L.
Corbett of Castle Vale, L.	Montagu of Beaulieu, L.
Crawley, B.	Morgan, L.
Darcy de Knayth, B.	Morgan of Huyton, B.
David, B.	Morris of Manchester, L.
Davies of Oldham, L.	Newby, L.
Dean of Thornton-le-Fylde, B.	Northover, B.
Dholakia, L.	Norton of Louth, L.
Donaldson of Lymington, L.	Oakeshott of Seagrove Bay, L.
Eatwell, L.	Patel, L.
Elder, L.	Pendry, L.
Falconer of Thoroton, L.	Perry of Walton, L.
Falkland, V.	Peston, L.
Farrington of Ribbleton, B.	Plant of Highfield, L.
Filkin, L.	Prys-Davies, L.
Finlay of Llandaff, B.	Radice, L.
Flowers, L.	Ramsay of Cartvale, B.
Gibson of Market Rasen, B.	Razzall, L.
Gilbert, L.	Redesdale, L.
Gladwin of Clee, L.	Rendell of Babergh, B.
Golding, B.	Rennard, L.
Goldsmith, L.	Richard, L.
Goodhart, L.	Richardson of Calow, B.
Goudie, B.	Rodgers of Quarry Bank, L.
Gould of Potternewton, B. [Teller]	Roll of Ipsden, L.
	Roper, L.
Graham of Edmonton, L.	Russell, E.
Greaves, L.	Russell-Johnston, L.
Greengross, B.	Sainsbury of Turville, L.
Grocott, L.	St John of Fawsley, L.
Hamwee, B.	Saltoun of Abernethy, Ly.
Harris of Haringey, L.	Sandberg, L.
Harris of Richmond, B.	Sandwich, E.
Harrison, L.	Sawyer, L.
Haskel, L.	Scotland of Asthal, B.
Hayman, B.	Scott of Needham Market, B.
Hollis of Heigham, B.	Sharp of Guildford, B.

Sheldon, L.	Turner of Camden, B.
Shutt of Greetland, L.	Wallace of Saltaire, L.
Smith of Clifton, L.	Walmsley, B.
Smith of Gilmorehill, B.	Warner, L.
Stone of Blackheath, L.	Watson of Richmond, L.
Tanlaw, L.	Wedderburn of Charlton, L.
Taverne, L.	Whitty, L.
Taylor of Blackburn, L.	Wilkins, B.
Temple-Morris, L.	Williams of Mostyn, L. (Lord Privy Seal)
Thomas of Walliswood, B.
Thornton, B.	Winston, L.
Tomlinson, L.	Woolmer of Leeds, L.
Tope, L.	Wright of Richmond, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.50 p.m.

[Amendment No. 51 A not moved.]

Lord Northbourne moved Amendment No. 52:

Page 28, line 39, at end insert— ( ) Regulations may make provision for securing that, in determining the probable future stability of a relationship, proper regard is had to whether or not each of the two partners is willing to sign a "declaration of commitment" which includes a commitment by each partner to do his or her best—

1. (a) to create and sustain a stable lasting relationship with the other adopting partner; and
2. (b) to create jointly a home for the adoptive child and to give that child the love, care and support it will need until it reaches the age of majority."

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 53. I am afraid that the amendment now before the House will not prove quite as exciting as the previous one. It is about the nuts and bolts of the Bill—the assessment procedure that is being talked about on all sides of the House.

The vote that has just taken place does not affect the relevance of these two amendments because they apply to all couples who want to adopt as a couple. Therefore, they apply to married couples and, if another place were to reverse the vote that has just taken place, they would apply equally to unmarried couples of both types.

When couples adopt as a couple, I would argue that the stakes are higher for two reasons. First, a couple gives the child a father and a mother, as well as giving the child the experience of living with two adults who have to learn to get on together. Thus he has appropriate role models. Secondly, and against that, if the couple break up the catastrophe is much greater. If the child is adopted by a mother and father and the father goes away, he loses a father. If he is adopted only by the mother and the mother's boyfriend goes away, that is not terribly important. I am suggesting that the standard of proof needs to be higher for couple adoptions than it does for single adoptions. Provision for that needs to be made in the Bill or in guidance.

I am most grateful to the noble Lord for sending me the Adopter Preparation and Assessment consultation document and also for his kind and helpful letter. It seems to me that the consultation paper is an excellent document. I hope that all noble Lords have seen a copy of it. Manifestly, we cannot tell whether the contents of that document will ever get into regulations, but we must hope that they will.

However, that document does not deal with the special importance and commitment required in couple adoptions. In different ways, my two amendments attempt to help social workers and adoption agencies to address those issues. In that context, it is also worth noting that at paragraph 5.1 of the consultation document the Government stress their intention to improve the consistency of assessment. I believe that my proposals would also help to do that.

Amendment No. 52 suggests that a social worker should encourage applicants for adoption as a couple to develop a mutually agreed memorandum of commitment. This would not be a legally binding document, but would help to ensure that both partners have thought seriously through the key issues and that they have been able to hammer out an agreement.

Perhaps I may tell your Lordships a little story. About three or four years ago I met an Australian priest who carries out a good deal of work on marriage preparation. He told me that he had a rather good system. When couples came to him for marriage preparation, he would talk to them a little. He would then say, "I would like you to fill in a questionnaire. But, no, not together". He would then suggest that each of them fill it in separately while sitting in opposite sides of the room. When the couple came together again, he said that often the differences in their answers to the questions were absolutely staggering—especially on major issues such as how many children they would like, financial matters, and so on. He said, rather wisely, "It isn't what I say to them, it is what they say to each other on the way home in the car that makes a difference".

It is important that couples who are going to adopt should go through such a process so that they really have to think through what they are saying. In that way, when they find that they have differences they can try to thrash them out effectively. That is the intention of Amendment No. 52. However, Amendment No. 53 is a horse of a different colour because this would encourage couples to enter into a legally-binding agreement about financial arrangements before the adoption.

If, regrettably, divorce and separation take place, I am sure that noble Lords will agree that experience shows that it is very often the financial settlement that causes the most bitterness and anger. It also does the most damage to the child. I am told that it is quite common in America to have a pre-nuptial agreement, which covers what financial arrangements will take place should the partnership break down. Clearly, it is slightly depressing to enter into a loving relationship for life and then sign a document stating what would happen if it comes to an end. We have heard a great deal this evening about the modern world in which we live. In this day and age we have to face the fact that a great many relationships do break down. It may be very much better to make provision for what happens under those circumstances, rather than to leave the matter to chance—

Lord Elton

My Lords, in order to obviate a rather longer intervention later, perhaps the noble Lord might consider a different phrase from "pre-nuptial" for Third Reading, given that the couples concerned may already be married and "pre-adoptive", or something of that nature, might be better.

Lord Northbourne

Yes, my Lords. I think that the word "pre-nuptial" is rather symbolic. The word "pre-adoption" might be better under these circumstances. However, I accept that there are difficulties with such wording. These and other amendments have not been entirely easy to draft because of the threat of proposed radical changes, which will, indeed, be taking place in the Bill.

I do not believe that either of these two amendments should be mandatory upon couples seeking adoption. However, if they indicate a willingness to enter into such agreement, I believe that that should be taken into account by the adoption agency in prioritising their potential as adopters. I beg to move.

Baroness Howe of Idlicote

My Lords, I rise briefly to support the two amendments of my noble friend Lord Northbourne. Quite clearly, they would come into effect only if there was any form of reversal of the decision that has just been taken in your Lordships' House. Nevertheless, I think that they should—

Lord Northbourne

My Lords, perhaps I may just make the point that I said at the beginning of my remarks that they would apply to married couples and, therefore, they would come into effect in any event.

Baroness Howe of Idlicote

My Lords, I am so sorry. I stand corrected. I meant that they would come into effect as far as concerns unmarried, cohabiting couples. However, I should have thought that this would give some comfort to those who have overturned the current existing provision that was before the House because it would be a verbal assurance—a commitment—on the part of the two people who were making this very definite move to adopt children. I would argue that, quite often, the commitment to adopt is even more considered and more worked over by the individuals concerned than perhaps is the case with a married couple where children appear, which is lovely, and so on. It might be an additional comfort should a reversal of the reversal take place.

There is also another reason why I would support Amendment No. 53. Quite honestly, I am not entirely certain why it should not be compulsory. Married couples enter into a vow of lifelong fidelity. Sadly, as we all know, it does not necessarily end that way. There are also financial obligations on married partners to help support any children of the marriage if they are dependent children when and if separation and divorce occur.

A similar commitment to look after the financial side of the relationship if things go wrong would surely enhance the acceptance by both those partners of the specific commitment into which they are entering. Alas, all things in life do not always go according to plan. I strongly suggest that that happens among married couples as well as among cohabiting couples. I hope, therefore, that this amendment will find favour with your Lordships and with the Government.

7 p.m.

Earl Russell

My Lords, a few years ago, in the library of Cambridge University, I read a series of manuscript sermons by Archbishop Ussher on the subject of predestination. The archbishop insisted firmly on condemning those who believed that it was possible to know who was predestined to salvation. He described them as behaving as if they had stood at God's right hand.

John Calvin himself and all the best Calvinist scholars have insisted that the question of who is predestined to salvation is one which it is a presumption for any human being to attempt to know. I am rather inclined to take the view that attempting to decide which unions will be permanent is a similar kind of presumption.

Last Friday, I was speaking to the party's annual dinner in Stroud. My host happened to be someone who had lived with us for a year when I was 14 while his parents were abroad and whom I had not seen since. He told me the many different things that had happened to his siblings. Only one had had a marriage that had survived—and he was the most improbable. His bride was 16, and pregnant—not, I think your Lordships will agree, the kind of situation from which stability in marriage usually results.

When one considers the prospect of a marriage licence—indeed, when one contracts a marriage oneself—one cannot speak out of knowledge; one can only speak out of faith. Attempting to produce external texts for the measurement of faith is a very difficult thing to do.

