§ [The Deputy Chairman of Committees (Lord Skelmersdale) in the Chair.]
§ The Deputy Chairman of Committees (Lord Skelmersdale)
Resumption of Grand Committee in the Adoption and Children Bill.
Clause 55 [Information to he kept about a person's adoption]:
§ Earl Howe
moved Amendment No. 80:Page 33, line 2, at end insert "which shall include all the information necessary to fulfil the duty imposed by virtue of section (Disclosure of information regarding a person's adoption)(2)The noble Earl said: I rising to move Amendment No. 80, I shall speak also to Amendment No. 81. These amendments deal with a fundamental human right; the right for an adoptive person to be told, before entering adulthood, that he or she is adopted. Most adoptees will of course already be well aware of their adopted status, long before they reach the age of 18. Many will have been adopted at an age when they knew exactly what was happening to them. However, there will still be many who will have been adopted as babies. They will have no knowledge of their origins unless they are told about them when they are old enough to understand.
Adoptive parents, if they are sensitive and caring, will in the majority of cases take it upon themselves to disclose this information to the child in a sensitive way at what seems to them an appropriate moment. There are ways in which this can be done that minimise the risk of angst or trauma in the child. However, we need to ask what should happen when that does not take place; when a child becomes an adult and, for whatever reason, continues to be unaware of his or her background.
There are two main reasons for concern here. The first is that for an individual to discover accidentally, as an adult—possibly even when well into adulthood—that he was adopted and that the two people he had previously regarded as his genetic parents were not his genetic parents is one of the most shattering experiences it is possible to imagine, short of bereavement. We should not allow for the risk of it happening. The second consideration is very practical: unless someone knows that he or she was adopted, it will be impossible to guard against the possibility of incestuous contact with siblings who, unknown to them, may have been brought up in the same area.
278GC While I am instinctively reluctant to impose further duties on the state, I see little alternative but to do so in this particular context. It should be up to the public authorities, purely as a longstop arid failing all other safeguards, to fulfil this duty of care to adopted individuals. I say that because the state has created that individual's status as an adopted person; the state, therefore, has a duty towards him. It is as simple as that.
I am well aware that such a duty implies the need to monitor the individual's whereabouts until the age of 18 and I fully admit that this would create additional administrative burdens, but the burdens are necessary. It should not be beyond the wit of officials to come up with a methodology that does not involve a huge bureaucratic apparatus in order to maintain the relevant records. To a large extent, the records will be maintained anyway. It is simply a question of keeping track of an adult till his 18th birthday, which is not a particularly onerous requirement in itself.
I hope that the Minister will be sympathetic to this amendment and to the other in this group. I beg to move.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
First, I thank the noble Earl, Lord Howe, for raising what I agree is a very important issue. However, I feel that his solution may take us down some rather difficult paths, one or two of which he alluded to as regards the practicality of ensuring that what he proposes in the amendment takes place and about extending an element of state intrusion. That is a particularly difficult issue when we come to look at the issue of human rights in relation to the child and to the respect for private and family life. There are some difficult issues here which need to be considered.
As regards the existing provision, there is provision for the disclosure of information to adopted people and their birth relatives under existing legislation. Adopted adults have the right to access a certified copy of the record of their birth from the registrar general, which will contain the names of their birth parents and their address at the time the record was made. Over and above that, regulations give adoption agencies a discretionary power to disclose information, including identifying information to adopted adults and their birth relatives. The courts may also exercise their discretion in disclosing information from their records of adoption cases. Adoption agencies have a wide discretion, therefore, under current legislation to disclose information.
While I readily accept that current practice is variable. The adoption law review and the adoption White Paper published in December 2000 found there were wide variations. In some cases, agencies had passed on sensitive identifying information without consulting the person who would be identified.. We propose to address these issues in two ways: first, for future adoptions, setting out a clearer framework in primary legislation; and, secondly, by taking a number 279GC of steps to ensure that for past adoptions agency practice is improved, made more consistent and more sensitive.
We want people to have greater access to better means to deal with the exchange of this information which, given the circumstances of past adoptions, may be particularly sensitive. We want to do this in a way that recognises the practical differences between legislation for future adoptions in the context of a comprehensively regulated adoption system and past adoptions that may have happened in very different circumstances with, or indeed without, the involvement of an adoption agency and in the context of little regulation and poor records.
The provisions in the Bill give a systematic and clear process in primary legislation for future adoptions for taking forward an application for identifying information held in their records. For example, where an agency decides to process an application seeking identifying information about an adult, it will have a duty to take reasonable steps to seek the views of the person who would be identified. The adoption agency may disclose the identifying information having regard to all the circumstances, prescribed matters, any express use for the person the information is about and the adopted person's welfare.
As regards what I might describe as pre-Bill adoptions in a later group of amendments, I will explain the measures we are taking to help achieve the same results, while recognising some of the practical issues alluded to by the noble Earl that arise to the different contexts of these adoptions.
As regards the specific amendments, Amendment No. 81 would place a duty on an adoption agency to inform the adopted person of his adoption. It also allows regulations to be made which could set out the method by which the agency carries out this duty, and provides that the duty would not apply to certain groups of adopted people. As the adopted child becomes by law the child of the adoptive parents, the agency has no further role after the time of the adoption order, except in so far as there is an agreement for ongoing support or the family initiates the agency's involvement by requesting support. The fact that the state has facilitated the adoptive family does not reduce the privacy that the family is entitled to expect. Although nowadays the vast majority of adopted people will know about their adoption, the agency cannot be certain unless it has had recent contact with the family. In almost every case the adoption agency would have to contact the family. Adoption agencies may find themselves in a position where they are unable to fulfil this duty, for example where the adopted person cannot be found or where compliance with the duty would constitute a breach of the European Convention on Human Rights.
As the noble Earl, Lord Howe, suggested, there is probably not a large number of adult individuals who do not know of their adoption. They will probably have been very young when they were adopted and they will probably be the most difficult to trace. The noble Earl, Lord Howe, thought that it would be perfectly possible 280GC for my officials to come up with a straightforward, streamlined scheme of administration. I am afraid that that is not normally the noble Earl's view. In this case, however, the noble Earl has every confidence in the department being able to do that.
However, one cannot just pass over some of the administrative difficulties, even with the skill and expertise of my own department at the helm. In these cases, the agency will be seeking to contact the adopted person some 15 to 17 years after the adoption and the records the agency holds are likely to be out of date. I am informed that the average family moves home every seven years. The other practical issue here is that trying to keep track of adoptive families could be an intrusion as agencies would need to contact them to confirm their address or ask them to notify the agency of their home moves. It could also place a significant administrative burden on adoption agencies—and we will come to that problem in a later group of amendments on information—thus drawing away a significant proportion of their workforce and resources from the primary aim of arranging and supporting adoptions.
Where an adopted person or his family are not currently in touch with the agency, we would also have to face up to the fact that they may be reluctant to meet with it, or indeed alarmed by the initial approach. Where the adopters have not informed their child of the adoption, some of them may then do so, prompted by the inquiries made by the agency. Others, however, may attempt to obstruct access to the adopted person if he or she is living with them, or to refuse to pass on details of where he or she is now living. If the agency is able to meet with the adopted person, the probability is that the agency will be informing him of something he already knows. Where he does not, it could well come as a shock to those who have been living under the impression that their adopters were their natural parents. For those who learn of this information other than from adopters, the experience could well be distressing. The approach may also have consequences for the family unit as a whole, and in particular the adopted person's siblings. In some cases these siblings may themselves be adopted but as yet be too young to be informed by the agency.
We have consulted the Association of Directors of Social Services on this issue. They are concerned that in a few cases where the adopted person is particularly vulnerable he could be put at risk by the agency's intervention in his relationship with his adopters, for example where he is suffering from mental health problems.
I say to the noble Earl, Lord Howe, that I have no doubt that the adopted person should be informed of his or her adoption. The essential questions are who should inform the adopted person, and how and when it should happen. Most people would agree that the adoptive parents are best placed to inform their child of his or her origins and background. One has to rely on their good judgment to know when the time is right for that child. As the legal parents of the child, the adopters are responsible for the child's welfare and with their knowledge they should be best equipped to explain these facts to the adopted person. However, we need to ensure 281GC as far as possible that adopters understand that part of their responsibility to their child is to inform him at the appropriate time of his adoption.
In the light of the amendments and the substantive point put forward by the noble Earl, and—I hope that he will accept this—the practical difficulties they pose, we believe that the best way forward is to formalise a commitment by prospective adopters to be open with their child about his adoption. Therefore, we propose that, as part of the assessment process, prospective adopters would be asked to sign a formal commitment to inform their adopted child of his adoption before he reaches the age of 18. We intend to require adoption agencies to ensure that this is part of the assessment and recommendation process for adopters, using the general regulation-making power under Clause 9 of the Bill. We shall support this with clear guidance to adoption agencies. We have also discussed this matter with the British Agencies for Adoption and Fostering. They agree that the proposal I have outlined is:The best approach, given the practical difficulties of requiring the adoption agency to inform the adopted person of his adoption".This formal commitment would also be submitted to the court as part of the papers that accompany the adoption application. Although the written commitment would not be legally binding, it would reinforce the importance of the adopters informing their adopted child, especially when combined with the advice they will receive and the support available from the adoption agency. I hope that the noble Earl will consider that I have gone as far as I can in terms of the practical difficulties that I envisage with his amendments. However, I hope that he will recognise that he has raised an important matter.
§ 3.45 p.m.
§ Lord Campbell of Alloway
Will the Minister tell the Committee what will happen if this formal commitment, which is not legally binding, is not honoured? Surely the spirit of my noble friend's amendments, which I wholly support, has to come into play. That has to he considered. I am not suggesting that, as drafted, Amendments Nos. 80 or 81 are, of necessity, totally correct, In Amendment No. 80, "all" creates tremendous difficulties as regards the European Convention on Human Rights. I shall not take a lot of time but I merely wish to indicate some of the points.
On Amendment No. 81, which, again, I support in principle, one would have to introduce—would one not?—some sort of safeguard that the regulations would require the best endeavours to discharge—something of that kind. I am not here to seek to indulge in drafting, only to support my noble friend, in principle, on both amendments. I respectfully ask the Minister to give further consideration to this before the next stage of the proceedings.
§ Lady Saltoun of Abernethy
I confess that I am rather horrified. The age of 18 is far too late to tell an adopted person that he has been adopted. I believe that the shock would be very great. The shock would be very great even at a much younger age. There will always be a shock unless one is brought up from the time one can speak 282GC and understand to know that one has been adopted. That ought to be part of what an adopting couple are told at the time of assessment. However, by the time a child is eight, nine, 10 or 11, let alone 18, he or she will be very shocked. I know that I would have been if someone had told me that I was adopted. If it is riot done in very early childhood, if possible it should not be done at all. I am not interested in the danger of incest. I am sure that incest has been taking place down the centuries without anyone ever knowing about it. There are times when it is better that it happens and nobody knows about it.
§ Lord Hunt of Kings Heath
One should always be wary of talking about incest, particularly in your Lordships' House. I realise that I am now in deep trouble, from which I shall try rapidly to extricate myself.
I believe that the noble Lady, Lady Saltoun of Abernethy, put her finger on the problem. That is why I sympathise with the principle enunciated by the noble Earl; namely, that adopted children should be informed. However, if we were to accept either the amendment or the principle behind it, we could end up with the kind of situation that the noble Lady described. This is why I am not at all convinced that the route down which we should go is by way of the amendments, or the principle that it seeks to put forward.
Nor am I particularly convinced that any written commitment given at the adopter-approval stage should be legally binding. One has only to imagine the circumstances in which such parents could be taken to court; indeed, the adopted child would have to experience his adoptive parents being taken to court for not informing him that he had been adopted. I believe that one should think very carefully before one went down that path.
We also need to recognise, first, that it is good practice to tell the child; and, secondly, that the culture has changed in adoptions. Surely, it is very unlikely that adoptive parents who now put themselves forward for consideration would be able to avoid this. The attitude of the potential adoptive parents to telling the child would be one of the factors that would help the agency come to a view as to whether such people were worthy of being considered for adoption.
As regards the issue of incest raised by the noble Earl, I would draw his attention to Clause 78(7), which provides for the registrar-general to inform an adopted person, on application to him, whether or not it appears from the register, and other records, that the applicant and the person he intends to marry are related. I hope that that goes some way towards meeting the noble Earl's point.
§ Earl Howe
I am most grateful to the Minister for his extremely considered and thoughtful reply. I am pleased that he regards this as a genuine issue. I certainly believe it to be so. The question I ask myself is this: which is worse in terms of human rights, an intrusion into someone's private life, or to allow for the possibility that someone could grow up ignorant of his origins?
283GC I believe that the Minister has implicitly acknowledged the importance of someone being made aware, in some fashion, of the fact that he has been adopted. I should add immediately that I accept the force of the points that he made about practical difficulties. Obviously, such points went through my mind as I thought about this matter. There is no perfect answer to this problem. I realise that the BAAF, which has immense experience in this field, will have thought about this very carefully. I must take on board its response to the Minister's approach on this issue.
I agree with the noble Lady, Lady Saltoun of Abernethy, that 18 is too late to be told that you are adopted. In the normal course of events, as I said, one would expect a young person to have been told long since that he or she had been adopted. I was seeking merely to establish some sort of longstop answer to this. I do not agree with her that ignorance is bliss; there is a genuine right for someone to know about his origins and the later it gets in someone's life, the worse it is.
Nevertheless, I shall read and reflect carefully on the Minister's comments, for which I thank him. I shall consult on the matter and consider whether or not it is necessary to bring it back on Report. I somehow doubt that it is in the light of what he has said but in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 agreed to.
Clauses 56 and 57 agreed to.
§ [Amendment No. 81 not moved.]
§ Clauses 58 and 59 agreed to.
§ Clause 60 [Disclosing protected information about adults]:
§ Baroness Noakes
moved Amendment No. 82:Page 34, line 43, at end insert—() This section shall apply to all adopted persons, whether adopted before or after the coming into force of this Act.The noble Baroness said: I rise to move Amendment No. 82 and to speak also to Amendments Nos. 82A and 85. These amendments take us to the important issue of retrospection, which is a subject highlighted by several of the organisations with an interest in adoption, in particular the Children's Society and NORCAP.
These amendments are particularly important because of the repeal in this Bill of the Adoption Act 1976, which currently in Section 50(5) allows the High Court to release information. This provision is narrow but did, for example, facilitate the recent reunion of triplets horn in 1932. Clause 78(4) allows the provision of information about people adopted before this Bill but only in exceptional circumstances and Clause 78(4) is considerably narrower than Section 50(5). which was itself narrow. Thus, the problem of getting information about past adoptions will become even more difficult once this Bill is passed.
I do not need to rehearse the history of adoption. The stigma of illegitimacy often resulted in massive pressures on mothers to let their children be adopted with no further provision for contact. Many lived to regret that 284GC and I am sure that Members of the Committee have heard of or know those whose lives have been blighted by the loss of a child through virtually enforced adoption.
Since 1975, adopted adults have been able to obtain their birth records and thus start the process of searching for their birth parents and more than 70,000 have already done so. However, that is one-way traffic; it does not allow for the birth family to start to search for their lost child. This Bill puts right the anomaly for new adoptions and will allow birth relatives to apply for information about a family member who has been adopted. As such, it is welcome, but it does not go anything like far enough and will have no practical impact for many years to come. There is no logic to refusing the facility for previous adoptions. Indeed, it is in that area that the need is greatest, given the unenlightened approach to illegitimacy and adoption in the past. There are a couple of generations of parents—mostly but not only mothers—who desperately need to try to contact the child whom they lost.
Amendment No. 82 inserts a new subsection into Clause 60, which allows people to apply for protected information about adopted adults, giving retrospective effect to the clause. When this amendment was considered in Committee in another place, the Government made much of the practical difficulties which would result from giving retrospective effect to Clause 60. In the light of that, Amendment No. 85 is put forward as a different approach. Amendment No. 85 amends Clause 78, which deals with the adoption register.
Amendment No. 85 puts four new subsections into Clause 78. The first requires the registrar-general to maintain and make available a list of adoption support agencies to provide intermediary support services between adopted persons and birth relatives, all of course subject to regulation. It does not require the registrar-general to vet the agencies, simply to maintain the list. The third subsection makes it clear that the registrar-general has no responsibility for the intermediary services provided. The amendment therefore does not place a particular burden on the registrar-general.
The meat of it is in the second subsection which requires the registrar-general to provide information held by him on adoptions before 1975, so that the agency can obtain a certified copy of the adoption entry. The consent of the adopted person is important, as the fourth new subsection makes clear.
The amendment, which has been drafted by NORCAP and the Children's Society, overcomes all the practical difficulties raised by the Minister in another place to the equivalent amendment to Amendment No. 82. In particular, the problem of incomplete records in adoption agencies and local authorities will not be a problem. The registrar-general has a complete record of adoptions.