Amendment No. 53 is, as the noble Lord, Lord Northbourne, said, a horse of a different colour. I agree with the noble Lord, Lord Elton, that it would be much better if the word "pre-nuptial" were removed—because we shall be interested at some stage in the question of unmarried couples.

I cannot help feeling that there must be a large body of statute and case law into which such a provision would need to be fitted as one piece of the jigsaw. I fancy that the Minister may be about to tell us what those pieces of the jigsaw are. My response to this proposal would depend heavily on how well it would fit into such a jigsaw. I believe that it would fit much better into a Bill dealing with civil partnerships such as that introduced by my noble friend Lord Lester of Herne Hill. By itself, it looks like one horse pretending to be a cavalry regiment. I am not sure that one can do that.

The Lord Bishop of Winchester

My Lords, it is making too much of myself to say that I support the point made by the noble Earl, Lord Russell, but it was the point that I had intended to make—although I should have done so without his erudition and charm. It seems to me that this is not the way to introduce a provision that is very similar to the civil partnerships proposals—on a side-wind in a Bill dealing with quite a different matter. Having participated in the debate in this House in January, it seems to me that this would to some extent have that kind of effect. I am grateful to the noble Earl for putting that so beautifully. That would be one reason why I should regret it were the amendment to be accepted.

The second reason is that, as the Bill stands, the amendment seems to relate to matters on which married couples have already made a commitment. In addition, given the terms of the Bill as it stood before the vote on the previous amendment, again we return to the question of civil partnerships.

My third and final point is a matter of detail. I am sure that if the noble Lord were to table this amendment again, he would reconsider the last words of paragraph (b): until it"— an unfortunate word— reaches the age of majority", in the light of Clause 1(2), which refers to, the child's welfare, throughout his life".

Lord Hunt of Kings Heath

My Lords, I agree strongly with the point made by the right reverend Prelate and the noble Earl, Lord Russell, that some of the issues raised by the noble Lord go much wider. Discussions are currently taking place in government in relation to partnership registration. Civil partnership registration and the associated rights and responsibilities raise a number of complex issues.

Work is going on in government to carry out an investigation into the implications of establishing a partnership registration scheme. It is presently comprised of cross-departmental work. The Cabinet Office is leading in terms of following up the issues identified. I cannot give a date as regards the conclusions of the review, but work is under way. Some of the wider issues raised by the noble Lord fall much more to be dealt with in that context.

A further substantive issue is that some of the principles referred to by the noble Lord in terms of attempting to assess whether a couple or a single person—in this case, couples—should be approved as adopters enter into the adopter assessment process.

In terms of a joint application to adopt, I recognise that, following the vote on the previous amendment, the noble Lord is suggesting that this proposal will now relate to married couples, and I accept that. There is no doubt that the regulations falling within the scope of Clause 45, accompanied by guidance, will aim to ensure that in the interests of children only couples in stable and lasting relationships will be approved as suitable to adopt jointly.

Similarly, whether the prospective adopters are single or whether they are couples, they will not be approved to adopt unless they can demonstrate that they can provide a stable and loving home for a child. For any couple to become adoptive parents, they will need to prove not only that they can provide a loving and stable family relationship, but that their own relationship is sound and is likely to be lasting. As part of the fundamental review of the adopter assessment process which we published last week for consultation, we are consulting on the criteria that should be used by adoption agencies in assessing relationship stability.

Amendment No. 52 seeks to insert a subsection addressing the issue of a legal commitment to be signed by prospective adopters. The noble Lord's amendment does not cover the detail of such a legal commitment or whether it would be binding on the parties. In any event, I am advised that it is unlikely that such an agreement could be binding on the court.

Clause 1 of the Bill makes child welfare the paramount consideration for a court or an adoption agency in coming to any decisions relating to the adoption of a child. If the noble Lord's amendment seeks to ensure that prospective adopters have signed a legal commitment to each other, I want to reassure him that the adopter assessment process will examine all aspects of the commitment between prospective adopters, including any form of legal commitment that they have made to each other. The powers in Clause 45 would enable us to make regulations to require adoption agencies explicitly to consider any legal commitments between the prospective adopters should that be considered appropriate following consultation.

Only prospective adopters who can demonstrate that they have a stable and lasting relationship will be approved to adopt jointly. But in debating this issue we must ensure that the commitment of prospective adopters is considered only in the context of their suitability to adopt jointly. As I have said, we need to be careful not to pre-empt the outcome of the work being carried out across government on civil partnerships more generally.

Amendment No. 53 concerns the issue of financial security. We are clearly interested in the legal relationship between the child and each of his or her adoptive parents, and the adoptive parents' intended provision for the child, rather than the formal and legal relationship between the adoptive parents themselves. Even if the adoptive parents split up, the child will still have a legal relationship with each of the adopters, and the protection that goes with it. The provisions on financial relief in Schedule 1 to the Children Act 1989, which provide for courts to order maintenance or lump-sum payments by parents, will apply. That will help to protect the child in many ways.

Lord Campbell of Alloway

My Lords, I thank the noble Lord for giving way. I apologise for not being present earlier. Will not the drafting of Amendments Nos. 52 and 53 have to be revised in the light of the previous decision?

Lord Hunt of Kings Heath

My Lords, the noble Lord, Lord Northbourne, must respond to that point in his winding-up speech. In fairness to the noble Lord, whatever the technical merits or otherwise of the amendments, he made the point that his proposal should apply to married couples and unmarried couples. He will no doubt wish to reflect on the point raised by the noble Lord, Lord Campbell of Alloway.

In conclusion, many of the substantive issues raised by the noble Lord fall to be dealt with under general discussion on civil registration and partnership. However, some of the issues concerning an evaluation of the couple's suitability to adopt children are best addressed in the adopter assessment process. As part of the consultation, I shall make sure that his views are considered to see whether we need to reflect them in the final document that we produce.

Lord Northbourne

My Lords, I am most grateful to the Minister. I am in a strange position, because the argument should really be between the Minister and the noble Earl, Lord Russell. The noble Earl said that it was unreasonable of me to assume that it was possible to identify relationships that would be successful in the future. However, the whole gravamen of what the Minister said throughout this afternoon's debate has been that assessment is key. Either an assessment works or it does not. It can be made to work, but only to a point; and it must not be relied on entirely. Furthermore, anything that can be done to strengthen that assessment must be in the interests of all the parties including the children.

Earl Russell

My Lords, the Minister's comments and mine were not entirely incompatible. I said that one could never be certain; the Minister said that one could calculate the odds. Many bookies appreciate the distinction.

Lord Northbourne

My Lords, that seems fair enough. The amendment was drafted some time ago, before the noble Lord sent me the consultation document, therefore it certainly would need to be reworded.

The arrangement that I envisaged in Amendment No. 52 was not necessarily legally binding, and it was certainly not a legally binding agreement. It was aimed at creating a meeting of the minds between the two partners, because it is easy when entering such a project, or even a business project, to try to be agreeable, optimistic and to avoid looking at the difficulties. The noble Lord has probably assured me that during the assessment process the respective adoptive parents will be forced to go through the snags, the difficulties and the problems, to make sure that they have openly discussed them, and to come to an agreement.

As regards Amendment No. 53, there is a difference between a contract between, on the one hand, a couple agreeing certain arrangements in the event of a breakdown of their situation, and, on the other hand, arrangements set by statute, which would involve going to court. The need to go to court and the horror that often arises in divorce cases are reasons why young people do not get married. A personal commitment between the two people in advance of trouble starting is an alternative that should be explored in the context of adoption and perhaps during marriage preparation. I beg leave to withdraw Amendment No. 52.

Amendment, by leave, withdrawn.

[Amendment No. 53 not moved.]

7.15 p.m.

Earl Howe moved Amendment No. 54:

Page 28, line 39, at end insert— ( ) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

The noble Earl said: My Lords, in Grand Committee I emphasised my belief that Clause 45 is pivotal. It is only two subsections long, but its contents have the potential to affect how the entire adoption process operates and how successful it is. Despite the importance of the subject matter, the rules and considerations governing the suitability of would-be adopters are not spelt out. They are to be left to regulations, so we cannot debate them. That is an unsatisfactory state of affairs. I appreciate that the laying of appropriate regulations depends in this case on the results of the Government's review of the adoption assessment process. Like other noble Lords, I regret that we do not have even a draft set of regulations before us as we debate the Bill. It was for those reasons that I suggested in Grand Committee that if ever there was a case for the affirmative resolution procedure to apply to a set of regulations, this was surely it.

Parliament as a whole ought to have the opportunity to debate the matters that this clause encompasses. They are the criteria that will govern an adoption agency's exercise of discretion about the suitability of prospective adopters and how they are matched. The need for stability and permanence in a couple's relationship is a central issue, but other factors are of prime importance also. When all are taken in combination, we must satisfy ourselves, as the noble Baroness, Lady Blatch, pointed out during an earlier debate, that the regulations include nothing that would serve to encourage anything other than clarity and objectivity of decision-making.

The Minister expressed sympathy with my position when we debated the question previously. He was kind enough to say that he would think about the matter. I hope that he has reached a favourable conclusion, and, at the very least, I hope that he can tell us in a little more detail about the likely scope of the regulations, bearing in mind his wish to maintain a balance between prescriptiveness and flexibility. I am sure that we understand that wish, but we do not necessarily understand where the Minister regards the balance as lying.

I cannot predict what the other place is likely to do with the amendments that the House agreed to earlier. They may reject them, and with that possibility at the back of my mind I hope that the Minister will allow me to express some concerns. One concern arises from the Government's consultation document Adopter Preparation and Assessment and the Operation of Adoption Panels. On page 30, paragraph 5.34, that document states: a minimum of 2–4 years in terms of duration of relationship is often used as a benchmark by agencies".

Do the Government believe that period to be reasonable? If so, why? Why, for example, should there not be a longer period?

It is interesting, not to say a little disquieting, that in paragraph 5.38 the list of crucial factors to be used to assess couples leaves out one simple question, "Are you married?" Why is that question not there. The answer could only be—I should be glad to hear this from the Minister—that the document is based on the presumption that the amendments that we have just debated would not be carried and that in the assessment process as envisaged by the Government the fact of a couple's being married would carry no weight whatsoever. That is because all applicants, whether married, unmarried or of the same sex, would have to be treated equally. I should be grateful for clarification of that. I beg to move.

Lord Hunt of Kings Heath

My Lords, we return to the hierarchy of relationships, as I like to call it. It is not a question of the married status so much as the judgment about the strength of the relationship which surely must inform the adopter assessment process.

In relation to that, the consultation document states: It is currently common practice among agencies to require any marital or cohabiting relationship to be of sufficient length to demonstrate stability". It states merely that the minimum of two to four years is often used as a benchmark for agencies. The question that is put in the consultation paper is whether there should there be a specific benchmark set down in regulations about the minimum length. We welcome views and thoughts on that and I do not want to be drawn further on the matter. It is one on which we want views to be expressed and in the light of the consultation we will decide on the final set of assessment criteria which should be included in the final adoption assessment process.

I undertook to give careful consideration to the arguments made in favour of applying the affirmative resolution procedure. I agreed with the noble Earl that he had made an important point and I have in response tabled my Amendment No. 154. It will ensure that regulations made under Clause 45 concerning the matters to be considered in determining the stability and permanence of a couple's relationship—be they married or unmarried—will indeed be subject to the affirmative procedure.

Whatever the ultimate conclusion in relation to unmarried couples, it is right that Parliament should debate the matters to be considered in determining the stability and permanence of a couple's relationship. That is why I hope that the noble Earl will accept, that my Amendment No. 154 meets the needs of that requirement.

Earl Howe

My Lords, I am grateful to the Minister and wholeheartedly welcome his amendment. I did not want to pre-empt him; it was right that he should speak to it first. It is good news and I thank him.

I was a little surprised by what he said in answer to my specific question about a consultation document because it implied that in the assessment process the fact of marriage would not be relevant. Indeed, he said that the strength of a particular relationship would be assessed in other ways. I find that extraordinary and I hope that in practice it will not be the outcome.

Lord Hunt of Kings Heath

My Lords, we risk going over the ground that we have already covered. I sought only to say that it would be wrong if in the adopter assessment process simply the fact of being married was regarded as of a higher status than that of two couples who were not married but were in a successful relationship. Ultimately, one must come back to an individual judgment about a particular couple.

Earl Howe

My Lords, I understand that and I am grateful to the Minister for repeating his point. However, it is strange that whatever form a couple have to fill in will not contain the question, "Are you married?" I should have thought that that was a relevant fact in any assessment, but I shall not labour the point further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 [Adoption orders]:

Lord McIntosh of Haringey moved Amendment No. 55:

Page 29, line 10, leave out ", the Children (Scotland) Act 1995 (c. 36)"

The noble Lord said: My Lords, in moving Amendment No. 55, I shall speak also to government Amendments Nos. 56, 57, 129 and 138. I want also to make favourable reference to Amendments Nos. 128 and 149 in the name of the noble Baroness, Lady Barker.

These amendments have been brought forward in recognition that the orders that can be made under the Children (Scotland) Act 1995 are not the same as those that can be made under the Children Act 1989. In particular, the 1995 Act contains a statutory scheme for dealing with children's property. An order can be made to administer the child's property or to appoint a court official to carry out that task.

Following consultation with the Scottish Executive, we do not believe that such orders should be automatically extinguished by an adoption order being made in respect of the child in England and Wales. The equivalent Scottish legislation contains no such provision.

We believe that the correct course of action is that an application should be made to the court that made the order to vary or discharge it. The court can then consider the adoption in making a decision in the best interests of the child. The amendments provide that orders made under the 1995 Scottish Act concerning a child's property will not be extinguished by an adoption order in England and Wales. The amendments also provide that exclusion orders under the 1995 Act should not be extinguished.

These orders exclude named persons from the child's family home if the child has suffered or is likely to suffer harm from the conduct of the named person and that making an order is better than removing the child from the home. The orders are applied for by the local authority. They are intended to protect the child and are likely to be less appropriate if the child has left the home in Scotland and is now placed for adoption in England or Wales. However, the 1995 Act contains provisions to deal with this situation. After consultation with the Executive, we have decided that this should remain the case.

As the effect of these orders is not directly on the child's legal relationship with an adult, they are not part of the adoption process itself. Other orders made under the 1995 Act, concerning residence, contact and other specific issues, will be extinguished on the making of an adoption order in England and Wales, as the equivalent orders under the 1989 Act will be by the rest of this clause.

Amendment No. 129 inserts a new Section 56 into the Adoption (Scotland) Act 1978. Scottish local authorities cannot currently make an application for freeing orders as they are expected to apply for freeing under the equivalent provisions of the 1976 Act in England and Wales. As the Bill replaces freeing orders with placement orders, there would be a legislative gap where a Scottish adoption agency wishes to place a child in England and the agency needs to apply for a freeing order.

The amendment would allow Scottish local authorities to apply for freeing orders for children who are placed for adoption from Scotland to prospective adopters in England or Wales. However, the child may still require to be freed before an adoption order can be made in England or Wales and that can be done only through this amendment. It also allows flexibility in those cases for the adoption to be applied for in Scotland or in England and Wales.

I turn to Amendments Nos. 128 and 129 tabled by the noble Baroness, Lady Barker. They do not change the effect of the provisions. Existing freeing orders made under the 1976 Act will continue to be recognised in Scotland after that Act is repealed. The argument for the amendments is that it is clearer to leave this intention on the face of the relevant Scottish primary legislation rather than rely on transitory provisions in this Bill.

The amendment would ensure that the Scottish adoption legislation—that is, the Adoption (Scotland) Act 1978—continues to say in its text that freeings from England and Wales, granted before the Bill comes into force, are recognised.

It is the clear policy of the Bill that although freeing is to be abolished in England and Wales, orders in existence up to the implementation of the Bill will still be recognised in England and Wales and in Scotland. However, as drafted, the Bill deletes the recognition of these freeings in the 1978 Act so that on its face that Act will look as though there is no recognition of them.

The fact that recognition is continued by reference to Schedule 4 (transitional provisions) will not be of direct assistance to the Scottish courts and Scottish legal advisers. Scottish legal practitioners and courts will not have in front of them, in the normal course of events, a copy of the Bill as passed. However, they will have access to an up-to-date version of the 1978 Act. Following consultation with the Scottish Executive, we accept the argument and we are prepared to accept Amendments Nos. 128 and 149.

Amendment No. 138 is aimed at paragraph 19 of Schedule 2 to the Children Act 1989. Paragraph 19(1) of Schedule 2 provides that where a child is subject to a care order, the court must approve his being moved by a local authority to live outside England and Wales. In the case of any other looked-after child, paragraph 19(2) of Schedule 2 to the Act provides that the child may only be moved outside of England or Wales with the consent of all those who have parental responsibility for him. It would therefore be possible for cross-border placements—in other words, between England or Wales and Scotland—to be blocked.

Let us take the example of an English adoption agency which has been authorised to place a child in England for adoption under Chapter 3 of the Bill, and the child's parents have consented to placement or a placement order has been made. Let us say that the agency considers that a placement with Scottish adopters is in the child's best interests and wishes to do that. Any person with parental responsibility for the child could then, under paragraph 19, block that by objecting to it, even though the conditions for placement in the Bill have been complied with and the placement is considered to be in the child's best interests.

The amendment therefore disapplies paragraph 19 so that where a child is looked after by a local authority, and the authority has already been authorised to place the child for adoption under Chapter 3 of the Bill, it will be able to do so outside England or Wales into another part of the United Kingdom without the need to have the consent of all those with parental responsibility. I beg to move.

7.30 p.m.

Baroness Barker

My Lords, in speaking to Amendments Nos. 128 and 149, I agree with everything that the noble Lord, Lord McIntosh of Haringey, has just said.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 56 and 57:

Page 29, line 11, after "1995," insert— ( ) any order under the Children (Scotland) Act 1995 (c. 36) other than an excepted order,

Page 29, line 15, at end insert— "Excepted order" means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 (c. 36) or an exclusion order within the meaning of section 76(1) of that Act.

On Question, amendments agreed to.

[Amendment No. 58 not moved.]

Clause 47 [Conditions for making adoption orders]:

Lord McIntosh of Haringey moved Amendments Nos. 59 and 60:

Page 29, line 34, after "made" insert "if the child has a parent or guardian"

Page 30, line 11, leave out from "order" to end of line 13.

On Question, amendments agreed to.

Clause 49 [Applications for adoption]:

Earl Howe moved Amendment No. 61:

Page 30, line 42, after "a" insert "married"

On Question, amendment agreed to.

Clause 50 [Adoption by couple]:

Earl Howe moved Amendments Nos. 62 and 63:

Page 31, line 17, after "a" insert "married"

Page 31, line 19, after "a" insert "married"

On Question, amendments agreed to.

Clause 51 [Adoption by one person]:

Earl Howe moved Amendments Nos. 64 and 65:

Page 31, line 26, leave out subsection (2).

Page 31, line 30, at end insert— ( ) the person is married to a parent of the person to be adopted,

On Question, amendments agreed to.

Clause 52 [Parental etc. consent]:

Earl Howe moved Amendment No. 66:

Page 32, line 11, leave out paragraph (b) and insert— ( ) there is a risk of significant harm to the child that requires the consent to be dispensed with.

The noble Earl said: My Lords, in Grand Committee we had a most useful and enlightening debate on the provisions of Clause 51, now Clause 52, which deal with the sensitive issue of parental consent. I seek to return to those issues with my Amendment No. 66. My concern relates to the circumstances in which the court will be able to dispense with the consent of a birth parent to the making of a placement order or to the adoption order itself.

We need to have at the front of our minds, once again, what it means for a family to be subject to adoption proceedings. Adoption stands apart from any other plan for the child because it involves lifelong consequences; it leads automatically to an irrevocable severance of the legal ties between a child and his or her parents and wider family. For that reason, it amounts to the most fundamental interference with the right to family life that there is. Subsection (1)(b) of Clause 52 specifies that the court may dispense with parental consent if it is satisfied that, ( ) the welfare of the child requires the consent to be dispensed with".