The adoption support agencies will take the burden and hence will not drain resources away from adoption agencies which can continue to prioritise their work on to the important task of getting more children adopted.
285GC The Minister in another place said that there would be too much demand for this information. However, provided that the demand can be satisfied without impact on today's adoptions, I believe that that argues for the amendment and not against it.
It may well be difficult to trace people, but today's technology provides new opportunities for search, and making the information from the adoption register available gives people the chance to search.
I should point out that the amendment does not apply to adoptions between 1975 and the appointed day under this Bill. It applies only to adoptions before 1975. It is not therefore wholly logical as there will be no information provision for birth relatives of persons adopted between 1975 and some time in 2002. That is something on which we may want to reflect further before the next stage of the Bill.
Finally, Amendment No. 82A is very specific about the ability of siblings to obtain information about their adult adopted siblings. This has full retrospective effect hack to the start of legal adoptions in 1926. Under the amendment, an adoption agency would obtain information from the registrar-general under Clause 78, and there are the usual safeguards for the views of the adopted adult or, indeed, the involvement of the High Court authorising the agency not to disclose in appropriate circumstances.
This is designed to help people trace their long-lost adopted brothers and sisters, who have been separated by adoption. I spoke earlier about adoptions under a different social climate where there was de facto an endorsed solution separating children from their mothers. However, there were often some innocent bystanders in that process; there were children either then existing or children who came later in a subsequent union. In all those cases, the emotional needs of siblings, who were innocent as far as the adoption was concerned, can be as important as those of the mother.
The Minister may well try to beguile us with plans to promote the adoption contact register, and bolster intermediary support services. I thank his office for sending me a copy of a letter from the department of 10th July which sets out the Government's plans. Those ideas, which are indeed welcome, will not replace a right for birth relatives to obtain information about adopted persons.
All of these amendments in different ways deal with the needs of the families affected by adoptions in the past. We should not ignore the pain that still exists today for people affected by those adoptions. I welcome the Bill for its prospective effect but do not believe it would be responsible for this House to lose this opportunity to give hundreds or thousands of individuals a last chance to connect their past or their present. I beg to move.
§ 4 p.m.
§ Baroness Barker
During Second Reading I spoke of how other parts of the Bill had been picked up in the press as very important and I did not think that they were. However, I believe that this is one of the most important parts of the Bill. The key reason for that is timing, and I shall come back to timing at the end of my 286GC remarks. I wish to deal with three particular points primarily in relation to Amendment No. 85: first, why searches should go via the registrar-general; secondly, why siblings should be included in this; and, thirdly, why regulations are simply insufficient in this matter.
The first and most important point to make is that the matter needs to go via the registrar-general because that is the only place where complete records exist. Adoption agency records are incomplete and, indeed, a very high percentage of the adoptions we are talking about were private adoptions. It was were perfectly legal until 1975 for there to be private adoptions, and many of them were, so there are no records. The Minister will probably argue that it is not unlawful now for birth parents to make searches, and indeed they do primarily via the Children's Society. It is not unlawful, it is just extremely difficult because it is extremely difficult to get the correct information.
I wish to echo the point made by the noble Baroness, Lady Noakes, about the statements made by the Minister in another place, Miss Jacqui Smith. In Hansard of 16th May 2002 at cols. 1016 to 1020, she eloquently set out the reasons why this will not happen; this will not be a priority if it is left to regulation. She, too, referred to the fact that information was not comprehensive, that many adoptions were private, and that the matter will not be given any priority when most adoption agencies will now quite rightly be consumed with the arrangement of new adoptions.
I have to make an additional point—and the Minister will correct me if I am wrong—that legislation is not retrospective unless it is expressly so. As far as I understand it, there is no retrospection in the Bill. Perhaps he can guide me on that.
I suspect the Minister will tell us that guidance is forthcoming and I thank his department for sharing with us the letter of 10th July. I notice that the letter of 10th July has a cut-off date for response of 26th July. As far as the Department of Health regulations on this sort of thing go, that is quite a long time. On the intercountry adoption Act regulations, his department surpassed itself by issuing a document on Maundy Thursday with a return date of the following Tuesday and not setting out any of the organizations—
§ Lord Hunt of Kings Heath
The noble Baroness will be pleased to know that that is all part of our streamlined process.
§ Baroness Barker
It is interesting to know what the Minister thinks we should all do over the Easter weekend. That is a very quick turnround. The more serious point is that there is a history going back to the Second World War of regulations being promised on this subject and not happening. That has been the case for the past decade in particular. The letter from the Department of Health talks about encouraging the wider provision of intermediary services. It does not talk about requiring there to be higher quality intermediary services. It is all couched in extremely tentative language.
In the face of the other pressures on adoption, about which we have spoken throughout the passage of this Bill, there is no reason to believe that this will be any 287GC more of a priority. In fact, in following recent consultations, I gather that some local authorities which used to provide this service have stopped doing so and indeed, only 50 per cent of authorities in England operate an intermediary service. When local government re-organisation hits and unitary authorities come into play, there is every reason to believe that that percentage will go down.
Much is made of what the department's intentions are. It is important to note that the document we were given last month, Providing Effective Adoption Support, does not mention birth parents. Yet again, they fell off the agenda, as they always have done.
In 1976, when this country took the bold step of introducing the measures which enabled adopted people to search for their parents, we led the way in the world. There was a great deal of trepidation at that time about what might happen and the potential disappointment and hurt to individuals. Except in—so far as I know—one case, that has been an unqualified success, so much so that other countries in the world followed our lead. Now, however, we find ourselves trailing yet again because Canada, New Zealand and Australia have retrospective legislation for birth parents while we do not. It is difficult to see why not.
On the issue of siblings, I wanted to thank a Mr Robin Harrit, a correspondent who has written to a number of noble Lords. He has set out for us his difficulties in trying to trace his seven siblings, all of whom were adopted. I, too, must disagree with the noble Lady, Lady Saltoun of Abernethy. Perhaps I might take a different view and say that if one knew that one was committing incest, that might be a different matter, but when it happens and you do not know, that is wholly wrong. It is actually wrong in both cases.
§ Baroness Barker
I see the point the noble Lady was making, but I still believe it is better that individuals have clear knowledge about who they are and who their relatives are.
A great deal will be made about the potential cost and the numbers of people involved—I shall return to the question of costs shortly. In my researches on this subject, I have been trying to determine what the potential scale of the problem will be. The Library has provided me with the list of annual adoptions, which total 867,355 since 1927. There was clear bunching from 1945 to 1949, at the end of the War, and from 1964 to 1975. In another place, it has been argued that 867,000 will mean a huge burden.
However, it is important to point out that in this country in any year, approximately one-third to one-half of all adoptions are step-parent adoptions. Secondly, since 1975, most adoptions have been of children from public care and those children have gone into adoption with a great deal of knowledge about their families of origin.
288GC Another interesting fact is that until 1950 adoptions were not private. Serial numbers started to be used only in 1950. Prior to that, an adoption application to a court was by a named couple to adopt a named child from a named person. To some extent, therefore, we are beginning to whittle down that total figures of 867,000, which is an absolute figure.
We then come back to the issue of cost. Having spoken to some of those involved in the issue, I know that they would pay anything for this information. This information means more than anything else to them. A system such as that proposed in these amendments which operated via the registrar-general would be more direct and more effective. It would allow people to spend much less time than they do now in chasing insubstantial leads and half-remembered records. They would be able to go straight to the necessary information.
As we discussed on Second Reading, whatever action we take will come with no promises of success for the individual. I think that those affected by this matter understand that, in proposing this amendment, noble Lords are not guaranteeing success at all. However, I have come to the conclusion that some of the arguments put forward so far by the department are rather hollow, particularly those in relation to cost. The department's arguments about raising people's hopes ring particularly hollow. These people's hopes have been raised and dashed for years. For years on end they have been promised regulations, but those regulations have simply not materialised.
I hope that the Minister will indicate his willingness to include in the Bill these provisions tabled by the noble Earl, Lord Howe.
§ 4.15 p.m.
§ Lord Clement-Jones
The noble Baroness, Lady Noakes, and my noble friend Lady Barker have made an incontestable, rational argument for this group of amendments. Unashamedly, however, I shall briefly make a strong emotional case for the amendments. We must not lose sight of the fact that there is a necessity to legislate, and legislate now, for an entire generation of birth parents. If we do not legislate now, we shall miss an opportunity. As we know, adoption and children legislation of this kind comes but once in a generation.
In addressing this issue, I should like to cite two letters I have received which outline two case studies that have affected me deeply. I think that we have all received a lot of correspondence on the Bill. Emotionally, however, the retrospection issue has touched me more than any other aspect of the Bill. I shall start by reading out a letter from an 80 year-old correspondent, a birth mother who gave up her child for adoption many years ago, in the late 1940s, I think. She writes:I expect that many mothers like me held themselves together with the secret belief that one day the baby, now adult, would search for and find them. This dream of eventual reunion totally ignored the knowledge on the mother's part that the law had been expressly designed to make this impossible but in your dreams anything may happen. In my case, and many other women, of whom I have met quite a few, that dream could never come true. It took me 12 years of searching and importuning to be given the information that my daughter had died in 1958, aged 11. At that stage, I was 76 and my daughter would have been 51. Even then I was not allowed to know 289GC her adopted name or even the date on which she died. A solicitor and a QC gave their services to help an appeal to the High Court. The Appeal failed.Because, by chance I have some skill with words and the confidence to use them, I was interviewed for a number of TV programmes and numerous newspaper pieces. These factors cumulatively must account for my receipt, anonymously, of the information needed to get in touch via an intermediary with the remaining family of my daughter who welcomed me with both sadness and joy. We remain in contact.Four years on and just after my 80th birthday, I still hope to see the day when birth relatives, especially siblings who had no part at all in the adoption, will be set free, able if they wish to get the information needed to send a message to someone whom they had loved and kept in mind down all the long years since their birth. The message says, 'I am here, I have always loved you and I want contact, if you choose it and in whatever way you choose"'.It is a very moving letter.
The issue of siblings is also extremely important, and adopted siblings have found huge difficulties as well. I was very touched by another letter from somebody who discovered that they had a brother. The letter states:A few years ago I discovered that I have a brother. He was born in 1945 to my then unmarried mother. She nursed him for seven months then put him up for fostering. It was after the death of my father that a distant relative told me, an only child, that I might have a brother or sister.At the age of 45 it came as a bit of a shock, but I was happy that at long last I had a sibling and set about finding them. I didn't get very far. A birth certificate for—X—was fairly easy to find, as were the details of his first seven months. The next stage was to register my interest with both the adoption register at"—Y—and with NORCAP … Now I have to wait and wait and wait until a 57-year-old man discovers that he is adopted and may be interested enough to register his name on the corresponding page of the register.I have gone from shock to euphoria and to complete dismay. The procedure is extremely difficult to unravel as it is. With the proposed legislation the task will be made even more impossible.Obviously my interests lie in only one small piece of the legislation. However there are thousands in similar dilemmas, there are thousands desperately seeking out brothers, sisters, mothers, fathers, sons and daughters. Many wish to meet up with their blood relatives hut many such as myself would accept just the truth if nothing else were possible".I think that those two letters, very movingly, speak for themselves.
§ Lord Hunt of Kings Heath
I should like first to pay tribute to the contributions that have been made—both, in a sense, to the rational and to the emotional, as the noble Lord, Lord Clement-Jones, put it. I, too, have read some of the stories of those who have tried to discover their adopted children, and stories of adopted children who have attempted to discover their birth parents. They are very moving indeed. I hope that, in my response to these amendments, noble Lords will not underestimate my sympathy for the points made in this debate.
Equally, I have to bear in mind the practical implications of what is being proposed. We have to recognise that—in reforming the adoption law, and in reforming the practice of local authorities, adoption agencies and all those involved in adoption—we seek to 290GC put in place a much enhanced service which will require tremendous effort on the part of all those involved. The balance of the argument essentially rests on the Government's concern that the kind of duties proposed in the amendments would impose such great duties on the agencies concerned that they could put at risk the ability of those agencies to focus on the essential task of improving current and future arrangements for adoption.
The noble Baroness, Lady Barker, very ingeniously tried to peel off some considerable figures from the 875,000—an approximate figure—adoptions that have taken place since passage of the Adoption of Children Act 1926. She made the point that many of those adoptions relate to step parents. I am happy, between now and Report, to look at those figures and to discuss them with her. Ultimately, however, I suspect we will still be left with potentially thousands of—
§ Baroness Barker
I shall take up the Minister's generous offer. With the powers at his disposal, perhaps he will be able to discover the answer to a question that I have not been able to find. I have sought via the Library to obtain an estimate from the Government Actuary's department of how many of the parents in those cases would still be alive. I have been unsuccessful thus far, but, with the might of his department, the noble Lord may be able to find the answer.
§ 4.30 p.m.
§ Lord Hunt of Kings Heath
I have some doubts in that respect. However, I shall see whether we can discover what figures are available. I would be happy to discuss the matter with the noble Baroness. At the end of the day, we can have a most interesting and perhaps somewhat academic argument about the numbers involved, but it does not take us away from some of the practical issues that we would face. As the noble Baroness, Lady Noakes, acknowledged, with many of the adoptions being arranged privately there are often very few records, other than a report about placement, which the adoption agency may or may not hold. Before 1984, we know that the obligations on adoption agencies to keep and record information were not as comprehensive as they are now. Many records exist in part, while others have been lost.
If details of an individual are found on the case file in relation to an adoption that was made many years ago, there would then be the practical difficulty of trying to trace that person to seek his views about the disclosure of information. As is clear from the terms of the amendment, this would be a considerable burden on the agencies. This is where we come to the difficulty, the argument, about priorities. Although the Government are sympathetic to why these proposals are being put forward, we are concerned that we focus not just resources—the noble Baroness, Lady Barker, mentioned resources, and of course resources is always an important matter. Indeed, it is not just resources; it is also the use of skilled staff, time and energy, and the right sort of focus. We have already had a riveting debate about adoption support. That is an area in which Members of the Committee are urging the Government to do everything possible to ensure that the proper adoption support is given after assessment. That is why we are concerned about the full impact of the proposed amendment.
291GC I want to acknowledge the force of the argument being put forward. The Government are listening very carefully to the comments that have been made. Adoption agencies have discretion to disclose information, and the provisions in the Bill do not remove that discretion. The Bill provides a framework within which the agency may exercise its discretion. We obviously need to assess the impact of that on future practice in relation to current arrangements. We will be issuing guidance later this year to adoption agencies to help ensure that practice is more consistent. We will advise agencies to take a more positive approach to the disclosure of information and encourage them to base their practice on the Bill's provisions. We envisage intermediary services, which are available in some parts of the country, as being able to provide sensitive support and counselling to those seeking to make contact with a relative, thereby sharing some of the work that might otherwise fall on adoption agencies.
When it comes to the promotion of best practice, we have also made it clear that we will expect those agencies to adopt the principles of best practice. I accept that there are issues relating to the current patchy provision of services, and the kind of difficulties which noble Lords have mentioned regarding people seeking to find information. We shall be consulting shortly with adoption stakeholders on the operation of the scheme. This will follow with a selection process in relation to the services that can be provided for one leading provider to act as a resource for adoption agencies.
The adoption contact register facilitates contact between adopted persons and their birth relatives where both parties have expressed a wish for such contact. However, the majority of adopted people and their birth relatives do not even know that it exists. There have been only two brief attempts to promote the register since its establishment in 1991. We see that a more pro-active and frequent promotion of the register through adoption agencies and key stakeholders would raise its profile and encourage more people to use it. We are looking at ways to achieve this and we will be consulting adoption stakeholders.
Amendment No. 82A is directed at the linking information maintained and safeguarded by the registrar-general. The linking information forms a bridge between a person's adoption record and his birth record. It is needed so that when an adopted person applies for his birth certificate and he does not know his birth name, the registrar-general will be able to use the linking information to find the birth name. This would then be given to the adopted adult so that he may exercise his right to obtain his birth certificate.
While the amendment does not open up the linking information to public inspection, it would appear to mark a shift in the way the information is safeguarded by current law and would be protected under the Bill.
There appear to be two intentions behind the new clause. The first is to allow applications to be made to the adoption agency in respect of those adopted since 1976. The second is to replace the provisions in the Bill which build on both the Adoption Act 1976 and the 292GC 1996 Appeal Court case. It would allow the adult birth sibling of an adopted adult to have a right to make an application to an adoption agency to obtain the linking information from the registrar-general. This amendment is based on the presumption that the confidential linking information is to be disclosed to the adopted person's birth sibling. It places a duty on the adoption agency to seek the views of the person to whom the information relates. It does not place a limit on this duty.