I listened with care to the Minister's comments in our earlier debates, as I did to those of my noble friend Lord Campbell of Alloway whose experience in these matters has been such an asset to us. Both the Minister and my noble friend tried to reassure me. What troubles me, however, is that we appear to be envisaging here a provision that is too loose. I say this particularly in the context of European law, which on this issue is very clear and specific. European case law has established that there must be exceptional circumstances to justify permanently severing the parent-child relationship.

I seriously question, even with all the provisions of Clause 1 of the Bill, whether it is enough to allow a court to dispense with parental consent purely on the strength of a judgment about the child's welfare. My approach previously to the issue was to try to put a stiffer type of test before the court, a higher hurdle for it to cross than a judgment about the child's overall welfare. That approach was flawed, and I accept that.

What I am now suggesting is that we ought to narrow down the circumstances that might enable the court to dispense with parental consent. It could do so when the parent cannot be found or is incapable of giving consent, as set out in subsection (1)(a). I suggest that the only other situation in which the court could do so is where it is satisfied that the child is at risk of significant harm, which requires the consent to be dispensed with. In other words, it is a very much more specific test which, if passed, would then trigger the consideration set out in Clause 1. If the test is not met, then the court would be able to consider protecting the child's welfare by another legal route, perhaps a residence order or a legal guardianship order which does not involve the finality that I have spoken about.

I should remind the House that this part of the Bill as it stands has given rise to consider able disquiet among professionals in the field of adoption, including the BAAF and the Law Society. I think that that disquiet is well-founded. We have to tread very carefully before allowing the state to impose on a set of parents an irrevocable severance from their child. Where there is a question mark, as I believe there is, on the availability of effective community support for birth parents, it strikes me that we would do much better to concentrate our efforts on providing support of that kind, with a view to minimising the need for unconsented placements or adoptions being mooted in the first place.

I hope that the Minister will feel able to look constructively on this amendment. I beg to move.

Lord Campbell of Alloway

My Lords, I have to speak on this matter because I was counsel in that leading case. With respect to my noble friend Lord Howe, I do not think that he begins to understand, or that many people begin to understand, the real issues at stake here unless they read those judgments. There are five of them and they are unanimous. What my noble friend is saying is that he wants a specific test. What the court was saying unanimously is that we must have an unrestricted general test, and the court gave its reasons. I shall not bore the House with reasons; they are all there to be read in Appeal Cases if anyone wants to read them.

My noble friend said that he wants a restricted, narrowed down approach. The unanimous decision of the court, all the opinions, said that that is precisely what should not happen in the welfare and the interests of the child. My noble friend seeks to say that the measure will in some way satisfy those who wish to restore the blood tie argument. However, the whole essence of the decision was to strike down the series of decisions of the Court of Appeal which favoured the blood tie. I am not going into details of law; I am merely telling your Lordships what happened for the sake of the record as there are not many noble Lords present. It is important that what happened should be recorded.

Whether we like it or not, we have entered a veritable no man's land strewn with unexploded ammunition. Walking out of this Chamber I was reliably informed that the advice that I gave to the House about the amendments we discussed being wholly unenforceable was dead right—I shall not say who told me that but it was a noble Lord of great authority; I do not know which way he voted. If that is so, we must be careful. What will happen? First, the measure will go to the other place. What will the Members of the other place do? We do not know. If they defeat our amendment and send it back, what shall we do? We do not know. We are faced with potentially unenforceable legislation.

It is against that background that I urge the exercise of considerable care as regards interfering with the leading decision of In Re W, which this measure is designed to do. Let us not mince the question; that is it. Those who propose the measure want to restore the blood tie; they do not like the welfare approach; they want a different, more specific approach. However, we must think carefully about that because In Re W still stands and is binding on the Bill. The amendment covers married couples only. Assuming that the amendment becomes law, it will affect only married couples. On that basis, In Re W still stands as regards married couples. It is crucial that it should not be defeated by an amendment such as this.

It is even more important that my noble friend and the House should realise what is happening. I hope that noble Lords will forgive me for taking time to explain the matter. In Re W was a hard fought case. It took a lot of effort to win. The decision was unanimous and it is binding on this Bill. I thought that your Lordships should know that.

7.45 p.m.

Baroness Andrews

My Lords, I am most grateful to the noble Earl and to the noble Lord, Lord Campbell of Alloway, for exploring the amendment on behalf of the House in such an extraordinarily authoritative way. We shall all study his contribution. The noble Lord played a leading role in the determination of our case law. Therefore, I can certainly dispense with some of the comments that I intended to make.

Amendment No. 66 follows on from the debates we had in Grand Committee about the legal test for dispensing with parental consent to adoption. This is one of the most central, weighty and important issues raised by the Bill. As the noble Earl said, it constitutes an irrevocable step. If we are going to interfere with family rights in this way, we must have good reasons and good tests in place. The matter has exercised stakeholders for some years. One of the reasons we are swinging back and forth trying to find a definition is precisely because of the difficulty of doing that.

I am grateful that the noble Earl responded so positively to the points that we raised in Grand Committee. We agreed that the term "significantly better" was far too loose as regards determining the ability to intervene. However, I hope that the noble Earl will understand that I cannot accept the amendment as I consider that it has swung to the other extreme. It is extremely narrow and we believe that it constitutes too restrictive a test. I wish to reiterate the importance of the paramountcy principle in Clause 1. It underpins our thinking and the whole Bill. It makes the child's welfare the absolutely fundamental paramount consideration. It is a great step forward. It builds on case law and it has universal support inside and outside the House. Clause 1(4)(f) ensures that the views, interests and capabilities of parents and relatives are essential elements in the decision.

The second principle that has shaped our approach—I refer to what the noble Lord, Lord Campbell of Alloway, said in this regard—is the need to set out in the legislation a clear, broad framework. However, we do not want to constrain, fetter or reduce the discretion of the court in any way. The term "test" is not used in the Bill but that is what we are talking about—a welfare test.

In Grand Committee the noble Baroness, Lady Howarth of Breckland, raised an important question, which I hope that we can answer, about whether the relevant test will be as full and as sufficient as it needs to be. The noble Earl also referred to that matter. As the clause is currently drafted, the court can dispense with the parent or guardian's consent under two circumstances: first, when they cannot be found or are incapable of giving consent; and, secondly, when the child's welfare expressly requires the consent to be dispensed with. Those provisions will apply in contested cases. The relevant test is different from that set out in the 1976 Act.

The noble Lord, Lord Campbell of Alloway, did not take us through the 1976 Act. However, under the current legislation the court may dispense with the consent of the parent where it considers that that consent is being withheld unreasonably. Obviously, the question has been asked: what would a reasonable parent do? In the In Re W case and in subsequent judgments to which the noble Lord, Lord Campbell, referred, in determining what a reasonable parent's attitude would be, the welfare of the child was a leading consideration. The parent is the focus of the decision but the welfare of the child is the critical factor, as it would be for any reasonable parent.

We are moving forward positively from that position. There are, I believe, three safeguards. The noble Baroness, Lady Howarth, was concerned about the simple welfare test. That is neither a light nor trivial matter. The factors to be considered in Clause 1(4) are wide ranging and comprehensive. However, that does not mean that they are loose and vague. We are taking into account not only the child's wishes, feelings, needs and characteristics but also the life-long effects of adoption. These are not short-term fixes. We are looking at life-long effects. That is what concentrates the mind. We are considering harm, or risk of harm, to the child. We are considering the relationship of relatives and other relevant people to the child and the value that is placed on that.

I shall now move from the whole picture and weigh up the various parties' convention rights. The point is that the court will decide whether the child's welfare requires that the parents' consent should be dispensed with, bearing in mind all the considerations in Clause 1 and despite the weight that must be attached to any objection from a parent.

Finally—I emphasise this point to the noble Lord—it is also worth remembering that under Clause 1(6) the court will still have to consider the full range of alternatives. The noble Lord referred to that matter himself. The court must not make a placement or adoption order unless it considers that that would be better than not doing so. It must consider whether, for example, a residence order would be better.

In contested cases, the court will have the discretion to weigh up the facts in each case and consider all the factors in coming to any decision to dispense with parental consent. In contested placement or adoption order cases, within the framework that I have set out, the court will exercise its discretion in line with the Human Rights Act and ECHR law.

I reiterate what I said in Grand Committee about case law under the ECHR. The leading case of Johansen v Norway in 1996 makes clear that deprivation of parental rights and access should occur only in exceptional circumstances. It would be justified if motivated by an overriding requirement pertaining to the child's best interests. I believe that that reinforces our case that this is the opposite of a trivial test. We must abide by those requirements as well.

We come to the effect of the amendment and the narrowing down of the focus. I appreciate the intellectual struggle that has taken place in trying to find something that will satisfy the noble Earl. At present, the court would be able to dispense with parental consent only if it considered that there was a risk of significant harm. If there were not, no adoption order could be made. That is far narrower than the current ground for dispensing with consent.

Put very simply, my problem is that the amendment reduces the question of whether it is right to dispense with parental consent in terms of significant harm to a question of child protection. However, we argue, as expressed in Clause 1, that, in considering the making of an adoption order with a lifelong impact, we should look positively at what the child requires for a full and happy life with a new family. We should do that more thoughtfully, more carefully and more widely, and of course, by considering the risk of harm.

Lord Campbell of Alloway

My Lords, the noble Baroness has reached the nub of the argument. Can she accept that the position is this? The noble and learned Lord, Lord Lloyd of Berwick, would have confirmed it if asked. If there is any hint of harm to the child, there will be no order for adoption. This provision is used as a bar to adoption. It is quite a different concept.

Baroness Andrews

My Lords, I absolutely accept that. As I said, here we are considering a threshold which is normally used in cases of child protection. I believe that there is another complication which follows from that. While, on the one hand, we were anxious that the Bill should be consistent with the Children Act, and we have tried to ensure that throughout, the Children Act threshold should also be present in order to protect families from compulsory intervention in the context of adoption. That is why Clause 21 already applies the significant harm threshold to the making of placement orders. Obviously, local authorities will use those orders in the first instance in seeking to place children for adoption, often at the same time as they apply for care orders.

However, the question of whether final adoption should be made comes later in the process. In adoption cases, either the parties will have given consent to placement or a placement order will have been made, in which case the significant harm threshold will already have been triggered by definition. By the time of the final adoption hearing, the child is likely to have been placed with prospective adopters for several months and, at that point, strictly speaking, there should be no question of significant harm to the child.

While the decision to move to the final stages of adoption will require that point to be revisited—obviously it will form part of the consideration—the courts will also have to take into account the wider expectation. Of course, the additional safeguard for parents is that, if the circumstances change, they can change their mind about the final adoption order. Therefore, I believe that the court should be able to weigh up the two alternatives. It should be able to consider the whole picture and all the relevant factors in this positive, safe and constructive manner and not simply take into account harm of the child.

These are not straightforward matters, and I sincerely respect the way that we have all wrestled with them at various stages of the Bill. We have been most grateful for the advice that we have received from the noble Lord, Lord Campbell of Alloway. However, given that we have put into the Bill the paramountcy principle, I believe that it would be inconsistent, to say the least, to try to undermine or condition it in this way. The courts should have the discretion. Where a court considers that welfare requires that parental consent be dispensed with, then I believe that that is what should happen.

Earl Howe

My Lords, perhaps I may say that that was an extremely illuminating reply. As I sat listening to it, the pieces fell far more securely into place than they did in Grand Committee. Perhaps that was a reflection on my level of concentration in Grand Committee as compared with this evening. I am most grateful to the noble Baroness and I shall obviously read again what she said. I believe that she put the whole matter into its broadest context. I also want to thank my noble friend for the light that he was able to shed on this question.

I understand the need to refer back to the key provisions of Clause 1 in this context. Earlier, I felt that the Bill needed to refer in terms in this clause to the kind of exceptional circumstances that are required under European law. However, from what the noble Baroness said, I take it that it is not so much the language as the practice that matters. A decision by a court—if it is ever challenged—will rest upon the reasonableness of that decision in the context of Clause 1. I accept that.

Obviously I shall not press the amendment today. However, I believe that it has been useful to raise this matter again as I believe that the noble Baroness's reply will be a reference point for the writers of legal text books; at least, it deserves to be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 67:

Page 32, line 25, leave out subsection (6) and insert— (6) "Parent" in this section means—

1. (a) a parent having parental responsibility for the child,
2. (b) a parent who has applied to the court for parental responsibility for the child and is awaiting a determination by the court, or
3. (c) a parent who does not have parental responsibility for the child until he has been notified in writing that he has the right to apply to the court for parental responsibility and has either declined or failed to do so within a period to be stipulated in regulations."

The noble Lord said: My Lords, this amendment concerns parental responsibility. It seems to me that there may be a danger of injustice, in particular, to fathers. Clause 52, as drafted, provides, in effect, that if a birth father wants to have any say in the adoption process, he must have parental responsibility. Your Lordships will all know that parental responsibility is granted automatically if the father is married to the mother or if his name is on the child's birth certificate. Noble Lords will also know that a birth father can apply to the court for parental responsibility. I do not believe that Clause 109 alters that position.

The problem is that, in practice, a great many birth fathers today are simply not aware of the importance of parental responsibility and, for that reason, have not bothered to apply for it. The amendment is intended to allow such fathers time to apply for parental responsibility if they are suddenly confronted with adoption proceedings in relation to their child. It would allow them to have time to apply before it was too late and they were caught by Clauses 9 and 10. I am not certain but I do not believe that Clause 10 materially affects the usefulness of what I propose in the amendment. I beg to move.

8 p.m.

Baroness Barker

My Lords, I rise briefly to support the noble Lord, Lord Northbourne, in his amendment, in particular paragraph (c), and to make one point relating to absent fathers.

There is an almost automatic assumption that a father who absents himself from the care of a child or from living with the mother of a child does so for bad reasons. That is not always the case. I know of a couple of cases where fathers have absented themselves from the family home because they believed that it was in the best interest of the child to do so as the quality of the relationship between the child's mother and father was bad. One such father subsequently discovered by an indirect route that his children were being put up for adoption and could have gone without him knowing.

Therefore, the point which has been raised before by the noble Lord, Lord Northbourne, concerning the strength of the effort to find birth fathers is one which deserves to be underscored. I accept that the majority of cases will not be as I have described; but there are some such cases. For those people I believe that we should go the extra length to ensure that they are fully consulted.

My resolution to support the noble Lord was strengthened by the experience of talking to a birth father who has gone along to relinquish parental responsibility and subsequently to sign for his child to be adopted. I was extremely moved as he described going to the court and queuing alongside people who were paying parking fines and fines for non-payment of bills, rates and so forth, to sign away his children.

I believe that that is an indignity through which we should not put people. Those responsible for making the decisions have a duty to try as best they can to ensure that such people have been fully informed. I understand the difficulties experienced by care agencies in trying to find fathers and trying to make them responsible. However, some people deserve not to be categorised or treated in that way. Therefore, I support the noble Lord, Lord Northbourne.

Baroness Andrews

My Lords, I am well aware that both the noble Lord, Lord Northbourne, and the noble Baroness, Lady Barker, speak from long experience and a deep concern for the cases they visualise when they describe the implications of the amendment. I appreciate and respect that.

The noble Lord, Lord Northbourne, spoke of the danger of injustice. In the amendment, matters turn on who counts as a parent for the purpose of consent to placement. We are keen not to perpetrate any injustice in the Bill and to put right what we can. As regards unmarried fathers, perhaps I may remind noble Lords of the position under the 1976 Act, and that the provisions in Clause 52 concerning consent to placement and adoption orders provide that the people whose consent is required are the parents or guardians of the child. That is straightforward. In this case "parent" means parent with legal parental responsibility within the meaning of the Children Act. That is exactly the same position as applies now under the 1976 Act.

I believe that the noble Lord is mainly concerned with the position of unmarried fathers. To reiterate, under the Children Act an unmarried father does not automatically have parental responsibility for his child, so does not automatically have the right to consent to the adoption of his child. He can obtain parental responsibility by reaching an agreement with the mother, by marrying the mother or by obtaining a court order giving him parental responsibility.

I am pleased to state that in Clause 109 there will be in future another route. Unmarried fathers will have parental responsibility automatically where they jointly register the birth of the child with the mother. I am sure that over time that will mean that this other route will open up the prospect of shared responsibility in the way we hope.

However, the noble Lord's amendment focuses on what should happen where, for whatever reason, an unmarried father does not have parental responsibility and how he should be involved in any court proceedings.

In addressing the amendment I go back to much earlier in the adoption process. We discussed the issue of placement orders on Monday. I explained that where an adoption agency is considering placing a child for adoption it has to abide by its obligations under Clause 1(4)(f), which requires it to consider the wishes and feelings of the child's relatives, including both parents.

We would expect the agency to consult and involve members of the child's family, including unmarried fathers, in all circumstances unless it would be contrary to the welfare of the child. I take the point made by the noble Baroness, Lady Barker, that there are cases, which I presume are rare, in which fathers have absented themselves willingly because they feel that they would be an embarrassment or obstruction or may cause a difficulty to the child.

The explicit duty on adoption agencies exists at present under Regulation 7(3) of the Adoption Agencies Regulations 1983 to contact and involve the unmarried father of the child where he is known to them and where that is practicable and consistent. We expect all reasonable steps to be taken within that framework of consistency to find the father.

In another place my right honourable friend the Minister of State for Health, Jacqui Smith, gave an explicit commitment that that obligation will be repeated and expanded upon in the new regulations and guidance to accompany the implementation of the Bill. It will also take account of recent ECHR-related case law, which places further emphasis on the importance of informing, involving and consulting unmarried fathers. I believe that that extra dimension will make the commitment and our resolution to follow it much clearer and stronger. Therefore, that will be an improvement.

Moreover, when the agency is in any doubt as to whether or not to consult the unmarried father, as I said on Monday, we envisage providing in court rules for it to be able to make a direct application to the court for guidance on this matter. Therefore, there are two ways in which that will be strengthened.

The intention is that in the vast majority of cases the unmarried father without parental responsibility will be aware of the proposed plan for the adoption of his child well before any application for an adoption order. He will then be able to take the action anticipated in the noble Lord's amendment. It will be open to him to apply for an order giving him parental responsibility under Section 4 of the Children Act.

However, I also know that the noble Lord wants to widen the window. That is the intention of his amendment. I assure the noble Lord that there is such an opportunity. Under the Bill, where a child has been placed for adoption with prospective adopters, there will be a period of 10 weeks when the child is living with the adopters when it will be possible for the unmarried father to make arrangements to apply for parental responsibility.

Paragraph (b) of the amendment concerns what should happen when such an application is pending. Here, we run into a few difficulties. When there is a pending application for a parental responsibility order from an unmarried father and at the same time an application for a placement order or an adoption order, we would expect that the court would ensure that the matter of the parental responsibility would be resolved first. Therefore, the father will not be in a state of limbo. He will be able to assume parental responsibility if the conditions are right before the next steps are taken. That is in line with the approach adopted by the courts when there have been doubts in the past. I hope that it is a more appropriate solution than that proposed by the noble Lord.

We also have concern about the uncertainty of the amendment. Paragraph (b) would mean that a parent who did not have parental responsibility but who had applied for it would be treated for the purposes of adoption as if he already had it. However, the corollary of that would be that if his application was unsuccessful he would be treated as if he did not have parental responsibility.

In our interpretation, there is a slight inconsistency. Two people without parental responsibility would be treated differently. I do not think that the noble Lord wishes that. While we are concerned about the uncertainty, I suggest that our provisions will provide what the noble Lord wants. A court might find it difficult to know for certain whether the father had received the notice of his ability to apply for parental responsibility, and when he received it. It may be difficult for the court to know whether his consent was required.

I know that the noble Lord will agree that there needs to be absolute certainty at every stage of the process. That is what we aim for. That is why we have difficulties with the amendment.