The implication is that the agency must continue to seek the adopted person's views, regardless of the expenditure of time and resources. In some cases, this will not be possible if the agency cannot trace him. The agency will be required to disclose this information, unless the adopted person refuses his consent, or the agency is able to secure from the High Court an order not to disclose the information. The court could make such an order only if it considered that the circumstances were exceptional. The amendment does not provide for the agency to exercise discretion, nor does it provide for those situations where it cannot trace the adopted person.
This provision would apply to adoptions made since the coming into force of the Adoption Act 1976, but it is not clear as to the date from which it is to apply. For adoptions made after the Bill is enacted, it is clearly unnecessary as under Clause 60, any sibling would be able to apply to the adoption agency for information about his adopted sibling.
For adoptions made prior to the Bill's enactment, birth siblings or other members of the birth family may already seek information about the adopted person. There are four possible routes. The first is to apply to the adoption agency. Regulations provide that an adoption agency may disclose information from its case records as it thinks fit, for the purposes of carrying out its functions as an adoption agency.
The second route for information is through the courts. The courts may also exercise their discretion in disclosing information from their records of adoption cases. Thirdly, birth relatives may seek to contact the adopted adult through the adoption contact register. Finally, a birth relative may apply to the High Court for it to order the registrar-general to disclose the information that is at the focus of this amendment; that is, the linking information.
Turning to Amendment No. 85, first, I commend the ingenuity of the noble Baroness, Lady Noakes, in drafting the amendment, which follows on the debate which took place in the other place. The amendment aims to provide for the registrar-general to pass identifying information about an adopted person to an adopted support agency, so it may disclose if he gives his consent.
The first part of the amendment will provide for the registrar-general to maintain and make available a list of adoption support agencies which provide intermediary support services. Adoption support agencies will be required to register with the National Care Standards Commission in England and with the National Assembly for Wales. I want to make the point here that 293GC the primary function of the registrar-general is the maintenance and control of access to registers for births, marriages and deaths, and in adoption the maintenance of adoption records. The registrar-general has no locus in the registration or maintenance of records for adoption support agencies.
The noble Baroness, Lady Noakes, has made a helpful comment as regards the wording of the amendment in relation to those adopted post 12th November 1975. This part of that amendment also requires the registrar-general, subject to an application being made in a prescribed manner, to provide the adoption support agency with the information necessary to obtain a copy of the adoption certificate from the adopted children register. This would enable the adoption support agency to obtain information such as the names and address of the adopters at the time of the adoption.
The third part of the amendment provides that the registrar-general should not be accountable or liable for any subsequent arrangement for intermediary services made by provision of a list of adoption support agencies.
The final part of the amendment provides that the adoption support agency is not to disclose the identity of the adopted person unless he is given his consent.
I have considered the amendment very carefully. I have already explained in my earlier comments on this group of amendments that intermediary services, which are available in some parts of the country, can provide helpful support and counselling.
In light of the views that the Government have heard from stakeholders on access to information under existing regulations, we have promised to take steps to improve the current arrangements. Guidance will be issued later this year to adoption agencies to help ensure that practice is more consistent. We shall, as I have already implied, advise agencies to take a more positive approach to the disclosure of information and encourage them to base their practice on the provisions that are set out in the Bill.
The adoption contact register facilitates contact between adopted persons and their birth relatives where both parties have expressed a wish for such contact. The majority of adopted people and their birth relatives do not know that it exists, and we are consulting on ways in which we can develop a more pro-active and frequent promotion of the register.
For intermediary services, which I believe again have an important role to play here, although the noble Baroness, Lady Barker, was unduly pessimistic about the potential of those services, we have pledged that as part of the Section 64 funding for the financial year starting in April 2003 we will provide money for one leading provider to run the intermediary services support project which will act as a resource for adoption agencies. We believe that their role in providing access to information and in opening up contact between the adopted person and his birth relatives is an important one. That is why we are consulting on the role of those intermediary services and other services through the publication of our providing effective adoption support.
294GC Adoption support agencies could provide intermediary services under the Bill. In the light of the discussion and Amendments Nos. 82 and 85, we are now prepared to consider whether adoption support agencies could help in the disclosure of information for adoptions made before and after the Bill's enactment. We shall discuss this with adoption stakeholders and also consider the responses to the consultation of the adoption support framework which is to conclude in September.
I have spoken at some length. I think that all noble Lords recognise the importance of this matter, and sympathise with those who sought information and had difficulties in so doing. That is why I have committed the Government to examine current practice under the existing regulations to see what we can do to improve that practice and iron out the variation that is to be found at the moment.
However, I doubt very much whether we would be wise to accept the amendments, which I believe would put considerable pressure on the very agencies that we are relying on to ensure that the Bill's main provisions, when they are enacted and come into force, are able to perform the core role of ensuring that adoption practice in the future is as effective as possible.
§ Baroness Barker
Before the noble Baroness, Lady Noakes, replies, I should like to pick up on a couple of comments that the Minister made. He said that we were talking about the balance of the argument in relation to the other work done by the adoption agencies, but I do not accept that. This is not a matter of balance; it is one of the few absolutes. It is a matter of absolute principle.
§ Lord Hunt of Kings Heath
The noble Baroness says that this is a matter of absolute principle, and I agree. However, does she accept that in saying that this is a matter of absolute principle, the law of unintended consequence is such that, by saying that, one might well undermine the ability of these agencies to be effective in their core purpose?
§ Baroness Barker
I do not accept that. I think that it is entirely possible, if the Government will it, to have different agencies specialising in different areas of the world. Indeed, it is currently the case that the same agencies are not involved in the process. If there were the will—as there is in countries such as Canada, Australia and New Zealand—to open up access to this information, it would be entirely possible to set up agencies specifically for that purpose. We could enable voluntary agencies to raise resources from elsewhere and, if necessary, to operate on a charitable basis, as they do in other aspects of the process.
I therefore do not accept the argument about distraction. I do accept that, as long as this remains a matter for secondary legislation, it will continue its descent on the priority list until it drops off the list entirely. That is what will happen. As we know from the daily work of social services departments, dealing with children who present immediate problems is a priority, but this is never a priority at all. In effect, therefore, we are saying that we are quite happy to see the point go.
295GC The Minister also talked about the discretion of the agencies. As he knows, the issue of agencies using that discretion is an extremely complex one. The practice is patchy, and the history of British adoption agencies opening up their records is lamentable. As I have said before to noble Lords, I have spent a considerable amount of time reading up about what happened to the migrant children. The practices of the agencies at that time—most have changed, but some have not—were an absolute scandal.
I am sure that underlying this issue is a fear by some agencies that, when they open up these historical records, they will discover information, comments and notes from that period that would be totally unacceptable to us now. There is great difficulty in persuading organisations that they should voluntarily open up their files when they believe that, by so doing, they may be opening themselves up to litigation. In relation to this Bill, that has been the history of information provided for by secondary legislation.
I have no doubt of the Minister's personal commitment on this issue. However, none of his comments sounded like an absolute commitment to make this work. He seemed to describe just another set of hurdles. I believe that it is clear, even from the guidance issued in 2000, that if such provision does not appear in the Bill, there is no hope of changing the practice of the agencies at all.
The amendment was moved by the noble Lady, Baroness Noakes, and she will do with it as she will. However, on behalf of these Benches, I signal our intention to return to the issue at Report stage. I look forward very much to what the Minister will tell us following his consultation in September. However, if the matter does not have the force of primary legislation behind it, we shall return to the matter with some force.
§ Lady Saltoun of Abernethy
I wonder whether the Minister could clarify one point. We have been talking about birth parents and siblings seeking information about adopted persons. It seems that the adopted persons' consent will be required before any information can be given out. There is also the opposite situation where the adopted person is seeking information about the birth mother. Will she have an equal ability to refuse consent for disclosure, and will her confidentiality be respected equally?
§ Lord Hunt of Kings Heath
My understanding is that the answer is in the affirmative. I do not want to intervene again before the noble Baroness, Lady Noakes, responds, but I should like to ask the noble Baroness, Lady Barker, whether she accepts from what I have tried to outline that we accept the challenge to improve current practice, and that, through the development of some of the initiatives that I have mentioned, this represents a genuine attempt by the 296GC Government to improve the circumstances. while being quite open and saying that, of all the things that need to be done, this is not of the first rank?
§ Baroness Barker
I do accept that. Nevertheless, although it may be a genuine attempt, in my view it is not a satisfactory one. It still does not address the issue of the agencies. I believe that, above all, an individual caught in this position needs the full power of legislation behind them. The Minister spoke earlier about people having the ability to go to the High Court. Individuals spend vast amounts of their lives trying to obtain a piece of information which they know exists, to which nobody will let them have access.
I accept that it is an attempt. However, on this matter, we have perhaps momentarily come to a point of disagreement. I hope that, before Report, we will be able to reach agreement. However, we one these Benches believe that this is an absolute right. We believe that, in a Bill that sets out in considerable detail the rights of adopted children to pursue it, there ought to be space for those caught in this position—often of their own making—to make their way through a considerable legal thicket, to obtain to information about them and their family.
§ Baroness Noakes
This has been a very interesting debate on a very important topic. I thank the Minister for his carefully considered reply, and the noble Baroness, Lady Barker, and the noble Lord, Lord Clement-Jones, for their significant contributions. The Minister will be left in no doubt as to the strength of feeling of several of us about the importance of this issue.
The Minister spoke about the practical impact and burden that the provision would impose on adoption agencies. If I may, however, I refer him to Amendment No. 85, the point of which is to ensure that the burdens are placed on the adoption support agencies that choose to provide intermediary support services. There is no compulsion or requirement on that; it will be funded either by fees or by charitable donations. There is no leeching of resources out of public service. The only impact on the public service would be that the registrar-general would have to provide information but he already has that information. He has been keeping that information so that he has a complete record. The amendment has been drafted in this way precisely in order to meet the practical points raised in another place. The Minister credited me with ingenuity for devising that amendment, but I claim that not for myself because NORCAP and the Children's Society have worked extremely hard to try to produce a solution which met all the practical concerns.
I welcome the Minister's comments about the actions that will be taken and consulted on, leading to other action; in particular promoting the adoption support agency, giving further guidance and trying to eliminate patch practice across the country. All of that is very welcome and I suspect that all those involved in the adoption societies, those who have considerable experience of this, will say, "And not before time". The real issue is going to be whether those actions by the 297GC department could be believed in and trusted to be anything like as good as some kind of statutory right to information.
My preliminary conclusion, standing here today, is the same as that of the noble Baroness, Lady Barker: it simply could not be. That is partly a product of history and partly because it is unlikely that any kind of guidance would get to a position that would give the wide range of birth relatives who will wish to start a search process the same sorts of facilitation processes to help them in this search.
We will, of course, consider the matter further during the summer, before we come back at Report. However, my feeling at the moment is that we shall want to return to it on Report and to revisit it with considerable vigour. It is an extremely important matter and I would not like the Minister to go away from this Committee feeling anything other than that this is one of the most crucial issues about the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 agreed to.
§ [Amendment No. 82A not moved.]
§ Clauses 61 to 76 agreed to.
§ Schedule 1 [Registration of Adoptions]:
§ [Amendment 82B had been withdrawn from the Marshalled List.]
§ Earl Howe
moved Amendment No. 83:Page 87, 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: Amendment No. 83 brings us back immediately to an issue relating to retrospection. A week or two ago, I had a letter from an English couple who some years ago adopted two Chinese daughters as babies. Because China is a designated country in relation to overseas adoptions, the couple have not had to readopt their daughters in the UK in order for their adoption to be recognised here. However, they cannot register the adoptions in the UK, which means that they cannot obtain a British adoption certificate or birth certificate, even though the children have British citizenship.
That is a very real issue for those two children. We can all think of instances throughout our own lives when we have needed to produce our birth certificates, but those who are adopted in this country have to produce proof of their adoption. The couple of whom I am speaking have already had to provide the birth certificate of their elder daughter when they put down her name for their local primary school. The point this couple have made to me most emphatically—and I am entirely on their side about this—is that it is not in their children's best interests for them throughout their lives to have only a Chinese document showing them as abandoned or with parents unknown. I have copies of the documents here and that is what they say. It surely has to be right that those children should be able to prove easily that their 298GC adoption is legally recognised in this country. How can they do that if all they have are their Chinese adoption certificates?
The Adoption (Intercountry Aspects) Act 1999 will allow for overseas adoptions to be entered in the register. That fact proves to me that the Government recognise the need for this, but what about the many hundreds of children adopted from overseas before the 1999 Act came into force? They cannot be entered in the register; they are effectively in no-man's land. It would be possible for the couple I have been speaking about to readopt their children through the English courts. The problem here is that not all courts are willing to consider such applications. In any case, what an appalling waste of time for social services and the courts, and what a way to treat the children, who would be put under unnecessary pressure meeting social workers and attending court sessions.
The answer, surely, is to allow the registration of overseas adoptions to take place retrospectively. That is the affect of my amendment, which adds a further category to the definition of registrable foreign adoption to include anadoption, whenever granted, which the High Court in the exercise of its inherent jurisdiction orders to be registered in the interests of the adopted person".I am not in general a believer of retrospective legislation. The last group of amendments was a signal exception to that general rule. However, I also believe that this particular retrospective measure is both necessary and humane because it is very much in the interests of children. I beg to move.
§ Lord Hunt of Kings Heath
The noble Earl has raised a very interesting point, and I hope that I shall be able to satisfy him that the position is covered, because I have some sympathy with the points he has raised. Amendment No. 83 would widen the meaning of registrable foreign adoptions. It would extend the scope of registrable foreign adoptions to include those adoptions where the High Court so ordered, irrespective of when or where the adoption order was granted, if it is in the interests of the adopted person.
The reason the Bill limits the registration of foreign adoptions to convention adoptions and overseas adoptions is that we recognise these adoptions in the UK and are satisfied that the procedures in the countries where they are made safeguard the needs of children, both parents and the adopters. In order to ratify the 1993 Hague convention, the country must have in place procedures which meet certain requirements. In order for a country to be included in an order under Clause 85, it will have to meet or demonstrate that it will meet in a reasonable time requirements to be set out in regulations. The countries which are contained in the order will be kept under constant review. This is a very big improvement on simply having a designated list which exists for all time, because countries can then be removed if they are not likely to meet the requirement, and new countries may be added if they prose that they can meet the requirements.
We have understandable concerns about adoptions which are made in other countries which fail to comply with recognised safeguards. Clearly, children and their 299GC families should be protected from the exploitation that exist in some countries where children are given up for adoption as part of a commercial transaction. That is the principle whereby we only wish to register adoptions from countries where the appropriate safeguards are in place.
As we debated at Second Reading, the UK has not yet ratified the 1993 Hague convention, so there are no Hague convention adoptions to be registered. However, it is our intention to ratify the Hague convention in early 2003, and the Adoption (Intercountry Aspects) Act 1999 contains similar provisions to the Bill to enable convention and overseas adoptions to be registered where the necessary information is available.
The term "overseas adoption" is defined in Clause 85 as,an adoption of a description specified in an order made by the Secretary of State".This order will specify that adoptions recognised under the designated list set out in the Adoption Order (Designation of Overseas Adoptions) 1973 will be included in the definition of "overseas adoption". This list includes Commonwealth countries and UK dependent territories as well as other countries and territories. The noble Earl will probably know that China was added to the list in 1993. That means that provided the person applying to have the old designated list adoption registered can provide the information and documentation required by the registrar-general, he will register the adoption. The intention is to set out the requirements and information which must be provided in the regulations.
I have to make it 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. This will vary from country to country, as some countries provide very full information to adopters while others will provide only minimal information. However, where that information is available, the registrar-general will be able to register what are best described as "old overseas adoptions".
Therefore, as regards the particular example raised by the noble Earl, under current legislation the adoption cannot be registered on the adopted children register. Under the 1990 Act they will be able to do so and they will also be able to do so under the Bill. The term "overseas adoption" includes adoption made under the old designated list. I hope that that reassures the noble Earl, but if he would care to pass me the documentation I shall check out the details of the individual case.
§ Baroness Thomas of Walliswood
Before the noble Earl replies, I rise because our amendment in this group is joined with his and has an identical purpose. I listened as carefully as I could to what the Minister was saying, and I am still not quite certain whether what he has outlined will have a retrospective impact because that is the point here. It is not what will happen after 1999; it is 300GC what will happen to about 800 children in this country who are adopted and who need to obtain some proper papers.
§ Lord Hunt of Kings Heath
Provided that they are covered by the old designated list, they will be able to apply, and the current legislation in the 1990 Act will apply to them.
§ Lord Campbell of Alloway
I have listened to the intricacies of this problem—I know a little about them, but not as much as I have been told this afternoon—and it seems to me that the approach of my noble friend Lord Howe must be right. Provided that you qualify the exercise of the inherent jurisdiction—for example, not to be exercised if there is a sale transaction for the children, which is the only one that has turned up but there are others—the approach of my noble friend, which I commend to the Minister, is right. It is the one way to get through this maze of technicalities.