Lord Northbourne

My Lords, I am most grateful to the Minister. I feel much comforted by what she said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Offence]:

[Amendment No. 68 not moved.]

Clause 64 [Other provision to be made by regulations]:

Lord McIntosh of Haringey moved Amendment No. 68A:

Page 38, line 12, leave out subsection (5).

The noble Lord said: My Lords, Amendment No. 68A omits subsection (5) of Clause 64. In the context of government Amendment No. 96A, which I have agreed should not be grouped with this amendment and to which I shall come shortly, we now also consider that adoption support agencies should be able to apply for information on behalf of a birth relative or an adopted person for adoptions made after the Bill comes into force.

By omitting subsection (5) of Clause 64, we make clear that the powers in Clause 9 may provide for anyone—that is, not only the adopted person—to authorise a third party to receive information on his or her behalf. The intention is that under the powers in Clause 9 adoption agencies will be required to obtain information from the third party to ensure that the applicant for the information has authorised the third party to receive it on his behalf. I beg to move.

On Question, amendment agreed to.

[Amendment No. 69 not moved.]

Clause 66 [Meaning of adoption in Chapter 4]:

Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 70: Page 39, line 27, leave out from beginning to "the" in line 28 and insert "But references in this Chapter to adoption do not include an adoption effected before

The noble Lord said: My Lords, I shall not move Amendment No. 70 because it is consequential on Amendment No. 51. It may help the House if I put on record the other amendments that I shall not move. They are Amendments Nos. 71 to 73, 77 to 85, 92 to 96, 122 to 127, 130 to 134, 139 to 143, 145 to 148, 150 to 154,165 and 167. It will be observed that I have not included Amendments Nos. 157, 170 and 171 which are in this group. They will be moved when we return to the Bill next week. I am not moving Amendment No. 70.

Earl Howe

My Lords, with the leave of the House, the Minister referred to Amendment No. 154. We spoke to that in an earlier group. I had hoped that it would be moved.

Lord Hunt of Kings Heath

My Lords, that is right. I doubt that we shall reach Amendment No. 154 today but I shall be moving it.

[Amendment No. 70 not moved.]

[Amendment No. 71 not moved.]

Clause 67 [Status conferred by adoption]:

[Amendments Nos. 72 and 73 not moved.]

Lord Northbourne moved Amendment No. 74: Page 40, line 1, at beginning insert "subject to paragraph (c)

The noble Lord said: My Lords, this issue has come to my notice only since Grand Committee. I apologise for not having raised it in Grand Committee.

It has been represented to me that adoption legislation as it now stands, and as it will remain if the clause as drafted stands part of the Bill, may not always operate in the best interests of the child. It may also face the birth father of the child (it usually is the father) with an agonising decision as to whether to reject the proposal for adoption or to agree to it in the best interests of the child knowing that if he does so he will cut himself off from the child for ever. The situation is unnecessary and would be remedied by the amendment which may need rewording.

Let us consider an example. A and B are married. They are the birth parents of a child. They find that the marriage is not working out for reasons of incompatibility. They separate. The mother (A) subsequently forms a partnership with, or marries, another man. The child lives happily with them but continues to see his father. After a while A and C decide that they would like to adopt the child in order to confirm the stability of their commitment to her.

As the law stands at present, if B, the other birth parent, usually the father, agrees to the adoption the court has no alternative but to cause him to cease to be the parent of that child and the child loses a father. It is argued that this may not be in the best interests of the child and may face the birth father with an agonising and unnecessary choice.

I am informed that it is a quite common situation under the law as it stands today. I have set down the amendment to draw attention to the situation because I am informed that in some continental countries the law provides that under appropriate circumstances the birth father may retain the status of father despite a step parent adoption. The child then has three parents. If all three are good parents, it will be in the best interest of the child. I beg to move.

8.15 p.m.

Lord McIntosh of Haringey

My Lords, I have serious difficulty with the amendments. They seek to create a new type of what has been called a simple adoption order where a child is adopted by the spouse or partner of one birth parent but the legal relationship between the child and the other birth parent has not been severed.

Adoption seeks to secure a permanent home for a child by transferring the child for virtually all purposes from the birth family to a new adoptive family and severing the legal links with the first. The amendments would result in the child having three legal parents: the natural parents and the spouse or partner of one of them. That undermines fundamentally the principle of adoption. It could cause uncertainty and distress for all concerned, especially the child. What happens, for example, if a birth parent disagrees with the way the adoptive parents are bringing up a child? The birth parent can apply for a Section 8 order under the Children Act whether or not he or she has parental responsibility. That could include applying for a residence order. Surely that is inconsistent with providing for children a secure and permanent future with adoptive families.

I fully accept that there are cases when adoption is not right. Adoption is not right for all children. That is why there are the alternatives of residence orders. The court must consider in each case what is in the best interest of the child. When a family splits up, it must be right that a spouse or partner of the parent with care should be able to apply for parental responsibility to help to share fully in the day-to-day care of the child. However, where there is an interested and caring birth parent, it is unlikely that the court will consider a step parent adoption to be in the best interest of the child.

The adoption review considered the option proposed by the noble Lord, Lord Northbourne, but did not favour it. The responses to the review were overwhelmingly in favour of the approach in the Bill. Given the range of options open to the court to make an order in the best interests of the child, I hope that the noble Lord, Lord Northbourne, will feel able to withdraw the amendment.

Lord Northbourne

My Lords, I understand the Minister to say that the solution to the problem is that the child should not be adopted by the step family. I should like to take advice on that and to read what the noble Lord said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 75 to 79 not moved.]

Clause 68 [Adoptive relatives]:

[Amendments Nos. 80 to 82 not moved.]

Clause 69 [Rules of interpretation for instruments concerning property]:

[Amendments Nos. 83 and 84 not moved.]

Clause 76 [Insurance]:

[Amendment No. 85 not moved.]

Schedule 1 [Registration of Adoptions]:

Earl Howe moved Amendment No. 86:

Page 88, line 35, at end insert ", or ( ) adoption, whenever granted, which the High Court in the exercise of its inherent jurisdiction orders to be registered in the interest of the adopted person.

The noble Earl said: My Lords, Amendment No. 86 returns us to an issue that I raised in Grand Committee with which the Minister dealt most helpfully on that occasion. I have tabled the amendment again, however, because there are some outstanding matters of detail on which I should be glad of clarification.

Perhaps I may briefly remind the House of the issue. Under current rules, recognised overseas adoptions cannot be entered on the adopted children register. Children whose overseas adoptions cannot be registered cannot be issued with a birth or adoption certificate and have to rely throughout their lives for day-to-day purposes on their foreign birth or other certificates. These certificates mark them out as different from other citizens and can contain negative references such as "abandoned" or "without parents".

There is provision under the 1999 Act and under the Adoption and Children Bill for such adoptions to be registered where necessary information is available. In Grand Committee, the Minister indicated that the term "overseas adoption" includes adoption made under the old designated list, thereby giving registration of overseas adoption retrospective effect.

That was a most helpful clarification for which I was grateful. However, the Minister made clear that, it is possible that when an old overseas adoption was made, the adopters were not provided with the information or documentation that the registrar-general applies to register the adoption".—[Official Report, 1:5/7/02; col. CWH 299.]

The largest single group of children who potentially stand to benefit from this change in legislation are the 800-plus children who have been adopted from China. We cannot, though, be certain how many of those adopted children will benefit from the change, because it is unclear what will constitute "sufficient information".

I hope that the Minister can reassure me. My fear is that it is precisely the most vulnerable children and those for whom an English adoption or birth certificate is vital who will find that they have too little information for their adoption to be registered; for example, those children whose various Chinese certificates do not record the name they were given at the time of their adoption and by which they are now known. Their disadvantage would be further compounded as, without: the registration of their adoption, neither they nor their birth family members will be eligible to access the adoption contact register.

Where an overseas adoption is not capable of registration, adoptive parents will continue to turn to the English courts to readopt their children as their only route to adoption registration and acquisition of an English birth or adoption certificate. Not every court has been willing to consider such applications. Where courts will, it will be at the expense of court time, and, I suggest, unnecessary involvement of local authorities and CAFCASS.

For this reason, my amendment proposes a safety net. The safety net would permit the High Court to determine in appropriate cases that an overseas adoption can be entered in the adopted children register where that is found to be in the child's best interests.

This is not a trivial issue about procedure. It addresses itself at real human need: the need to have an identity, and the need to be able to prove that identity easily throughout one's life. I hope that the Minister will be able once again to reassure me that the system will not be stacked against these very vulnerable children. I beg to move.

Baroness Barker

My Lords, I rise to support the noble Earl, Lord Howe. I, too, ask for considerable detail as to what the words "other information" are likely to mean. I believe that that would cut down a great deal of present fear and doubt for children and their parents. It would also spare us the extended attention of lawyers and courts, which is always a good thing in my view.

I should like to take the opportunity to say publicly that in Grand Committee the noble Earl, Lord Howe, and I were deeply critical of the department and its handling of inter-country adoptions. I believe that there has been a considerable amount of clarification and improvement on that matter, much to the satisfaction of people who are users of the department's services. That is evident in some of the changes that have been brought forward to the Bill.

This is not churlishness on our part; it is simply trying to make a difficult judgment clearer for all concerned. As we said in Grand Committee, the last thing that any of us wants is to in any way give any quarter to those who would traffick in children or seek to bring in children and get around the necessarily robust systems. I thank the department for the effort that it has made so far. I ask the Minister for a little more clarification.

Lord McIntosh of Haringey

My Lords, I hope that I can reassure both noble Lords who have spoken on the amendment. I start by setting out what we think the amendment achieves. It is aimed at the provision in Schedule 1 that enables an entry to be made in relation to a registrable foreign adoption on the adopted children register, which is maintained by the registrar-general. The amendment would widen the meaning of registrable foreign adoption to include those adoptions where the High Court so orders, irrespective of when or where the adoption order was granted if it is in the interests of the adopted person. That would mean that the registrar-general would be under a duty to make an entry in the adopted children register where the High Court so orders. I believe that that is common ground.