§ Lord Hunt of Kings Heath
I hesitate to argue with the noble Lord on this matter but the approach here is surely that we have the Hague convention, which we hope to ratify very shortly. We also have a designated list of countries whose adoption procedures we believe are, in principle, acceptable. We are giving ourselves greater discretion in relation to a designated list in the future, to allow us to review and to add countries and take them off. It is on that basis that we can then recognise overseas adoptions.
In relation to the specific case raised by the noble Earl, from my reading of it—although I will check the details—they should be covered under what we are proposing.
§ Earl Howe
I am most grateful to the Minister and I accept his answer in the spirit in which it is given. The case I cited relates to two children whose adoption is recognised in this country—there is no question of their adoption not being legal or anything of that nature. However, the parents cannot register the adoption, which is the key issue for the purposes of this amendment. I am encouraged by what the Minister has told me. Effectively, if I have understood him aright, the regulations under the 1999 Act will allow for an element of retrospection, under what he terms the "old adoptions".
§ [Amendment No. 84 not moved.]
§ [Amendment Nos. 84A to 84C had been withdrawn from the Marshalled List.]
§ Schedule 1, agreed to.
§ Clause 77 agreed to.
§ Clause 78 [Connections between the register and birth records]:301GC
§ [Amendment No. 85 not moved.]
§ Clause 78 agreed to.
§ 5 p.m.
§ Schedule 2 [Disclosure of Birth Records by Registrar General]:
§ Baroness Noakes
moved Amendment No. 86:Page 90, line 45, leave out from "must" to end of line 49 and insert "inform the applicant that counselling services are available to the applicant as laid out in paragraph 2(1), and strongly recommend that the applicant use those services before gibing any information to an applicantThe noble Baroness said: In moving Amendment No. 86 I shall also speak to Amendments Nos. 87 and 88. Schedule 2, to which this amendment relates, applies only to adoptions made before this Bill becomes law. Paragraph 4(1) of Schedule 2 provides that the registrar-general must not give information to an adopted person who applies for information to allow him to find out about his birth history unless the applicant has attended an interview with a counsellor. We are not opposed to counselling and indeed we believe that the best advice that could be given to an applicant is that he should receive counselling before being given information. However, we find it difficult to agree with compulsory counselling. By definition, it is adults who are applying for information because until they reach the age of 18 they cannot do so. They are not children and it is very likely that they will be considerably older than 18.
We believe, as our amendment proposes, that the registrar-general should strongly recommend that the applicant use counselling services before receiving the information, but it is not right that a person should be compelled to sit through a counselling interview. That would be taking the nanny state to unnecessary lengths.
Clause 62 of the Bill also deals with counselling and adoption agencies, but that falls short of compulsion in the sense of requiring an individual to submit to counselling, as opposed to having counselling services made available. Counselling is not compulsory under existing legislation. Can the Minister explain why the Schedule 2 approach is different? If the paragraph remains and individuals do not feel they need any counselling or do not want to use the services of the bodies listed in paragraph 2, they will have a problem. Either they will be denied information that should be theirs by right or they will have to submit to an unwanted procedure, which could well waste scarce resources which would be better deployed elsewhere.
Amendments Nos. 87 and 88 are similar but apply to overseas applicants. I beg to move.
§ Lord Hunt of Kings Heath
Amendment No. 86 removes the requirement for an applicant adopted before 12th November 1975 to have received counselling before the registrar-general provides the information. It replaces the current provision with a requirement for the registrar-general merely to inform the applicant that counselling services are available and strongly recommending that he use them. The noble Baroness, Lady Noakes, asked an understandable question as to why this should be. The simple answer is that her amendment seeks to overturn a scheme that is based on a clear commitment made by 302GC Parliament in 1975. Individuals who do not know their birth details and were adopted before 12th November 1975 are required to see a counsellor before they are given access to their birth records. Individuals adopted on or after 12th November 1975 are informed of the counselling services that are available to them but counselling is not a precondition to disclosure of the birth record information.
The noble Baroness is right about the importance of good counselling services. The reason for the distinction is that until 12th November 1975 adopted people did not have a right to access their birth records. When Parliament provided this new right, it also gave it to individuals adopted prior to 12th November 1975. To balance the concerns of birth parents who had previously had anonymity, Parliament decided that counselling would be compulsory for those given the retrospective right. An adoption that took place before 1975 could have done so in the expectation that there would be little prospect of the birth parents' identity being revealed to the adopted person.
As Members of the Committee have said in speaking to previous amendments, many adoptions before this time happened in an atmosphere of secrecy. At the time Parliament considered the issue carefully before deciding to allow the adopted adult access to his birth record. As I said, in the light of the potentially sensitive situations that might arise, Parliament decided that the adopted adult should have counselling before being given access to sensitive information.
I am happy to discuss this issue further, but I hope that I have given a clear explanation. One has to respect the reasons why legislators took this decision 25 years ago.
§ Baroness Noakes
I thank the Minister for that explanation of the provision. Under Schedule 2 the provision now applies to all adoptions before the appointed day for the Bill; it is not restricted to adoptions prior to 1975. Therefore, the Bill has extended compulsory counselling.
§ Lord Hunt of Kings Heath
That is certainly not the position and certainly not the intention. My understanding is that it simply maintains the position for those adoptions prior to the 1975 date.
§ Baroness Noakes
I thank the Minister for that. On that basis I clearly need to think further, which I shall do. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 87 and 88 not moved.]
§ Schedule 2 agreed to.
§ Clause 79 [Adoption Contact Register]:
§ Baroness Barker
moved Amendment No. 89:Page 44, line 13, leave out subsection (3) and insert—(3) The Registrar General may only make an entry in Part 1 of the register for an adopted person who has attained the age of 18 years.303GC The noble Baroness said: We now move on to a series of amendments concerning the adoption contact register—clearly one of the key parts of the Bill.
Amendment No. 89 may seem on the face of it rather odd given the parts of the clause which it seeks to delete. However, the purpose of the amendment is to bring about the extension of the adoption contact register to two groups of people who would potentially be excluded as the clause is presently drafted.
The first group concerns people in this country who are foundlings. I bring to mind the speech made by the noble Earl, Lord Howe, about that group of people earlier. I assume that there can be no register of their birth. The principal reason behind the amendment is to open up the adoption contact register to people who have been adopted from overseas.
People seeking contact with family members lost through intercountry adoption have an extremely difficult time, even worse than their domestic peers whom we discussed in relation to earlier amendments. Therefore, the effect of this amendment—and indeed some later amendments—is to open up the adoption contact register in such a way that it can be used by people seeking information on someone whose birth was not registered in this country. I refer to the requirement that the registrar-general should be satisfied that a person has such information as is necessary to enable him to obtain a copy of the record of his birth. In the light of the recent discussion we had on the amendment tabled by the noble Earl, Lord Howe, there may be people for whom that is simply an impossibility. I beg to move.
§ 5.15 p.m.
§ The Principal Deputy Chairman of Committees (Lord Brabazon of Tara)
If this amendment is agreed to, I cannot call Amendments No. 90 and 91.
§ Earl Howe
I have a confession to make. When I read this amendment tabled by the noble Baroness I had not realised that this was its purport and intent. Perhaps I can save the time of the Committee by speaking to the issue which the noble Baroness has raised, which I raise in the next group of amendments and which, in the circumstances, I shall not move.
I endorse everything that the noble Baroness has said. As the Bill stands currently, there is no indication as to whether the Government intend to extend the use of the register to those who are at present unable to use it—principally, as she has mentioned, people who were at one time adopted from overseas and the birth parents and siblings of such people.
If we think that it is difficult for British-born adoptees to trace and contact their birth families, and vice versa, we ought to reflect how much more difficult it is for those who were once adopted from a third world country to do the same thing.
Recently, I learned of a case of someone who came to the UK from a fairly poor third world country as a baby, and who some years later, wanted to try to find her birth family. There was another case where the 304GC mother of a baby, taken from a third world country and adopted into the UK, wanted to trace her child many years later. There is no framework in the UK which enables a birth relative from overseas to register an interest in being contacted by a child placed in an intercountry adoption and adopted in the UK, nor, in reverse, for that adopted child to register an interest in being contacted by his or her birth relatives. The desire for such contact is natural; it is human. As intercountry adoption increases over the years ahead, as it surely will, more and more individuals are bound to want to avail of such arrangements. If the United Kingdom wishes to regard itself as a paid-up member of the international community in the field of adoption, the least it should do is to ensure that there is a register held by the central authorities, with modest fees, to facilitate such contacts.
§ Lord Hunt of Kings Heath
Perhaps I may respond to the two specific issues raised by the noble Baroness, Lady Barker, and then seek guidance from her. If the noble Baroness were to pursue her amendments, my view is that that would actually take away some of the critical safeguards that there need to be to enable the registrar-general to be satisfied that a birth relationship exists.
As far as concerns the question about whether the adoption contact register should be extended to those affected by intercountry adoption, our view is that the register could be used as a contact facility for inter-country adoptions. As has already been discussed, in future the registrar-general will, with sufficient information, be able to register on the adopted children register the adoption of a person adopted as a result of an intercountry adoption. In such cases, the adopted person or his birth relative could subsequently register on the adoption contact register. My understanding is that the registrar-general intends to provide this service for future intercountry adoptions if sufficient information is made available to him by applications for registration on the adoption contact register.
I turn to the question of abandoned children. I should tell the Committee that the Government have considered this matter most carefully. From a practical point of view there are a number of very difficult issues that would need to be overcome; for example, there would need to be proof of a blood relationship between the adopted person and the birth family before the register could be used to pass on information.
In such cases, evidence would be required from the adopted person and from possible relatives before an entry could be made in the relevant part of the register. The adopted person and the possible birth relatives would have to be willing to undergo DNA testing to facilitate this process. Another complication is that under Section 27 of the Offences Against the Person Act 1861, it is a criminal offence to abandon a child under the age of two. If the DNA test confirms the person is the birth parent of the person abandoned as a child, that person would be admitting to having 305GC committed a criminal offence and the registrar-general would be obliged to inform the police. One can see that there is a real difficulty in that connection.
The problem that I have with the amendments is that without the essential details needed of the relationship between the adopted adult and the applicant, the registrar-general cannot be satisfied that a birth relationship exists; and, therefore, there would be no evidence. If this safeguard were removed, any person claiming to be a relative could expect to be registered on part 2 of the contact register, irrespective of whether he were in fact related to an adopted person. That would potentially allow the abuse of the facility intended to assist genuine contact between members of the same birth family. In some cases, this could lead to emotional entrapment of the adopted person if he were led to believe that the other person were a relative with whom he wished to have contact.
In circumstances where an applicant is not able to satisfy the statute requirements for an entry to be made on the contact register, the registrar-general has referred individuals to NORCAP, as it operates its own contact register. They are then advised that the threshold for proof of a relationship between the two parties on NORCAP's register is lower. However, I understand that the noble Baroness, Lady Barker, has moved this amendment in order to raise two questions, which I hope I have responded to in an informative way.
§ Baroness Barker
The Minister has indeed answered the questions that we were trying to probe. On the issue of the abandonment of children, is there not a statute of limitations in that respect? For example, if somebody had abandoned a child many years before and subsequently came forward to own up, would he or she still be laying themselves open to a criminal offence? I simply do not know the answer.
§ Lord Hunt of Kings Heath
I will certainly want to check that out. However, that is but one of the practical problems that one would face if one wished to pursue the route that the noble Baroness suggests.
§ Baroness Barker
I thank the Minister for that. I was seeking, perhaps in a defective way, to pursue the issue of opening up the register, particularly for those for whom access has been extremely difficult. I welcome the words of the noble Earl, Lord Howe, in response to that point.
There is no doubt but that the maintenance of an adoption contact register that tracks intercountry adoption will become increasingly necessary. One of the reasons for wishing to do that and to ensure that the adoption contact register fulfils that objective is that, if it does not do so in the Internet age, people will start to do it for themselves, and they will do so in a wholly unregulated way. I am grateful for the Minister's assurances. I shall go away and read his words. Meanwhile. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 90 to 92 not moved.]
§ Baroness Noakes
moved Amendment No. 93:Page 44, line 29, leave out "may provide forThe noble Baroness said: In moving Amendment No. 93, I shall also speak to Amendments Nos. 94 and 95. I shall do so briefly.
The effect of these three amendments on Clause 79(6) is to require the regulations under Clause 79 to provide for the disclosure of information contained in one part of the register to persons for whom there is an entry in the other part. This is a probing amendment. We have tabled it because it is far from clear why regulations should do other than require the linking of Part 1 and Part 2 information by disclosure. That is, after all, what the register is there to do.
Can the Minister give any reason for the current construction of Clause 79(6)? Can he say why regulations should not provide for the disclosure of information between parts of the register? I beg to move.
§ Baroness Andrews
This is my first "may/shall" debate. I am sorry that the noble Lord, Lord McIntosh, is not in his place to add to the tally of his great performance in this regard.
I am afraid that things have taken a turn for the worse already. I had intended simply to reassure the noble Baroness, Lady Noakes, that the Government have every intention of bringing forward amendments in case there was any doubt on the point. I should like to dispel any doubts there may be about that.
As for linking, given the construction of the clause, it is extremely important to be clear that where there are two positive corresponding entries in the contact register, one for the adopted adult in Part 1 and one for the adult birth relative in Part 2, that information will be disclosed. If the entries match and both parties wish for contact, this fact, together with birth relatives' details, will be passed on to the adopted adult.
I believe that that, plus the intention to bring the regulations forward, should answer the noble Baroness's question. If they do not, I shall be happy to write to her on those points. I hope that, pending a further and more detailed explanation, she will feel that, on reflection, she can withdraw the amendment.
§ Baroness Noakes
If thank the Minister for that reply. As I said, this is a probing amendment, to try to find out why the provision was constructed in this way. I felt that if the regulations did anything at all, they would provide for the matching of information between Part 1 and Part 2. The provision implied that they might not do so. I heard what the Minister said about the intention to issue regulations to that effect, and that she will look at it again and write to me if necessary. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 94 and 95 not moved.]
§ Clause 79 agreed to.
§ Clauses 80 and 81 agreed to.307GC
§ Clause 82 [Restriction on bringing children in]:
§ 5.30 p.m.
§ Lord Astor of Hever
moved Amendment No. 96:Page 45, line 31, leave out "natural" and insert "geneticThe noble Lord said: In speaking to Amendment No. 96, I shall also speak to Amendments Nos. 97 to 100, 102 and 118.
With regard to Amendments Nos. 96 and 97, it is important that we get the terminology correct. The phrase "natural parent" is an odd one because it implies that any other sort of parent is unnatural—it is saying that unconditional love is not natural. Surely it is not unnatural to care for and cherish another person's child—something which has happened throughout history very successfully.
In the Special Standing Committee in the other place, the Minister had some sympathy with our amendment, but preferred the term "birth parents". We accept that the use of the word "genetic" is not perfect, but we should be grateful to hear the Government's thinking on this issue.
Amendment No. 98 is a straightforward amendment to probe the regulations. We discussed the thorny problem of "shall" and "may" last week, and I have no hesitation in unleashing these words on the Grand Committee again today. The Government's regulations, entitled Implementing the Adoption (Intercountry Aspects) Act 1999, apply to this clause, and we seek clarification on how they do so.
Amendments Nos. 99 and 100 would ensure the use of qualified private social workers, independent of the local authority but approved and registered with them, who would be able to carry out home studies. We wish to ensure that this is on the face of the Bill.
As a result of one appalling case, that of the Kilshaws, local authorities have on the whole stopped using these private social workers. There is a shortage of resources in many social services departments and a serious problem with recruitment. The important role that these private social workers have played should be recognised and encouraged in the future.
Amendment No. 102 is another "may/shall" provision. Again, we feel that this should be compulsory.
Finally, Amendment No. 118 is a tidying up amendment relating to the Adoption (Intercountry Aspects) Act 1999, Section 5. I beg to move.
§ Earl Howe
If I may, I should like to add to what my noble friend Lord Astor has said in relation to Amendment No. 118, which covers one of the most important omissions from this Bill in the context of intercountry adoption. I am referring to the absence of a service dedicated to facilitating the intercountry adoption process at the crucial linking-up stage.
This is not the first time that I have raised this issue. I make no apology for that because the more I hear about the experiences of those who have been through the mill of trying to adopt a child from overseas, the 308GC more horrified I am that we seem incapable in this country of providing such people with a service that will truly help them.
If one decides to adopt from abroad, one first needs to go through a home study. It may say sound strange to say that that is the easy part. However, it is not easy at all for many people because, as we have said before in these debates, home studies for overseas adopters tend to be low priority. One often has to wait a very long time before being assessed. Nevertheless, let us suppose that one has obtained approval under the home study procedure. What does one do next? Well, one chooses the preferred country, and one somehow makes contact with the adoption authorities overseas. You may have a language barrier to overcome, and you have to get the home study package to the relevant place. At one time it used to take about six weeks for the home study bundle to be sent from the Department of Health to the overseas country. It is now taking around five months. You are then faced with negotiating all the elements of the overseas adoption yourself; being linked up with a child who is waiting; making sure that you fulfil all the legal requirements of the adoption laws in the overseas country; meeting all the UK immigration procedures; ensuring that all post-adoption procedures are correctly followed and so on.
The problem is that many of the best organized countries overseas—the countries that are most scrupulously protective of their children—are reluctant to receive applications from people living in the UK. Why is that? It is because we in the UK do not have specialist, dedicated linking agencies, and as a result we are perceived by a number of countries as offering insufficient safeguards for the child, and insufficient safeguards for British families.
I cannot stress strongly enough that this linking stage of the process is absolutely crucial. The Bill as it stands precludes the establishment of specialist agencies in England and Wales unless they are also approved to provide domestic adoption. Why on earth should there be this restriction? Of course, any linking agency must be subject to proper accreditation and inspection to ensure that it is providing a service of the correct quality. But if you want to set up an agency devoted exclusively to providing a comprehensive linking service for intercountry adopters, you can forget it because you will also have to bear the legal, financial, and regulatory burdens applicable to a domestic adoption agency as well. That is quite simply prohibitive.
India is a prime example of the countries where these difficulties emerge. Indian adoption agencies will typically say that in the absence of a partner agency in the UK with whom they can co-operate, they cannot guarantee that the welfare of the child will be monitored, and proper post-adoption support provided over the time period required by Indian law. If by some means the would-be adoptive parents overcome this hurdle, their time and attention has to be devoted to navigating through the administrative aspects of the adoption. They will not be free to 309GC concentrate on the far more important task of getting to know their child and ensuring that his or her needs are met.
The Central Adoption Resource Agency in India, CARA, has been saying for years that the functions that the DoH performs as the central authority are, as far as it is concerned, quite distinct from the functions it expects of foreign accredited agencies. Detailed case linking is not in its opinion a function that a government department can or should perform.
Very similar concerns have been raised by China, Colombia, Thailand and the Philippines, to name but a few. When I raised this matter in one of our earlier debates, the Minister as good as said that he and his department knew nothing about any specific problems and it was virtually the first they had heard of them. I am aware that the Department of Health does know about these problems. The Minister's officials have been told in terms by their opposite numbers overseas that these difficulties exist. I do not understand why the Department insists on burying its head in the sand in this way.
This is a very important matter. I have expressed the view before that would-be adoptive parents who are looking to adopt a child from overseas are treated almost as though what they are doing is somehow reprehensible, so numerous are the practical and administrative hurdles placed in their path. It is time that we came out and said that intercountry adoption is not reprehensible. It is every bit as valid and valuable as any other kind of adoption. My amendment would open the way to making life for such people infinitely easier.
§ Baroness Barker
I rise briefly to support the arguments put forward by the noble Earl, Lord Howe. In some respects we repeat some of the arguments which we had in relation to Clause 12. It is important that we do not forget in this discussion the limitations of independent review. There is no independent review of the performance of the Department of Health in this respect.
The noble Earl spoke of the number of different countries that are increasingly reluctant—and in some cases refuse—to deal with the Department of Health. I find myself in some difficulty here as I have evidence not only from the organisations involved in intercountry adoptions but also wholly independently from individuals documenting their own experience. Much of the discontent is of an operational nature.
It is extremely difficult to criticise the performance of the department in a forum such as this. However, I draw to the Minister's attention one particular fact that I was not aware of. A person wrote to me outlining experiences of trying to adopt from China. That person mentioned the endless phone calls, letters and processing of papers which went on. In the midst of that the person revealed one thing which I believe is significant; namely, that UK international adoption is carried out through the Department of Health although it is not allowed to communicate directly with the Chinese Government department which deals with the CCAA. Our communication on those matters 310GC goes via the Foreign Office, the embassy and finally to the Chinese authorities. That means that any contact of any kind takes a minimum of three months. In fact, in practice it takes a great deal longer than that. It seems to me that that is staggeringly inefficient.
These issues came into sharp focus when China changed its rules and set new limits for the numbers of children it was willing to have adopted. The American adoption agencies got their skates on and got on with the cases that they had in line. We did not, with the result that we have an enormous backlog of applicants waiting for adoptions from that country to be processed.
I echo the point made by the noble Earl, Lord Howe, about why it is necessary for the Department of Health to fulfil this function at all. I question whether a government department, staffed as it is by civil servants who inevitably change in the course of their work, is the best way to go about this. Would it not be preferable to have an independent body which could—as in many other fields of adoption—not only set itself up as a specialist agency, but could also over time develop continuity, skills and experience among its staff?
I believe strongly that there is a role for the Department of Health in scrutinising intercountry adoptions. Perhaps if the Kilshaw ca se did nothing else it showed the very real need for there to be a very powerful scrutinising force within this country. I refer to those people who wish to adopt from overseas. I do not question why people wish to do that; I simply recognise that they will pursue that course if that is their wish. At the moment, in practice, anybody who finds themselves in that position has no alternative but to use the offices of a private American adoption agency. Those agencies are, by and large—-or compared to this country—unregulated. It is an absolute lottery whether the agency an individual selects is good or bad. It seems to rue that throughout this Bill there is set out a great deal for the Department of Health to do. I am not sure that as a priority it should be the body which is arranging intercountry adoptions, although I take the point that there is a role for it in scrutinising them. With that, I support the words of the noble Earl, Lord Howe.
§ 5.45 p.m.
§ Baroness Andrews
I shall start with Amendments No. 96 and 97 in relation to the issue raised by the noble Lord, Lord Astor. It also arose at Committee stage in another place. The amendments as proposed substitute the term "genetic" in place of the word "natural" in Clause 82(2)(a). We took account of the debate in another place, which was clearly raising some very sensitive issues about language that was potentially seen as offensive to adoptive parents and relatives, by implying that the relationship was unnatural—a word the noble Lord has used—and that there were complications and an absence of love.
We looked closely at the possibility of using the term "genetic" in this context. The problem is that when tested, it is in fact imprecise itself. Part of the problem 311GC is the possibility that, as with some scientific terms, it can be affected by the boundaries of knowledge as it moves on. Originally, the term "scientist" itself was in fact "natural philosopher". As scientific knowledge develops, terms become refined and the boundaries of what is termed "genetic" may also change as we become more familiar with the scope of the genetic code and its implications.
For that reason, the term "natural parent" is preferable throughout the Bill, not least because it has an everyday, common meaning that can be understood. As regards the relationships we are dealing with and the vocabulary we have to use in order to give people confidence about the Bill and the regulations, it is the preferable term. We took the point up with legal advisers and they did not come forward with anything more suitable.
Amendments Nos. 98 and 102 would place a statutory duty on the Secretary of State to make regulations requiring persons intending to bring—or cause another person to bring—a child into the United Kingdom under this section to apply to an adoption agency and to give the agency information it requires to carry out an assessment. Similarly, Amendment No. 102 would place a statutory duty on the Secretary of State to make regulations requiring conditions to be met in respect of a child brought into the country under Section 82.
We have already put in place the Adoption of Children from Overseas Regulations 2001 under the Adoption (Intercountry Aspects) Act 1999. Regulation 3 makes it a requirement that prospective adopters apply to a local authority or to a voluntary adoption agency to be assessed and approved through exactly the same procedures as those for domestic adoptions and therefore to get a certificate of eligibility. The regulations made under Clause 82 would replace with amendments the regulations made under the 1999 Act.
It is our clear intention to make regulations under Clause 82(4) and (5). It is also our intention to consult—and it is important to stress this—widely on the requirements and conditions to be prescribed under these subsections. It is likely that they will be similar to the regulations made under the current Section 56A of the 1976 Act. Perhaps I may illustrate that. For example, the prospective adopters apply to and are assessed by an adoption agency in the UK. The prospective adopters provide as much information as requested. They agree to the carrying out of police and medical checks. The case is referred to the adoption panel. The home study assessment and such other information as is required by the overseas authority is sent to the central authority in the various countries so that it can be checked to ensure that all proper procedures are followed and all the relevant information is collected. Therefore, within 14 days of arrival in the UK with a child they intend to adopt, notice of intention to adopt is given to the local authority in whose area the prospective adopters reside. I hope with that background and that 312GC framework, and my assurances about consultation, the noble Lord will feel able to withdraw the amendment.
I turn to Amendment No. 99. This amendment would enable social workers acting independently of any adoption agency to assess potential intercountry adopters. May I say at the outset that this is not the product of the Kilshaw case; this preceded the Kilshaw case. Section 13 of the Adoption (Intercountry Aspects) Act 1999, which amended the 1976 Act, clarified that private social workers could not undertake home study assessments. I will explain that in a moment. It was brought into force in January 2000, before the Kilshaw case.
Linked to this amendment is Amendment No. 100, which would require potential intercountry adopters to provide social workers acting independently of an adoption agency with information for the purposes of an assessment. I take the point made by the noble Lord that we are looking at a lot of pressure on agencies, and this is potentially one way of expanding the workforce. The problem is that it may not do that and it may introduce a few more hazards, and I will explain that in a moment.
When we amended Section 73 of the Adoption Act 1976, we did so through Section 13 of the 1999 Act, which puts beyond doubt that in intercountry cases a home study assessment report for the purposes of adoption must be prepared by or on behalf of an adoption agency and not by social workers acting independently. Clause 82(4) provides that regulations may require a person intending to bring a child into the UK for adoption purposes, or a child he has adopted within the past six months overseas, to apply to an adoption agency for an assessment.
Prior to the implementation of Section 13 of the 1999 Act we believed it was not appropriate for social workers acting independently of an adoption agency to prepare home study assessments. Considerable concern has been expressed, for example, by the Association of Directors of Social Services. It has been concerned about the practice of employing social workers on a private scale outside the framework of the adoption agencies. Their members feel very strongly that the only people who should be permitted to provide home study reports are people who are directly employed or commissioned by adoption agencies.
However, there was conflicting case law on the issue and the Government implemented Section 13 in January 2000 specifically in order to clarify the position. This week the ADSS has written to the Department of Health again in support of the continued need to prohibit privately commissioned home study reports for the purpose of intercountry adoption. I would be very happy to pass a copy of that letter to the noble Lord.
We fear—and clearly these fears are shared by the ADSS—that allowing the assessment of adopters by independent social workers would risk compromising the impartiality of the assessment process. There is also a question of some vulnerability of the social 313GC workers themselves in these situations to the pressure which may be put on them by unsuitable adopters in order to attract other applicants and to increase the number of applicants wishing to use their services. That could mean that applicants are approved when they might not pass the assessment which is carried out formally. The other problem is that there is no process for inspecting the private work of independent social workers, so one is never absolutely sure about quality and quality assessment.
Given the problem of capacity which has been identified, we also ought to reflect on the fact that many agencies choose to contract with an independent social worker to undertake assessments. They can commission them to carry out a home study under supervision as long as that social worker meets the usual regulatory requirements on qualifications, and/or experience. We have a better world now; it may not be the best, but we have additional capacity and we have safety and security for the child. It means that all the necessary information can be obtained: the checks and balances are built in, and the social worker will have access to full medical and police checks. Therefore, social workers will basically be supervised, and there is a far greater guarantee of their general suitability. The agency adoption panel also provides an important, partial input, so other checks and balances come in there.
We appreciate the concern that has been brought forward by these agencies and the pressure that they are under. However, the fundamental line is that we could not allow that to happen, or even take that risk if there were any possibility of unnecessary risk to the child.
I turn to Amendment No. 118, which is more complex. It raises the issues that have been identified by the noble Lord. Perhaps I may begin by saying that I am sorry to hear of the perception of a reluctance—it is not a hostility—to work productively with countries overseas in terms of facilitating adoption. As an opening point and in the light of what has been said, I should like the department to write to Members of the Committee in relation to their response, especially on the question of delays and the perceptions that are held.
In terms of the six-months' wait, we acknowledge that there has been an increase in the length of time that it has been taking to process papers. I am sure that this has been sorted out, but it would be sensible for me to write to the noble Baroness to point out some of the steps that may have been taken to improve the situation. Apparently, the situation came about as a result of a large number of applications, which seem to have bunched up during the early part of the year. That backlog has caused some problems.
§ Baroness Barker
I thank the noble Baroness for that response. When she writes to me, I wonder if she could shed some light on the practice within the department for dealing with papers. I understand from a number of different correspondents that one of the biggest frustrations for people is that they send in their papers and a fault or question mark will appear, which means 314GC that the papers are sent back to them. The latter are then sent back to the department, at which point another fault comes to light and the papers are returned. Instead of going through the application in one go, the correspondence goes back and forth continually. We can understand that that must be deeply frustrating, because it takes a great deal of time.
Therefore, while dealing with those other points, I wonder whether the noble Baroness could shed some light on the practices of the department, and on how it deals with applications.
§ 6 p.m.
§ Baroness Andrews
I can certainly give the noble Baroness that assurance. It is essential to be thorough. When we deal with adoptions that have been generated overseas, we are not going to be very au fait with the detail, or the information in itself may not be as reliable or as accessible as we would wish for a range of reasons. However, there is a balance to be struck between being thorough and being efficient. I have the highest regard for officials in the Department of Health. I shall certainly ask for a sensible letter to be written to the noble Baroness in that respect.
The noble Earl, Lord Howe, raised a point about CARA. I am also sure that we have never received any representations from CARA, or from any of the other countries to which reference has been made. We have been told by some of the Hague Convention countries that they will only deal with the United Kingdom after ratification—which, of course, will take place next year. Ratification, of course, is going to be next year.
Again, I would feel more comfortable if I could write to the noble Lord, Lord Astor, on the point. A lot has been raised in this debate about these processes and exchanges. It would be good to have those on the record. It would also be good, if it is acceptable to him, to be able to reply in writing to some of the points that he raised.
We are dealing with different perceptions. At this stage in policy development, however, when so much is in transition, and especially when dealing on an international scale, it can be quite difficult to fix the position. There are reasons why these matters sometimes slip.
As I understand it, the purpose of Amendment No. 118 is to enable the establishment of specialist or full-service intercountry adoption agencies. It is understood, or believed by some of the stakeholder groups, that Section 10 of the Adoption (Intercountry Aspects) Act 1999 precludes the establishment of such agencies unless they are also approved for domestic adoption. Two things need to be said about this. First, the amendment as drafted is unnecessary for reasons that I shall explain. Secondly, it is based on a misunderstanding which I hope to make clear to the noble Lord, Lord Astor.
Section 10 of the 1999 Act amends Section 3 of the Adoption Act 1976 which provides that adoption agencies can be approved for either domestic adoption or domestic and intercountry adoption. The intention of that provision was to clarify that adoption agencies 315GC may provide prospective adopters with intercountry adoption services. However, this provision has never been brought into force, and there is no intention to bring it into force before the implementation of the Bill. This is because the provisions in the section have been overtaken by the Care Standards Act 2000, and voluntary adoption agencies will be registered under the provisions of the Care Standards Act from 2003. So in fact the situation has moved forward.
The Care Standards Act enables voluntary adoption agencies to register for adoption facilities unless it is a specific condition of its registration that it does not provide that facility. The effect is to allow the establishment of adoption agencies that can, for example, focus on intercountry adoption. I believe that that should deal with the concerns of the noble Lord, Lord Astor. I also reiterate that agencies can register under the Care Standards Act as specialist agencies focusing only on intercountry adoption. That will be done, as I said, under the conditions of registration imposed under Section 13 of the Care Standards Act.
The Adoption and Children Bill repeals Section 3 of the 1976 Act, which Section 10 amends. Therefore, following implementation of our Bill, the provisions in Section 10 will not apply, and it will be removed from the statute book through Schedule 6 of the Care Standards Act. There is therefore no need to repeal it by means of this Bill.
§ Earl Howe
I should like, just very briefly, to express my thanks to the Minister for taking us through that maze. It was extremely helpful. I am sure that there are adoption organisations out there that will be heartened by the Minister's comments, which appear to have addressed one of their major concerns in this important field.
§ Lord Astor of Hever
On Amendment Nos. 96 and 97, I accept that there are problems with the word "genetic"; there is no doubt about that. I felt that the Minister made a very good case for keeping the wording as it is. I therefore anticipate that we shall not pursue that matter.
I thank the Minister for her very full response on Amendments Nos. 98 and 102, the probing amendments on the regulations. I was very happy to hear that the Government will be consulting widely on that issue, which is clearly very important. Although we shall need to read Hansard very carefully, I expect to be happy with the Minister's answer.
Amendments Nos. 99 and 100 concern approved private social workers. I am grateful to the Minister for clarifying why these amendments might introduce further hazards. We clearly need to consider the matter in greater detail. I was grateful to the Minister for pointing out that the Government are planning to bring in additional capacity and additional safety and checks and balances. I should be very grateful to receive a copy of that letter. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 97 to 102 not moved.]