It is clear that the amendment has been tabled out of concern about the particulars or information that adopters must supply to the registrar-general in order for a foreign adoption to be registered. It is clear from what the noble Earl, Lord Howe, said that in some cases it may be difficult to provide the information. He gave the example of the birth name of a child coming from China.

I hope to be able to reassure both noble Lords that the information requirements are both reasonable and essential. The registrar-general has a duty to maintain an accurate record of an adoption. His ability to fulfil that function rests on the quality of the information passed to him.

The particulars required for the registration of foreign adoptions by the registrar-general will be set out in regulations which are currently being developed. He will need to be satisfied that he has enough information to make a registration in the adopted children register. But, in order to make a registration, he needs basic information only. The minimum requirements are the child's date and country of birth, his adoptive names—in other words, not necessarily the birth name, which was what the noble Earl, Lord Howe, was worried about—the adoptive parents' names and occupations, which will clearly be available, and the name of the court and the date on which the adoption took place.

Almost all this information should be readily available to genuine adopters. It is perfectly legitimate to request it from them. Even if the precise date of birth is not known—that seems to me to be the only difficulty in the list that I have given—the registrar-general is prepared to accept an approximate date of birth. He does this now for domestic adoptions and in all cases of general registration where these details are inadequate, such as where the child is a foundling.

If the registration is for a foreign adoption, the registrar-general also needs evidence that the adoption is either a convention adoption or an overseas adoption, as defined in Clause 86. The information which identifies the court and the date when the adoption was made should be sufficient for the registrar-general to establish these facts.

Other information which would be helpful, but which is not essential for a registration on the adopted children register, includes the place or the locality of the child's birth, the full names of the natural father and mother, and any previous names for the child. The information about the birth family name could be needed if an adopted person wanted later in life to have an entry registered on the adoption contact register. Information about the birth family would be necessary so as to link an entry on the register for the adopted person with an entry for a relative.

There are a number of problems with the amendment which would extend the registration of foreign adoptions to adoptions from countries where we are not satisfied that the procedures safeguard the needs of children, birth parents and adopters. However, it is not clear that the High Court, which would be the deciding body, would have any more evidence than the registrar-general to suggest that an adoption should be registered. The amendment also appears to interfere with the registrar-general's function as custodian and administrator of records and registers.

The intention of the provision in Schedule 1 is not to restrict the registration of legitimate overseas adoptions but to facilitate it. I hope that the noble Earl, Lord Howe, is now reassured that only basic information is needed for registration on the adopted children register, and that he will not pursue the amendment.

8.30 p.m.

Earl Howe

My Lords, I am reassured and thank the Minister for setting on the record how the provisions will operate.

Lord McIntosh of Haringey

My Lords, before the noble Earl decides what to do with the amendment, I did not respond to the noble Baroness, Lady Barker, for which I apologise. She talked about delays experienced by applicants. We very much regret those delays and are working hard to overcome them. There is now a settled, experienced workforce in place that processes applications quickly and provides information about procedures in other countries and advice about the process.

Baroness Barker

My Lords, I am happy to note that and thank the Minister for that observation.

Earl Howe

My Lords, I, too, am pleased to hear what the Minister said. He will appreciate that my amendment was intended primarily as a probing device to elicit from the Government the answers to some real and pressing queries on the issue from several quarters. For my part, I was satisfied by what the Minister said; I hope that I am right to be satisfied; if not, no doubt I shall be advised accordingly. With thanks to the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 [Connections between the register and birth records]:

Baroness Noakes moved Amendment No. 87:

Page 45, line 7, at end insert— (7A) The Registrar General shall maintain and make available a list of adoption support agencies registered under section 8 undertaking to provide intermediary support services between adopted persons and birth relatives in accordance with regulations under section 9(1)(b). (7B) On an application made in the prescribed manner by a registered adoption support agency for information relating to a person adopted before the appointed day, the Registrar General shall provide such information held by the Registrar General necessary to obtain a certified copy of the adoption entry relating to a person. (7C) The Registrar General shall not be responsible to any person to whom a list of adoption support agencies is provided for any arrangement made to provide intermediary services between an adopted person and birth relatives or any failure to make such an arrangement. (7D) An adoption support agency which obtains information in accordance with subsection (7B) shall not disclose the identity of the adopted person to any other person or body without the consent in the prescribed manner of the adopted person.

The noble Baroness said: We now come to a slightly odd group of amendments. I shall speak to Amendment No. 87 in a moment, but expect to be able to withdraw it later and to support Amendment No. 96A in due course. While Amendment No. 96A looks rather different from Amendments Nos. 87 and 88, which stand in my name, it is in fact the Government's version of a solution to meet the same, real problem: namely, giving birth relatives retrospective access to information about adoptions to assist them in searching for an adopted person.

The Government have prospectively recognised the human misery that that lack of access to information entails. In Grand Committee, we were all affected by the stories we heard about how lives have been blighted by the inability to contact a son, daughter or other relative lost through adoption. Clause 61 allows information to be given about adopted persons once they are adult, but it will not have retrospective effect, so it will have no effect for several years to come until future adoptees are at least 18 years of age. The Bill contains no information rights for adoptions before the Bill comes into effect, but that is where the need is greatest.

We are not necessarily discussing adoptions that took place in the recent past but those when social attitudes to illegitimacy resulted in a large number of adoptions which mothers, in particular, came to regard as forced on them: during the 1940s, 1950s and even the 1960s. Those adopted children may themselves now be in their 60s; they may have unknown siblings of much the same age; and their birth parents may easily be in their 80s or older. So, for many, the Bill is the last chance to open up the possibility of tracing their lost family members.

That is why, in Grand Committee, we pressed amendments that would have given retrospective rights to obtain information. They had the full backing of the National Organisation for Counselling Adoptees and their Parents and the Children's Society—indeed, I pay tribute to their valiant efforts to find an appropriate formula—but our arguments fell on stony ground. For Report, I first tabled Amendment No. 87, which is similar to an amendment considered in Grand Committee, which, briefly, is a modest amendment to empower adoption support agencies to get information about adoption from the Registrar General. The adoption charities then drafted a further amendment, Amendment No. 88, which sought to address some of the Department of Health's concerns—in particular about the Registrar General's duties, fees, interactions with local authorities and adoption agencies and phased implementation.

I shall not pretend that Amendment No. 88 is perfect in legal terms. I had expected the Minister to chide me on its deficiencies—indeed he may still do so. But that will not be necessary, because last Friday the Government found themselves on the road to Damascus and tabled Amendment No. 96A, which deals with the problem. I know that adoption charities have welcomed that new clause and so do we on these Benches.

I shall of course leave it to the Minister to explain in detail how the new clause will work in practice and do not rule out returning to the detail at Third Reading if necessary. But I hope that he will deal with several questions of mine about the new clause contained in Amendment No. 96A. First, as with so much of the Bill, we know little of how the provisions will work in practice, because the new clause is one long regulation-making clause. Will the Minister tell us when the draft regulations are expected to be available and will he commit to wide and thorough consultation on them?

Secondly, will the Minister tell us when he expects regulations to take effect and whether he expects a phased implementation of the new provisions? In particular, does he expect pre-and post-1975 adoptions to be dealt with differently and, if so, how?

Thirdly, the new clause allows fees to be charged. There is clearly concern about fees charged to adoption support agencies facilitating contact. Their costs must be covered by fees for those who are searching or, as is likely, by charitable funds. Will the Minister undertake that fees charged will be limited to the costs reasonably incurred by those making the charges? Fourthly, will he say something about the availability of Section 64 money to adoption support agencies to enable them to gear up their infrastructure to deal with the new provisions?

Lastly, can the Minister explain why the Chancellor of the Exchequer should have a power of veto over regulations affecting the Registrar General to be made under new subsections (2), (3) and (4) of the new clause? I can understand why he should have a power of veto over fee levels set by the Registrar General, who is in the Chancellor's own empire, but not over the basic regulation-making powers. If the Minister considers the corresponding provision in Clause 65(4), he will see that the Chancellor's powers are there restricted to the matter of fees, not to other regulations.

I am well aware that the Chancellor now thinks that he controls policy in the Department of Health. His Wanless funding review and, more recently, his control of the foundation hospital agenda are proof of that. But I am sure that the Minister will agree that it is not healthy for the Chancellor's powers to creep yet further into the Department of Health's legislation. I beg to move.

Baroness Barker

My Lords, I rise to give the weakest support to Amendment No. 88 and the warmest of welcomes to Amendment No. 96A. I do not want to steal the Minister's thunder, but I have to speak now.

Today is a really good day. I thank the Minister and his department for listening to the arguments that we made with a great deal of conviction and with a great deal of information at our disposal from people who have worked to achieve this change for many years. It would not have come about in the right way without the technical input from the department. On behalf of the charities, I thank the department for finding a way to make a good idea work well and, in particular, for coming up with the safeguards for people who are adopted, which are, perhaps, the most important parts of the amendment. In particular, it is good to see a right for people who have been adopted to give pre-emptive notification to the courts, to the registrar-general and to the adoption agencies that they do not wish to be contacted or wish to be contacted only in certain circumstances.

I do not want to cover in great detail the ground that we went over in Grand Committee. However, I believe that people who gave children away for adoption prior to 1976 have suffered from being unable to break through a barrier erected by the state and gather information about people with whom they have a blood relationship. At Second Reading, I said that that was wrong, and I am glad that we have managed to find a way to enable them not to bring about contact but to try to bring about contact.

Unlike the noble Baroness, Lady Noakes, I have only a couple of questions. I understand why the Chancellor of the Exchequer gets a look-in on this matter, although I stand to be corrected. I have a practical question. How will this be publicised? I have a particular reason for asking that. Noble Lords may remember that, at Second Reading, I talked about birth fathers. I have no doubt that birth mothers will get to hear about the change in the legislation. I do not wish to be sexist in any way, but I imagine that the change will be picked up, in particular, by women's journals and programmes directed at women. However, birth fathers and siblings also have the right, and I am concerned that they should be able to exercise the right to approach an intermediary body.