§ Lord Astor of Hever
moved Amendment No. 103:Page 46, line 31, at end insert—() A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.The noble Lord said: I rise to move Amendment No. 103 and to speak to Amendments Nos. 104 and 105.
Clauses 82, 83 and 85 are very important clauses relating to restrictions on bringing children into the United Kingdom, on giving parental responsibility prior to adoption abroad, and overseas adoptions. Our amendments would ensure that no statutory instruments under these regulations were made until a draft of the instrument has been approved by both Houses. We cannot have important regulations such as these brought into play without proper scrutiny by both Houses of Parliament, particularly as the personnel in adoption agencies often work scrupulously to the regulations, rather than to the Bill. I beg to move.
§ Lord McIntosh of Haringey
The Committee may think that they give me only the easy bits. That is because when the difficult bits come along I disappear and my noble friend Lady Andrews has to do them for me. Thankfully, this is a relatively easy bit.
I thought that the amendment's purpose was to get the Government to say more about what was in the regulations. However, my noble friend Lady Andrews said a good deal in her speech on the last group of amendments about what the regulations would contain, and I hope that that will be found to be helpful. Fundamentally, however, we go along with the Delegated Powers and Regulatory Reform Committee which has said that the level of parliamentary scrutiny provided in the Bill is adequate. We do not see any reason to depart from that.
If adoption agencies have any problems with the regulations when they appear—and after they have been consulted on, because that is an important area no doubt they will alert noble Lords opposite and a prayer will be produced that they should be debated before going forward. Even a prayer to annul them would be possible. As matters stand, however, we think that we should stick with our respected Committee's views.
§ Lord Astor of Hever
I am grateful for the Minister's response. Indeed, the noble Baroness, Lady Andrews, did give a very full account of the regulations earlier. We shall consider the matter carefully and read Hansard. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 82 agreed to.
Clause 83 [Giving parental responsibility prior to adoption abroad]:
§ [Amendment No. 104 not moved.]317GC
§ Clause 83 agreed to.
§ Clause 84 agreed to.
§ Clause 85 [Overseas adoptions]:
§ [Amendment No. 105 not moved.]
§ Clause 85 agreed to.
§ Clauses 86 to 95 agreed to.
§ Clause 96 [Proceedings for offences]:
Lord Hunt of Kings
Heath moved Amendment No. 106:Page 53, leave out line 22 and insert "National Care Standards Commission or the AssemblyOn Question, amendment agreed to.
On Question, Whether Clause 96, as amended, shall stand part of the Bill?
§ Baroness Noakes
In opposing the Question that Clause 96 shall stand part of the Bill, I wish to raise the question of what role the Attorney-General has in relation to prosecution for offences under Clauses 9 and 58.
This is, in a sense, a surreal debate. Clause 9, as we discussed earlier in Grand Committee, will allow wide-ranging regulations to be issued and will allow a breach of some of those regulations to be treated as an offence. We shall not know what will constitute an offence until we see the draft regulations, and the Minister has already told us that this House will not have the benefit of seeing the draft regulations during our consideration of the Bill. Similarly, Clause 58 creates an offence for adoption societies to disclose information in contravention of Clause 56. That in turn will depend on regulations, so we do not know what kind of offences we are talking about. However, for today, we must imagine that we know what offence is to be created under Clause 9 regulations and what disclosures will be permitted or allowed for the purposes of the Clause 58 offence.
Enter the Attorney-General and the relevant authority. Clause 96 provides that either the relevant authority can institute proceedings or the Attorney-General has to agree. There is no explanation in the Explanatory Notes of why this scheme has been adopted, nor was a real reason given when the matters were discussed in the Special Standing Committee of another place. Will the Minister say why the relevant authority—the National Care Standards Commission or the National Assembly for Wales—should have a monopoly on prosecutions, and will she say why the Attorney-General should have to consent in other cases? What if an individual was aggrieved about the release of information? Let us suppose that the National Care Standards Commission chose to do nothing. Why should the individual have to go cap in hand to the Attorney-General?
I hope that the Minister will say what public policy objective is served by confining access to redress against those who breach the rules to a limited number 318GC of public servants. If there are no good reasons, the only conclusion is that this consent requirement is an unnecessarily onerous one.
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
I shall be more than happy to assist the noble Baroness in this regard. I understand entirely her anxiety and the need for clarity in relation to this provision.
Clause 96, as amended, sets out that proceedings for offences under Clauses 9 and 58, are to be brought by the registration authority. The National Care Standards Commission will be the registration authority in England, and in Wales the National Assembly for Wales will be the registration authority.
This issue was debated by Members of the Committee in relation to Amendment No. 106 on 24th June in relation to this clause, so that it will specifically refer to the National Care Standards Commission or the Assembly.
Offences under Clauses 9 or 58 can he prosecuted by another body or person only with the written consent of the Attorney-General and the noble Baroness quite rightly asks why so.
The National Care Standards Commission and the National Assembly for Wales will be responsible for monitoring adoption services provided, and these bodies will be able to provide specialist expertise when conducting prosecutions. This provision ensures that they will be able to do so. During debates on the Bill, the need for specialisation in dealing with delicate issues in relation to the care of children has been emphasised and the body that we have designated as having that responsibility will have that necessary expertise.
Clause 96 mirrors Section 29 of the Care Standards Act 2000 in providing that proceedings for offences under certain clauses may not he brought other than by the registration authority without the written consent of the Attorney-General. The registration authority has been entrusted with the duty of maintaining and enforcing statutory requirement and that task was given by Parliament to the National Care Standards Commission under the Care Standards Act.
The requirement for any individual to obtain the consent of the Attorney-General before seeking a private prosecution is there to avoid prosecutions being brought where no useful purpose will be served, either for the general public or for the individual. This would be where the registration authority had considered that another course of action would be more appropriate. For example, there could be circumstances where an individual wishes to bring a criminal prosecution against an adoption support agency and at the same time, the National Care Standards Commission may be considering what action to take against the registered provider.
It will have the power to amend the conditions of the registration, impose new conditions or cancel the registration, as well as the power to prosecute. The commission may decide not to bring a prosecution but to apply other measures available to it—the most 319GC appropriate measure. The Committee should remember that we will be talking about regulations systems and systemic change might be what is looked for as opposed to prosecution in relation to one matter. If the individual were then to proceed with his private prosecution, this may disturb the provision of services. That could be disproportionate, especially where the commission considers that its own measures are appropriate in the circumstances.
Clause 96 ensures, therefore, that a body with expertise on agency compliance with regulations will be able to take action, including a criminal prosecution, especially as the registration authority will have the knowledge and expertise in determining whether a prosecution is viable. Thus, if for example the National Care Standards Commission uncovers a more serious offence than a contravention of the regulations, the Crown Prosecution Service would be able to pursue it. We think for example of the case where someone has committed a serious offence arranging a private adoption which is restricted by Clause 90, or preparing a private home study report, which is restricted by Clause 92. The noble Baroness said that there is a monopoly. There is not a monopoly; there is an opportunity for the most appropriate agency to undertake the prosecution.
The noble Baroness also asks about what happens then. The Committee will know that if Clause 96 were to be removed and the Crown Prosecution Service took the decision not to prosecute, an individual could seek a judicial review of that decision. Under Clause 96, on the other hand, if the National Care Standards Commission decided not to prosecute, an individual could ask the Attorney-General for consent for an individual to prosecute. If the Attorney-General were to decline, and decline improperly, the individual could seek a judicial review of that decision. It merely sets certain gateways in order to ensure that the needs of children are met.
Naturally, this provision does not preclude any person from seeking a civil claim for negligence against a registered provider. We are trying to work in a joined-up way, however, and to ensure that the most appropriate people undertake the prosecutions that can most appropriately be dealt with by them. We would certainly anticipate the Crown Prosecution Service working very closely where the need arose, where the case stepped outside the pure regulatory nature that we anticipate here. I hope that the noble Baroness will be content with that explanation.
§ 6.15 p.m.
§ Baroness Noakes
I thank the Minister for that reply and indeed, welcome her to our proceedings in this Grand Committee. I understand what she is saying in terms of creating specialised bodies which will have the responsibility to oversee the operation of the matters governed by regulations and those people being in the best position to prosecute for any failures in that respect. That is no doubt a very good thing.
320GC There remains a residual concern if one of those bodies chooses not to pursue an action that an individual felt particularly aggrieved about. The hurdles seem quite high for that individual to take action himself. Judicial review, for example, is not something that people would undertake lightly. I hear what the Minister has said, however, and I shall look forward to reading her words carefully in Hansard. Clause 96, as amended, agreed to.
Clauses 97 to 105 agreed to.
Clause 106 [Avoiding delay]:
§ Baroness Noakes
moved Amendment No. 107:Page 57, line 15, at end insert—(3) It shall be the duty of the Lord Chancellor's Department to monitor the proceedings referred to in subsection (1), to keep statistical information on them and to publish a summary of them annually.The noble Baroness said: I rise to move Amendment No. 107, which seeks to add a new subsection (3) to Clause 106. It is a modest amendment designed to keep a spotlight on one crucial aspect of the adoption process; namely, delay. Clause 106 will require a court to draw up a timetable for dealing with questions that arise during adoption or placement order proceedings. We welcome this measure.
The new subsection would place a duty on the Lord Chancellor's Department to monitor those proceedings, to keep statistical information on them and, importantly, to publish a summary annually. At present, I understand that this information is not kept by the department.
It is not entirely clear where the main delays arise in handling adoption cases. There is agreement that there is delay, but, from different ends of the telescope, there are different reasons ascribed to where those delays occur. Those in the legal system say that the delays arise outside the legal system: for example, in the making of reports or assessments. Those outside the system tend to suggest that the lawyers are to blame—whether the courts themselves, or the lawyers acting in the case. Keeping statistics and publishing them would be an important tool in unblocking any further causes of delay. As measurement and management go hand in hand, until we can measure the dimensions of the problem we cannot begin to manage it.
I know that the Government are committed to eliminating delays in the adoption process. I am therefore confident that the Minister will welcome this amendment. I beg to move.
§ Baroness Scotland of Asthal
I hope that I shall be able to reassure the noble Baroness, Lady Noakes, that her concern in this regard is unnecessary. I shall seek to explain exactly what the Government are currently doing in relation to these matters.
When a court is dealing with a matter where a placement or adoption order might need to be considered, Clause 106 provides that it will be under an obligation to draw up a timetable and give any directions that are necessary to ensure that that timetable is adhered to. We certainly believe that this should make a material difference to the issue of delay. 321GC This clause will ensure that the courts maintain a tighter control on adoption and placement proceedings and do not allow them to drift.
Clause 106(2) also gives the power for rules to set out the time-scales in which certain processes should take place, and to make any other provision with respect to these proceedings to prevent delay.
As the noble Baroness explained, Amendment No. 107 would require the Lord Chancellor's Department to monitor proceedings relating to placement and adoption orders, to keep statistical information on them, and to publish an annual summary of them.
We already have a considerable amount of data. Statistics relating to the operation of courts and adoption proceedings are published on a regular basis. The Office for National Statistics in its Population Trends series publishes information on adoption resulting from the analysis of adoption orders and adoption applications provided by the Court Service. Similar information is also published annually in the judicial statistics by the Lord Chancellor's Department.
The Government intend to enhance the collection of information on adoption. We have identified the key stages in the adoption court process. Cases issued in specialist centres in January 2002 are being tracked to monitor the time taken and to ascertain what barriers there may he to delivering an efficient service to all those involved in adoption cases. The noble Baroness is right to say that many reasons are given by different parties as to why this is happening. Some kind of empirical understanding of this issue would greatly assist everyone.
At the same time, we are working to create a unified data collection system so that detailed and useful information on adoption is collected routinely. This will enable bench-mark time-scales for cases to be set. It is the first step to meeting the commitment made by the Government in the adoption White Paper to reduce delay and improve the level of service to people using the courts by designating specialist centres, issuing guidance to courts on case management and obtaining sample information on adoption. We will consider the best way in which this information should be made available.
A range of statistical information is made available on a regular basis and a programme of work is currently underway to ensure there is a comprehensive data collection system on the courts' performance in relation to adoption. This work will ensure that we are in a position to make available on a regular basis the statistics Members of the Committee would like to see. Therefore, we hope the noble Baroness will accept that this amendment is unnecessary.
§ Baroness Noakes
I thank the Minister for that comprehensive reply. From what she has said, the enhanced information should enable the sources of delay to be identified and therefore action taken, and that information would be published in some form or another. If that is the case, I have pleasure in begging leave to withdraw the amendment.
322GC Amendment, by leave, withdrawn.
Clause 106 agreed to.
Clauses 107 to 109 agreed to.
§ 6.30 p.m.
"REGULATIONS FOR SEPARATE REPRESENTATION OF CHILDREN
In section 8 of the 1989 Act after subsection (4) there is inserted—
(5) The Lord Chancellor may make regulations providing for the separate representation of children in specified circumstances relating to any matter arising from proceedings under this section."
§ The noble Earl said: The "ZZs" give no suggestion of any soporific purpose in this. I must apologise to the Committee for having appeared, as it were, by parachute. If any Members had been watching the screen, they will have seen that I have been fairly busy in the Chamber and will be again later tonight. I regret that I have not been able to follow more of the proceedings of this Committee and I have been interested in those I have.
§ We now come to a cluster of amendments which are all concerned with the problems of contact and especially of enforced contact. Amendment No. 107ZZA deals with independent representation of the child. Amendments Nos. 115 and 116 also deal with this.
§ I do not believe that any Member here is quite so optimistic as to pretend that we have yet achieved gender equality, but I believe that we are making fairly steady, even if rather glacial, progress towards it. Occasionally one feels in gloomy moments moved to doubt it. What convinces me that that is the case is that when occasionally I am pulled up for having made a chauvinist or old-fashioned assumption, it is not women of my own generation who do so, it is my two sons. I have seen in my own family a steady advance in attitudes ever since my grandfather first converted my great-grandfather to a very reluctant support for votes for women in the 1860s.
§ The progress is steady but it is necessarily a part of any such progress that, as we have been seeing women steadily wanting to involve themselves in what have been male spheres of operation, so also we must see men wanting to involve themselves in what have regularly been seen as female spheres of operation. The fact that now more than ever men want to be involved in child care is a development that we all welcome, and those who have listened to me at Question Time in the Chamber know that is a long-standing opinion of mine. That that should be encouraged is entirely good.
§ However, the difficulty with law enforcement, and in particular the difficulty with law enforcement on the lower level, is that it seems to be only capable of getting one idea at a time. The idea that men have contact with their children is a good one, but that must be subject to two other provisos. The first, with which this amendment is concerned, is the consent of the child. The second, we shall come to in the next amendment 323GC to be moved by the noble Baroness, Lady Thornton, and the one after that which is to be moved by the noble Baroness, Lady Gould of Potternewton. As my name is also to it, I shall move it if she is not here. It deals with the question of safety because if the welfare of the child is to be taken as paramount, the child's safety must be the most paramount consideration of all. Where a contact order is at the expense of safety, there would be a case against it—I shall come to that later.
§ The central contention of this amendment is that a child is not a chattel. A child has a mind, a will, passions, hopes and fears, and any policy for giving contact orders which does not take account of that will do good neither to the child nor to the parent with whom contact is sought.
§ Before the council closed it—in circumstances with which I shall not detain Members of the Committee—there was a women's refuge extremely close to us. My wife used to visit it regularly. Normally, of course, they did not admit men, but just once they let in my son, then aged 18. He had been carrying a large bundle of clothes, books and other things for the refuge and was left standing outside on the wettest day of the year, so they very kindly took him in. He found, although he did not know it, that the boy of six he was first talking to was one who ran screaming in terror at the sight of any man who came anywhere near him. It is fairly obvious that that terror is itself evidence of something fairly traumatic that had happened to him.
§ It turned out, on inquiry afterwards, that he had been regularly buggered by his grandfather with a knitting needle. One of the moments when I have been most proud of my son was when he was the first man with whom this boy of six condescended to play. He of course tried to wreck the game and my son told him, "If you want to stop you can, but if you are going to wreck the game we cannot go on", so he went on. In cases like that, the child's own state of mind must be taken as key evidence.
§ It is a sad fact that, where parents separate, the father does not keep contact nearly as often as one would like. It is regularly said that the mother has poisoned the child's mind against the father. That, of course, is a very laden word. In some cases, it may be absolutely literally appropriate, while in others it may represent simply a value judgment. One does not know which, without knowing the particular family very well indeed.
§ Suppose it to be literally true. For poison, the law is the wrong learned profession to call in. If the child feels that way, the feeling is a fact, whether justified or not, and the law cannot cure it. Enforced contact, in this situation, can be nothing but a cause of terror and it is likely to be an obstacle to the mending of the relationship between the father and the child—because, very often, it is the father who is involved. It may prevent what could, in other circumstances, have been a slow mending of trust between the two people, producing a real and deep friendship. If one destroys that by enforced contact, creating terror in the child, I 324GC do not see that one is doing good to the child, or to the father, or to the interests of the family, or indeed to the interests of justice.
§ The point about giving a child independent representation is that it allows the child to think for himself. It puts him down in a place where he can talk to someone with no axe to grind. Sometimes, it is simply a matter of getting away from the influence of the resident parent, or sometimes it is a matter of allowing him to think until the mind changes. Sometimes, it becomes clear that the mind is so deeply set that any chance of contact would be completely useless. Sometimes, indeed—though that brings us to the next amendment—it brings us to situations where contact would be so dangerous for the child that it is not to be advised.
§ We have had a lot of discussion of the House of Lords judgment of In Re H & R—the one that said the more serious the allegation, the higher the standard of proof that was needed. This was a case in which a girl had accused her stepfather of raping her. The question here is not just whether that allegation was proved. Suppose it was false? That to me would indicate perhaps a situation as serious as if it were true because, if that allegation were falsely made, it would indicate a dislike of the stepfather so deep that that in itself would be an obstacle to contact.
§ I did wonder, reading through the judgments in that case, whether their Lordships—who, in general, I regard as the highest intellects it has been my privilege to listen to in this Chamber—had perhaps got the wrong end of the stick. They were concerned only with the man's rights and those rights, naturally, might also depend on whether he had done something wrong. If, however, they had taken literally the proposition that the interests of the child should be paramount, they should have been considering whether the child's feelings about the stepfather for whatever reason were so deep and so hostile as to render all contact at best useless and at worst positively dangerous.
§ Suppose I had been advocate for that child? These are questions about which I would have thought very hard; I have no idea what I would have said in court. Whatever it was, I hope it would have been something that the court might have found interesting to listen to. There is a whole realm of justice that begins from the recognition of the child as an independent person with rights, with hopes, with fears and with a will. I beg to move.
§ The Earl of Listowel
I apologise to the Committee for not being here earlier in the proceedings this afternoon. I strongly support the amendment standing in my name and that of the noble Earl. There has long been grave concern at the gap in child protection measures that our private law arrangements allow. During proceedings on the Family Law Act 1996 my noble and learned friend Lord Simon of Glaisdale said:I believe there is a general consensus arising out of the committee proceedings that it would be desirable that the interests of children have representation in some way".325GC Earlier, Paul Boateng had strongly urged his concerns that the child's interests were not being well enough represented. Indeed, he called this matter very strongly to the attention of the House. This point was attended to in the Family Law Act 1996 under Section 64—an Act that unfortunately foundered, not for any reason to do with this particular amendment. The principle has already been agreed. It has been placed on statute which has only fallen through ill chance. Surely, there can be no case that this amendment is premature or that arrangements are required prior to legislation to see how it would be put into practice.
Clearly, we are failing to protect our children adequately. To give an example: the children of a mother who was an alcoholic—the mother incapable of parenting—were left in her care while she sought to deny access to their father. On one occasion the 10 year-old daughter was left sitting on the stair by her mother who told her that she was going to the shops to buy food for their supper. Mother did not return and this was just one example of her inconsistent treatment of her daughter.
The father in this situation kept quiet because he sought a reconciliation with the mother. It was only after a guardian was involved and a thorough report on the wishes and needs of the children was produced that it was decided to move the children in with their father and his extended family. The children then thrived in the new situation. This amendment seeks to address the gap that currently exists in our child protection system. It seeks to ensure that in certain circumstances the voice of the child is particularly well attended to. The example I have just cited is not an uncommon one of parents who are under pressure and children who are at risk but are not in a sufficiently critical situation for a care order to be introduced.
A mechanism already exists to introduce a guardian and a child solicitor into this process. In Section 9.5 of an Act, the name of which I have forgotten, there already exists such a measure. However, this is seldom used, is difficult to invoke, causes long delay to proceedings and is inadequate to meet the needs of children.
In another case a mother was threatened with imprisonment for failing to allow the father access to their three year-old daughter, whom I shall call Melanie. Christopher, the 14 year-old son, and Katie, the 18 year-old daughter, were not consulted or asked for their opinion on what was going on in their family. Following the intervention of the National Youth Advocacy Service (NYAS), Christopher's concerns about the treatment of his three year-old sister were manifested to the court. He had experienced severe violence from his father and had heard from Melanie information which led him to be concerned that she might be being used sexually by their father. A full report by the guardian enabled a proper resolution of the case.
The number of instances where mothers are being faced with imprisonment is increasing. Surely, there can be absolutely no excuse for not finding out the wishes and needs of children in these circumstances. 326GC Our amendment would allow this while also permitting flexibility to the Lord Chancellor so as not to incur unnecessary expense to the public purse.
Concern has been expressed that introduction of a right of children to representation in some circumstances in private law cases would slow down proceedings and add to costs. Currently, it is true that this can be the case under the Section 9.5 currently used. However, this amendment would allow timely involvement of advocate and guardian. A full report to the court on the wishes and needs of the children will often enable a speedy resolution of proceedings. The additional cost of a child's representation could be met by an increase in the divorce filing fee, which would enable a couple better to meet their parental responsibilities to their children and would be very much in line with the Government's desire to promote parental responsibility. I feel strongly that this amendment, or something similar to it, should be incorporated into the Bill. I look forward to the Minister's reply.
§ 6.45 p.m.
§ Baroness Thornton
I rise to support the two noble Earls who propose the amendment. There is, indeed, a gap in legislation arising out of the non-implementation of Section 64 of the Family Law Act 1996.
During the passage of the Family Law Act 1996 through the House of Commons great emphasis was placed by the then Opposition on the need for the separate representation of children involved in private law proceedings. Indeed, as the noble Earl has said, such was the concern that Paul Boateng, leading in Committee, chose separate representation and domestic violence as the two items for a set piece debate at Report stage. At that time he researched the position of children involved in private law disputes as,a neglected family justice issue" [Official Report, 17/6/96; col. 589.]Indeed, there was a consensus in both Houses on this matter. The noble and learned Lord, Lord Simon of Glaisdale, spoke on the Family Law Bill on 29th February 1996. The result was Section 64 of the Family Law Act, which has already been referred to.
The failure to implement this provision does not diminish the need for it. Indeed, the intervening years have led to increased concerns about the vulnerability of children involved in situations of domestic violence, and the lack of capacity for the court to order separate representation for them within Section 8 of the private law proceedings. Also, as current experience is showing, without such provisions there are effectively few safeguards within the present system.
A government briefing of 26th June refers to a "scoping exercise" before undertaking wider consultation on how children are represented in private Children Act proceedings. That indeed is welcome. However, I am bound to ask: how much more consultation is needed to add to a debate about which there was such cross party consensus which was agreed six years ago? The facts are very clear and 327GC further delay will add only further young casualties to a list of those who have found themselves with no protection.
§ Baroness Scotland of Asthal
I thank all Members of the Committee who have participated in this debate. The issue generates a great deal of concern and I understand why that is so. However, I hope that what I say will be reassuring to the Committee.
The noble Earl, Lord Russell, quite rightly says that the child is not a chattel, and that the child's state of mind is of real value and importance. He makes some telling points about the need to mend fences and to make sure that where a relationship has been fractured there are attempts to reconstruct that relationship in a constructive way, and to go at the child's pace, all of which is right.
When the courts come to determine these issues in the exercise of their judicial discretion, those are precisely the issues that any judge dealing with these matters will have to take into account.
I would also like to reassure the noble Earl that on many occasions where children have proven to be implacably hostile to contact, the courts have taken that implacable hostility into account, notwithstanding the fact it may not be soundly based, because the welfare and interests of the child determine that that is the criterion that the court gives weight to. I know that there is concern about these issues, but I hope I can reassure the noble Earl in relation to that matter.
The noble Earl raised the issue of In Re H & R, which was a very specific case. It was a public law case where care proceedings were on foot and it had to be determined whether the step parent had or had not sexually abused the child. It was really dealing with the burden of proof in relation to those matters. Although it may be right that it settled the burden of proof, if I may respectfully say so, it does not detract at all from the court's determination of what is in the welfare of the child on any particular case.
The most important issue is whether the child's voice is at present able to be heard, and what steps there are at the moment, if any, to make sure the child can be, or is represented in given circumstances. I hope that I will be able to reassure Members of the Committee about the current position. Amendment No. 107ZZA would allow my noble and learned friend the Lord Chancellor to make regulations providing for the separate representation of children in specified circumstances arising from any proceedings under Section 8 of the Children Act 1989.
Currently, children's views are generally put before the court in private law Section 8 proceedings, within the CAFCASS officer's report on matters relating to the welfare of the child. The Lord Chancellor may make regulations specifying matters to be dealt with in any report, and in addition the court can make particular directions as to matters to be included in the report. This matter is already dealt with quite extensively by the Family Proceedings Rules.
328GC Rule 4.11B of the Family Proceedings Rules requires the CAFCASS officer, known as the child and family reporter, to notify the child of the contents of his report as he considers appropriate to the age and understanding of the child, including any reference to the child's own views on the application and recommendation of the CAFCASS officer. Rule 4.11B(5) also requires the child and family reporter to consider whether it is in the best interests of the child to be made a party to the proceedings. The Family Proceedings Rules 1991 already allow a child to be made a party to private law proceedings where the court considers it appropriate to do so; for example, where expert evidence has to be adduced by a guardian ad litem on behalf of the child or where the child is of sufficient age and understanding to instruct a solicitor. The court will make the child a respondent where it would be in the child's best interests, and CAFCASS has taken over the Official Solicitor's role in such cases.
A child being separately represented would involve a lawyer being instructed to put evidence before the court on behalf of the child, and if there is a guardian ad litem—usually a CAFCASS officer—the guardian will instruct the solicitor. If the child is mature enough to instruct a solicitor directly, the court may allow her to do so. In those circumstances the court would consider very carefully whether it would be in the child's interests to listen to the evidence given by his or her parent in the case and give his or her own evidence. One should not under-estimate the potential for difficulty where a child becomes a full party in proceedings and takes up arms in terms of legal representation in relation to these issues.
As many Members of the Committee will know, the Government are currently undertaking a scoping exercise about undertaking wider consultation on how children are represented in private law Children Act proceedings. My noble friend Lady Thornton asks how much more consultation we need. The most important thing is not simply that we allow children to be represented or participate in proceedings because they can already do that through the rules I have just set out. It is how we make that effective. How do we make sure that the child's voice is heard?
The consultation process we are going through will be with those agencies which are intimately connected with children and more broadly to try to find the best conduit for that child's voice, so that the effect of what the child says will be heard in a more meaningful and effective way. We have to try to find the right mechanism to do that. We therefore believe that consultation is an important step to take. Our current plans anticipate a full consultation commencing later this year.
This amendment is in similar terms to provision in Section 64 of the Family Law Act 1996. As Members of the Committee are aware, on 16th January 2001 the Lord Chancellor announced in a Written Answer that the Government were not satisfied that it would be right to proceed with the implementation of Part II of the Family Law Act 1996, within which Section 64 falls. The Government will invite Parliament to repeal 329GC the relevant sections of the Act once a suitable legislative opportunity occurs. At that time, the Lord Chancellor made it clear that it would not be possible to cherry pick particular provisions of the Act and implement them separately, as the provisions of Part II were all procedurally linked.
Having considered this matter very carefully, we do not believe that we need to replicate Section 64 of the Act in the Bill. There is already a wide rule-making power in Section 93 of the Children Act 1989 which allows the Lord Chancellor to make rules on a variety of matters which would include the representation of children.
In addition, the rule-making powers under the Matrimonial and Family Proceedings Act 1984 and other related statutes will also remain in place, so that rules on this issue will continue to be able to be made for divorce or children proceedings.
This amendment, which I hope your Lordships will accept, is therefore not required in order for secondary legislation to set out where children should be separately represented in private law proceedings. We have that power now and the rules provide for this to occur.
§ Earl Russell
Before the Minister sits down, can I try to clarify one thing that she said about the case of In Re H & R? Am I right in understanding that she was saying that, because it was a public law case, it therefore does not create a precedent in private law?
§ Baroness Scotland of Asthal
No, I was not saying that. I was saying that the case of In Re H & R was in relation to a sexual abuse allegation made in a public law case where the judge at first instance had not clearly set out that he understood which burden of proof should be applied. That issue was thereafter clarified.
I am saying that in considering whether there should or should not be contact—which was the issue on which the noble Earl concentrated in his remarks, and is something with which the courts are familiar—the whole issue of what is in the child's paramount and best interests is something that the courts have been able to take into account. Therefore, where there is implacable hostility towards the parent, the court can be seized of that fact and take appropriate action in order to protect the child. That is within judicial discretion.
I was simply reminding noble Lords that In Re H & R referred to specific, public law circumstances where the balance of the burden of proof was under consideration.
§ Earl Russell
I thank the noble Baroness. I might then possibly speculate—but I can do no more than speculate—that future such cases might not necessarily lead to the same decision. However, this is dangerous ground and I shall not venture any further on it.
I appreciate very much indeed the whole tone of the Minister's reply. In fact, it was about as generous as a reply can be without doing what is asked. I 330GC understand, of course, that the power to do what is asked already exists. I know that it is sometimes exercised. There was a case recently among people who are known personally to me where the decision to produce an independent advocate for the child saved what was threatening to turn into a very nasty situation and produced an entirely satisfactory resolution.
However, the fact that it can be done does not prove that it always is done. What I should like to see is the idea that the child has a potentially separate interest is so much part of the air we breathe that it is automatically part of the representation that is before the court. Otherwise, I do not see how we can know in advance of a long, private conversation with the child, such as we are not likely to be vouchsafed, whether in fact this is one of the cases in which art independent advocate is needed or not. It is only when we have the independent advocate that he or she may find out whether they are or are not needed.
I understand, of course, that the courts in divorce and subsequent proceedings allow the child to state a preference. I have actually been here myself, and looking back on it, I believe that I got it absolutely and entirely wrong. I stated my preference. I stated it, if I may say so, somewhat in the manner of a gramophone record, believing that I did so in all total sincerity. So far as I was capable of knowing at that time, that was the case. If anything could have opened my mind, it would have been the chance to listen over a fairly prolonged period to the sound of my own voice, making my own case, to somebody listening to me with no axe to grind whatsoever. That can be a very salutary experience, as many of us have found in the course of debate in your Lordship's House.
I would have valued the chance to have that experience. I would like people who come after me and are in this situation to have that experience.
So, I still think that the amendment would do something that is not being done at present. However, I do not think that this is a matter where Divisions are likely to be particularly useful. This is a culture change we are going through. What I deduced from the Minister's reply was that we are at present halfway across the channel. I look forward, therefore, to going a little further. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 110 agreed to.
§ 7.00 p.m.
"ALLEGATIONS OF ILL-TREATMENT MADE IN SECTION 8 PROCEEDINGS
After section 8 of the 1989 Act there is inserted—
§ "8A ALLEGATIONS OF ILL-TREATMENT MADE IN SECTION 8 PROCEEDINGS
- (1) Where it is alleged that a party to the proceedings has inflicted ill-treatment on the child or on another person, the court shall, as soon as practicable, determine on the basis of the evidence presented to it by or on behalf' of the parties to the proceedings, whether the allegation of ill-treatment is proved.
- (2) Where the court is satisfied that a party to the proceedings (in this section referred to as the "abusive party") has inflicted ill-treatment on the child or on another person, the court shall not—
- (a) make any order granting the abusive party residence of the child; or
- (b) make any order granting the abusive party contact (other than supervised contact) with that child,
- unless the court is satisfied that the child will be safe while the abusive party has residence of, or contact with, the child.
- (3) Notwithstanding subsection (1), where in any section 8 proceedings—
- (a) the court is unable to determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings whether or not an allegation of ill-treatment is proved; but
- (b) the court is satisfied that there is a risk of harm to the child,
- the court may make any order under this Act that it considers necessary to protect the child.""
§ The noble Baroness said: This amendment is intended to explore what I appreciate would be a truly significant change in British law. I should like now to explore the possibility of making such a change, and at a later stage we may be able to consider the possibility of what might be achieved by such a change.
§ When I was briefed about this amendment and had a discussion about it with an honourable friend in another place, she said that they did not get a chance to discuss it thoroughly because it came in at the tail end of their discussion in Committee. I assured her that that was not likely to happen in your Lordships' House and that there would be a full discussion in Committee.
§ This amendment seeks to address the issue of ensuring that contact and residence arrangements are safe for children. In another place, the Government tabled amendments to the Adoption and Children Bill which will amend the Children Act to include witnessing domestic violence under the definition of harm and to require that the courts decide whether allegations of violence are proved before granting contact. I think that everyone will warmly welcome that move.