It has been a strange night. Not only have I agreed with the noble Lord, Lord McIntosh of Haringey, but I am about to say something that I rarely say. I believe that, in this case, it is right to use regulations to bring the measure into effect. It is right because there is still some uncertainty about how it will work in practice and what best practice will turn out to be when we are dealing with the most complex personal cases. We need the flexibility to change practice if it becomes apparent that that would be best for all concerned.

I offer a suggestion about funding. One of the reasons why many of us lobbied hard for the change was the expensive and Byzantine process that people seeking to make such searches must go through, from adoption agency records to bits of historical information that may be incomplete. The key to the measure is the information held by the registrar-general. That should make the process more efficient, and I wonder whether there will be efficiency savings that could be put towards the cost of the real implementation of the measure. I have no doubt that that will be done by people who care passionately about the subject.

All along, we have said that the measure would not bring about a happy ending for everybody. We cannot guarantee that. We are not here to play God; we are here to make a legislative framework in which people can make their own decisions. However, it is a good move. On behalf of the organisations that have worked for this, I give a heartfelt welcome to Amendment No. 96A. It is a just move.

8.45 p.m.

Lord McIntosh of Haringey

My Lords, I am relieved to learn that I need not attack Amendments Nos. 87 and 88 in detail. I had not prepared to; I thought that Amendment No. 96A would be welcome.

When the proposal was debated in Grand Committee, my noble friend Lord Hunt of Kings Heath acknowledged that it sought to tackle the Government's concerns about opening up information on tens of thousands of past adoptions. As the Bill made its passage through, we argued that adoption agencies should not be burdened with the work, as it would draw away their resources for arranging and supporting adoptions for today's children. That was proposed in the previous amendments.

Many adoptions were arranged privately. In such cases, there were few records other than the report about the placement that the adoption agency may or may not hold. The noble Baroness, Lady Barker, is right to say that there will not be a happy outcome in cases for which records simply do not exist. Before 1984, the obligations on adoption agencies to keep and record information were not as comprehensive as they are now. Monitoring and performance management was not as rigorous: I do not think that anyone had heard of monitoring and performance management in the public sector.

If records have been lost or if the adoption was a private one, in which no adoption agency was involved, the only probable source of identifying information is the sensitive information contained in the adopted children register maintained by the registrar-general since the Adoption of Children Act 1926. Clause 77 places a duty on the registrar-general similar to that imposed by Section 50 of the Adoption Act 1976 to maintain the adopted children register and provide certified copies of entries as evidence of adoption. We have already discussed the content of those registers.

Subsection (2) provides that the register itself is not open to public inspection or search. The index is open, but the register itself is not. Opening up access is a radical step and should not be considered lightly. In Grand Committee, we pledged that we would consider the role of adoption support agencies in the disclosure of the information. It is sensitive, but, in cases for which there are no other records, it may be the only way to trace an adopted person to seek their consent for disclosure. We have considered the matter carefully, and we have consulted people involved with adoption. We have decided that, on balance, adoption support agencies should be able to get access to information on past adoptions, provided that there are robust safeguards to ensure that the information is protected and is disclosed only if the informed consent of the adopted adult is forthcoming. Amendment No. 96A builds on Amendments Nos. 87 and 88.

At the weekend, there were stories in the press that the Government's scheme would provide a right for birth parents to make direct contact with the adopted person, even with adopted children. I must reassure adopted people, for whom it could be a worry, and the adopters that that is not the case. The new scheme requires that contact be made by an adoption support agency that is registered to provide intermediary services. The identity of the adopted adult cannot be disclosed without their informed consent. There is no prospect of adopted children being asked that question.

The Government's amendments do not mirror the text of the amendment tabled by the noble Baroness, Lady Noakes, but they build on it. Amendment No. 96A inserts a new clause after Clause 96 that amplifies the powers in Clause 9 to make regulations for the disclosure of information about adoptions made before the Bill is enacted. I am grateful to the noble Baroness, Lady Barker, for saying that the regulation-making power was the right route. We intend to use the regulations to establish a scheme that provides for registered adoption support agencies to operate an intermediary service for contact between adopted adults and their adult birth relatives. On receiving an application from the birth relative, the ASA would establish the identity of the adopted person, seek to trace him and, if he consents, disclose his identity to the birth relative and facilitate contact between them. An adopted adult will be able to ask an ASA to provide the same service if he wants contact with a birth relative. The provision would apply only in cases of adults adopted before the appointed day.

That builds on Amendments Nos. 87 and 88 by enabling a registered ASA to use information from the adopted child register and the adoptive contact register maintained by the registrar-general. But it goes further. It enables the ASA to obtain tracing information and advice from the adoption agency. The three key elements are: first, an ASA can approach an adoption agency or the registrar-general on behalf of the applicant who wishes to have contact with the subject of the application. Secondly, an adoption agency and the registrar-general will have a duty to provide information to the ASA which may be used to trace the subject and to provide counselling to him and inform his consent decision.

Thirdly, the ASA will be prohibited from disclosing any information about the subject of an application to the applicant without the informed consent of the subject. The intention is to set out the details in the regulations after consultation with the adoption stakeholders. That brings me to the first question of the noble Baroness, Lady Noakes. The regulations will appear some time next year. The consultation period will probably last into 2004. It has to be carried out properly.

Baroness Barker

My Lords, we have recognised throughout the debate that many of the people for whom the measure is particularly important are very old. For them until 2004 may be too long. I therefore ask the Minister whether the department will consider, in exceptional circumstances—and we can imagine what those might be—making exceptions before the regulations are finalised.

Lord McIntosh of Haringey

My Lords, I do not see how one can do that. Of course I shall take that back and I will write to the noble Baroness, Lady Barker, about it, but she herself made clear the need for regulations to get the matter right. That is why we cannot write it into the Bill. We plan that the regulations will come into effect with the Bill; we are not deliberately delaying them beyond the Bill's implementation, but I cannot see that it can be done quickly. I do not see how there can be exceptional cases without potential injustice.

I do not know whether the House wishes me to go through the provisions of Amendment No. 96A. I shall do it rapidly. Proposed subsection (1) provides that the power in Clause 9 can be used to make regulations to provide for,

1. "(a) assisting persons adopted before the appointed day who have attained the age of 18 to obtain information in relation to their adoption, and
2. (b) facilitating contact between such persons and their relatives".

To achieve those ends, we intend to use the power in new subsection (2) to provide for regulations to place functions on registered adoption support agencies, the registrar-general and adoption agencies.

New subsection (3)(a) will provide us with the power through regulation to set out the circumstances where registered adoption support agencies, the registrar-general and the adoption agencies are to be able or required to disclose information. New subsection (3)(b) provides us with a power through regulations to require the court to disclose information to an ASA. That will enable the ASA to contact the adoption agency involved in the adoption to ensure that it is aware of any information the agency holds that is relevant to the case with which it is dealing.

It is essential that the sensitive identifying information that the adoption support agency will be able to obtain from the registrar-general or the adoption agency is properly safeguarded and disclosed only in certain circumstances. New subsection (3) also makes provision to provide for conditions to be attached to the disclosure, including the further disclosure of information.

I turn to the third question of the noble Baroness, Lady Noakes. The resource implications for adoption agencies of assessing and providing information to adoption support agencies are difficult to predict. No one knows how many applications there will be. It is important that the service does not reduce the resources available to adoption agencies. I confirm that we have already committed ourselves to the use of Section 64 money for that purpose. We shall be consulting on the detail.

The noble Baroness asked me whether the fee levels would be limited to costs. They will be limited to reasonable costs; I am grateful that we are in accord on the matter. Regulations that will place requirements on the registrar-general will be subject to the approval of the Chancellor of the Exchequer, as provided for by new subsection (6). The reason why the Chancellor of the Exchequer is involved is that the registrar-general is the national statistician and reports to the Chancellor of the Exchequer rather than the Department of Health.

New subsection (7) provides definitions for the appointed day, for a registered adoption support agency and for a relative in relation to an adopted person. The use of regulations, coupled with the powers in Clause 136, will enable the scheme to be phased in to help registered adoption support agencies, adoption agencies, the registrar-general and the courts to manage the demands from applicants for the new service. That will allow for the scheme to apply first to adoptions made before 12th November 1975—the older people to whom the noble Baroness, Lady Barker, referred. The second phase would then apply the scheme to all adoptions made before the appointed day.

The Government will consult on any proposed phasing-in of the scheme. This is a balanced, workable scheme with safeguards to protect information that adoption support agencies will be able to obtain. It provides for the flow of information between one agency and another, for it to be passed to the subject of an application but not to the applicant, and for information to be disclosed only if consent is forthcoming.

We need to ensure that the adoption support agency can pass certain information back to the applicant, such as where the subject of the application has died. In those circumstances, others could be identified by the disclosure of identifying information, so we need to consider, for example, providing for the adopters to be asked for their views. Through regulations we will make provision for such circumstances and others where a person is not able to give informed consent.

We will consult fully on the drafting and accompanying guidance and I say to the noble Baroness, Lady Barker, that we will be looking to give publicity to the scheme when we have something definite to say.

I turn to efficiency savings. We are enabling and requiring adoption support agencies to do things they do not do at present. Section 64 money will be available to them for restructuring. Some public expenditure will be involved; whether there are efficiency savings remains to be seen.

Amendment No. 169A seeks to insert in Clause 144 a reference to the new clause for pre-commencement adoptions information to enable the appropriate Minister to appoint a day when it shall commence. In connection with the new clause we will also be tabling at Third Reading a number of consequential amendments. I am grateful to the favourable reception that has been given to the clause and I hope that the noble Baroness, Lady Noakes, will not press Amendment No. 87.

Baroness Noakes

My Lords, I thank the Minister for that comprehensive description of the new clause. I associate myself with the rather more forceful welcome to it given by the noble Baroness, Lady Barker. The societies have worked hard on this for many months and I know that they are delighted with it and look forward to meeting the challenges in its practical application. I therefore have much pleasure in withdrawing Amendment No. 87 and look forward to Amendment No. 96A when we reach its place in the Marshalled List. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 88 not moved.]

Lord Hunt of Kings Heath

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.