§ However, the Government did not go so far as to require the courts to ensure that contact or residence orders are safe for children. Many of us feel that this is essential. In recent years, children have been killed in England and Wales as a result of contact arrangements. I need not go into detail about those cases now because many noble Lords mentioned them on Second Reading. However, since then, I have received evidence and reports of further cases to which I shall refer in these remarks.
§ In these circumstances, we could perhaps learn from the experience of New Zealand. As noble Lords may recall, in 1994, New Zealand was shocked by the murder of Christine Bristol's three children by their violent father. What was particularly shocking in the case was that Alan Bristol, the father, had been granted residence of the children even though his wife had obtained a protection order against him. A ministerial inquiry was set up, and within five months 332GC it concluded that this tragedy could not have been prevented under their family law as it was then. The New Zealand Guardianship Act 1968 was subsequently amended to provide greater protection for children.
§ The key feature of this legislation is a rebuttable presumption. It is the presumption that residence and unsupervised contact will not be granted to a parent who is found to be violent. Clearly, the courts cannot be held accountable for the safety of a child in all circumstances, and the rebuttable assumption is not an absolute presumption. Orders for residence and unsupervised contact may be granted if the court is satisfied that this will be safe for the child. This lies at the heart of the amendment that I am proposing today.
§ It is essential that our family law justice system does not place children in danger. When I have been describing to friends and acquaintances why I am exercised by this issue, they find it absolutely amazing that children are not offered the same protection in private law proceedings as they are in public law proceedings—that children can be placed in these kinds of danger. It is an issue that requires a remedy. That is one remedy; it may not be the right one, but there is no doubt in my mind that this issue requires a remedy.
§ In conclusion, I shall refer to some of the cases that have been brought to my attention by Women's Aid. The organisation has written to me about seven new cases that have come to its attention. These are in addition to the 15 deaths that the Lord Chancellor's Department is at present examining. The letter from Women's Aid mentions four cases involving allegations of child sexual abuse, which is notoriously difficult to prove legally. One mother could not provide the "higher standard of proof" required by the judgment In Re H & R (Child Sexual Abuse) , which has already been referred to in this Committee.
§ In three of these cases residence was granted to the father against the professional advice provided by child psychiatrists, child psychologists, and a doctor. In the fourth case, social services confirmed that a friend of the father was a known paedophile, and the senior social worker stated that he had no doubt that the mother was telling the truth when she alleged child sexual abuse. Another mother has refused to comply with a residence order, has terminated all contact with outside agencies, and has gone into hiding with her four children—frankly, that is what I would do in that situation.
§ In three cases there was evidence of violence to the mother in terms of police records and non-molestation orders. In one case, the court applied the good practice guidelines, concluded that the father was sexually deviant, and had been very violent to the mother and granted him residence. Another father was granted residence despite acknowledging that he had been violent to the mother while she was holding the child. I could go on.
§ There is a serious problem here and it is twofold. First, we have the culture that has—quite rightly—been encouraged by my Government; namely, that 333GC parents should take responsibility jointly for their children, that fathers in particular should take responsibility for their child, and that contact is, by and large, a good thing. The problem is that this is leading our courts not to take the child's safety into consideration. It is a cultural issue about which the law is not necessarily required to do anything. However, it does require action by the Lord Chancellor's Department—a matter that I know those concerned are addressing. Secondly, this is such a serious issue that the Government need to address it by way of legal remedy. I beg to move.
§ Earl Russell
I rise to support this amendment. In the absence of the noble Baroness, Lady Gould of Potternewton, who was to have moved Amendment No. 107ZB, I shall speak also to that amendment.
The real trouble with domestic violence is that people do not like the idea of it. They do not like thinking about it and, because they do not like thinking about it, they like to pretend that it does not happen. Alternatively, like Dickens, they like to think that it happens only among those mean persons in the lower classes from whom proper manners cannot be expected. That, of course, is very far from the case. It is by no means class-specific. However, because people do not like thinking about it, it is not part of the culture in a great many circles to take the care about it that would he taken about any other danger of equal severity.
As recently as this morning, we read in newspaper reports of a case—about which it is far too early for us yet to know the rights and wrongs—regarding four children and their father who were found dead in a car, with a suicide note being left by the father. A case like this reminds us of one of the possibilities that must be considered; namely, that the father has in fact killed his own children. I will say no more. I hope that that is not in any way a prejudicial comment.
Neglect and abuse are not entirely gender-specific, although obviously it is much easier for someone of superior force to do it. There is also a case that was reported in Community Care, since this amendment was tabled. This was a finding of the Ombudsman against Birmingham City Council. The father complained about his children being put temporarily into the care of his former partner. The report states that,The ombudsman found that all three children experienced significant neglect and some of the ill-treatment could have been avoided if the children were removed sooner.The concerns expressed by the man and his children's school were 'largely ignored', no proper investigation was carried out and no social worker was assigned to the family, the ombudsman concluded".The ombudsman said that the attitude of staff towards the father who was complaining was "inexcusable" and ordered the council to pay £2,000 to the father and an undisclosed sum of damages to the children to be held in trust until they are 18. Birmingham City Council has better things than that to do with its money. That is from Community Care of 13–19 June 2002.
334GC We need a greater and wider degree of awareness than we have at present. Women's Aid, after the new guidance from the Lord Chancellor's office, and after the publication of the consultation paper entitled Making Contact Work, conducted a survey among 127 refuges. In passing, let me say that I hope that one of the things that is happening out of the Chancellor's largesse this afternoon is the provision of a number of women's refuges rather closer to the already inadequate number asked for by the Home Affairs Select Committee in 1975. That is something on which progress is needed.
The survey asked whether court practice had generally improved since the consultation. Of 127 refuges, only 11 thought it had, 66 thought it had stayed the same, 11 thought it had become worse and 39 said they did not know. They were asked whether children who did not want contact with a violent parent were being listened to and taken seriously, and two in 127 said yes, 39 said sometimes, 40 said that the children were not being listened to in these circumstances, and 45 per cent said they did not know.
The survey gets worse as it goes on. It is from an organisation with which I have done business many times, and I have learned that it is trustworthy. It found numerous cases of the children being pumped for information about the whereabouts of the mother. This is something that anyone who is used to this business comes to expect, whereas those who like to keep it under the carpet are taken by surprise every time.
I do not know the number of cases there have been in the past 10 years of women murdered when they are traced by violent former husbands through contact, but I believe that it is quite a large number. There was one I remember a few years back that was quite widely publicised, which took place in the forecourt of New Street station in Birmingham. Publicity is no deterrent once a man gets desperate enough.
Sixty of the 127 refuges said that they knew of cases in their area where a violent man had been able to use court proceedings to track down his former partner. I speak of cases since 19th June 2000. It is a fairly large number of cases. One case was reported in which a man followed his former partner home after a con tact visit, broke into her house and stabbed her. Fortunately she survived, but I gather that this was only just.
I know that the Lord Chancellor's Department is familiar with the case of Georgina McCarthy, about which my honourable friend Mr George did a great deal of work. That is one where the tracing was done through letters from medical professionals who, if they are not thinking about the issue and not culturally awake to it, do not always take the sort of precaution that they would normally take if they knew what they were dealing with.
Thirty refuge projects said they knew of cases of women who had been ordered to hand over their children for contact visits even though the woman had previously been warned by social services that the 335GC children could be taken into care if she did not separate from the man concerned. That sounds like a case of the left hand not knowing what the right hand is doing.
Eight refuges said they knew of women who had been ordered to hand over their children for contact visits although the father or stepfather was a Schedule 1 offender, convicted of cruelty to that particular child. Here again, the left hand does not seem to know what the right is doing.
Forty-five knew of cases where an abused woman had been threatened with sanctions to force her to comply with a contact order. It really is no use threatening the woman, even if it were morally justifiable, because there are plenty of cases, some of them known to me, where however many times you threaten the mother, even if you imprisoned her, the child would not go. In fact, if you imprisoned the mother, all the more the child would not go; the child would probably never go.
Punishing people for other people's actions is in all cases judicially wrong; this is something that must stop. Forty-nine abused women were threatened that residence would be granted to their ex-partners and 36 were threatened with imprisonment. Between 45 refuge projects, they were aware of 128 abused women and 259 children who had been forced to comply with a contact order since 19th June 2000. That surely establishes that the scale of the problem is considerable. It also establishes that not all authorities that deal with it are awake to it and, further, that it is a real danger to the safety of those involved.
What the precaution against it needs to be is not something on which I would wish to be dogmatic. There must, however, be a culture in which it is recognised that you do not hand people over into danger without, at the very least, their own consent. That is something that could be taken on board.
This does not mean that every man who has been violent is necessarily always a danger. There are such things as cure and treatment, though they are not common. I am, however, saying that where there is a known danger, that danger must be weighed up and assessed, very much in the way demanded by Amendment No. 107ZB, before the child and the mother are left to the tender mercies of somebody they have no reason to trust. I hope that something is going to be done about this because it has gone on long enough.
§ 7.15 p.m.
§ Baroness Noakes
I rise to support these amendments. The noble Baroness, Lady Thornton, in particular made a powerful case for Amendment No. 107ZA. The noble Baroness, Lady Scotland, will doubtless tell us about the court procedures that exist or may be amended following consultation. I was grateful for her letter of 25th June which set out much of this in very helpful detail.
However, I am far from convinced that leaving the law unamended and resting merely on guidelines is an adequate solution. We know that guidelines are not 336GC always enough to protect children, which is why, for example, the Government have introduced the welfare principle into the Education Bill, where there is to be a duty on schools to report abuse. That is because the Government knew that guidelines would not be enough.
I am particularly concerned to see that subsection (3) of Amendment No. 107ZA is enacted. We know that, especially where very young children are involved, it is difficult to prove ill treatment or abuse. We also know that domestic violence predominantly affects women with very young children. I am not going to enter the debate on the precise effects of In Re H & R, which has already been discussed. It is my understanding that that has raised the evidential burden too high and we have to take this legislative opportunity to put the child's welfare at the forefront of proceedings. I hope the Government will look favourably on these amendments.
§ The Earl of Listowel
I support Amendments Nos. 107ZA and 107ZB. Listening to the noble Earl, I am reminded of something TS Elliott said: that man cannot bear too much reality. Sometimes some things are too hard to think about and reading about the performance of the judiciary in this area, I have concerns that sometimes the reality has not been properly acknowledged and has not been addressed. Having said that, I feel very reassured that the noble Baroness, Lady Scotland, is managing this area. I know how well respected she is with her experience in child protection, which I find helpful, and I was grateful for her earlier full reply.
The noble Earl, Lord Russell, referred to the circumstances in which some women are threatened with prison sentences for not allowing contact to their children. Surely in those circumstances, can there be any reason why there should not be a full report by a guardian and representation for the children in at least those particular cases? We would then know what was in the best interests of the child, whatever the mother or the father wished.
I wonder whether the noble Baroness might furnish us with a date for the publication of the report into the inquiry on the 15 deaths through contact, perhaps not now but some time in the course of our proceedings.
I am sure that it would be very helpful in our deliberations at the next stage of the Bill to have access to that report.
§ Baroness Thornton
If my noble friend the Minister replies to both of these amendments, perhaps I may say a few words about Amendment No. 107ZB, which is a partner amendment to the one I proposed. It is based on the definition of domestic violence contained within the New Zealand Domestic Violence Act 1885. In its report to the Lord Chancellor on the question of parental contact in cases where there is domestic violence, the Children Act sub-committee commented that in its view Section 3 of the New Zealand Domestic Violence Act provides a very useful, comprehensive, gender-neutral definition, which I would urge upon the Government.
337GC This amendment suggests that court professionals who do not always understand the nature of domestic violence—as many Members of the Committee have already commented—are likely to make decisions which put abused women and children in danger.
§ Baroness Scotland of Asthal
We have obviously listened very carefully to what all Members of the Committee have said in relation to this issue. We take on board very clearly the need to recognise the interests of children in this regard and to put their safety as paramount. The noble Earl, Lord Listowel, made reference to my own experience. In the 22 years that I operated in this field, from 1977 to 1999, we had extensive opportunity to discuss these matters with the judiciary, both at the Bar and otherwise. These issues have been trammelled for many years, and the importance of keeping a balance between the need to preserve contact while ensuring that the provisions one is making for the children are safe, has exercised judicial minds throughout this whole period.
The noble Earl, Lord Russell, spoke of a change in culture in relation to domestic violence. It is right that in the 1960s and 1970s, there was, perhaps, a reluctance to acknowledge the part that domestic violence played, and also a tendency to see it occurring only in certain strata of society.
We know that abuse, whether it is verbal, physical or sexual, occurs in all parts of society and is no respecter of persons, race, culture, income, or anything else. I could not let the Committee go away with the feeling that we have not moved forward. We have moved forward considerably in this area in trying to take the steps which are necessary to keep children safe.
Therefore, it is no longer the case that domestic violence is an issue that we like to think about. Certainly, the professionals and courts dealing with it, regrettably, have to think of these issues all too often and they are taken seriously. Members of the Committee will know that provision is now being made that all judicial officers who undertake work in this area must have specific training in relation to child care issues before they are allowed to have a "family law ticket" which enables them to hear cases of this sort.
It is concerning to hear the comments made by my noble friend Lady Thornton, and noble Earls in relation to some of these cases. I would like to say to the noble Earl, Lord Russell, that, at present we are consulting with those in relation to the specific cases. There is no date as far as I am aware in relation to the outcome. The Government have been made aware that a number of organisations have stated that they have details of cases in which it appears that contact has been ordered and where there has been a history of violence and a child has subsequently been harmed or even killed. We are working with these agencies to identify the cases concerned, to investigate whether or not these allegations are substantiated and, if so, what we can learn from the future. I cannot give the noble 338GC Earl a timescale in relation to that, but if and when I am able to I will certainly communicate with him about that issue.
A point was raised by several Members of the Committee and in particular the noble Baroness, Lady Noakes, on the enforcement of contact and what we do with it. Enforcement of contact is a very sensitive area. CASC (the Children Act Sub-Committee of the Advisory Board on the Family Law) is chaired by Mr Justice Ward, who is a member of the Family Division and has a specific expertise in this area. The report Making Contact Work, published on 8th February 2002, contains a large number of detailed recommendations, and the Government need to consider and will consider those very carefully.
The most important thing for us to do is to get this right. There are no quick fixes in this area. If we have learnt one thing by looking at the past 50 years, we know that. We must put children first, as Members of the Committee have said, and we must ensure that contact is safe. The Government are carefully considering the recommendations in the report and will publish a response in due course.
The New Zealand model has been much vaunted in this debate. Not surprisingly, the New Zealand situation is slightly different from our own; namely, the New Zealand model has a general presumption in favour of contact. New Zealand has therefore legislated to provide a rebuttal of that presumption; that the courts shall not make an order for contact or residence in favour of a violent parent, unless it is satisfied that the child will be safe.
We have no such presumption in favour. All we have, which we would suggest to noble Lords is a better way forward, is that the welfare of the child is to be the final determinant of what we do or do not do. Members of the Committee will know that we have to make those judgments on a case-by-case basis. What is good for child A may not be good for child B, and the court has to fashion and craft a solution which best fits the needs of that child in that family at that time. 'That is difficult to legislate in a confined way. We believe that the welfare of the child is the best test as opposed to having a presumption for or a presumption against. As the noble Earl, Lord Russell, said, the child is not a chattel. One does not receive the child as a gift; one is not refused contact as a punishment—the child has its own right to have contact if that inures to the child's benefit.
Amendments Nos. 107ZA and 107ZB deal with the extremely important issue of protecting children from harm in the context of private law Children Act proceedings. As many Members of the Committee will know, private law proceedings under Section 8 of the Children Act 1989 are between individuals, often following separation or divorce, and include settling the arrangements for where a child lives or with whom a child has contact.
This is an area in which the Government have already shown that we have listened to stakeholders and Members in another place in order to improve protection for children. I thank my noble friend Lady 339GC Thornton for the complimentary remarks that she made about that. During the passage of this Bill in the other place the Government tabled two amendments which were accepted on Report. The first, included as Clause 116 of your Lordships' version of the Bill, amends the Children Act to clarify the definition of harm in the Act to make clear that harm includes any harm a child may suffer or is at risk of suffering as a result of witnessing the ill-treatment of another person.
I can reassure Members of the Committee that the current definition of harm in the Children Act already includes direct harm, violence to or abuse of a child. This amended definition of harm builds on that to put beyond doubt the fact that it also includes harm sustained by indirect means, by witnessing either domestic violence or violence which may not be domestic but which may nevertheless have affected the child, for example because he or she has seen a parent continually involved in brawls or intimidating neighbours or others.
The Government's second amendment to Clause 1(4)(e) applied the same definition of harm to proceedings under the Adoption and Children Bill. At present a court, when deciding whether or not to grant contact between a parent and child, is under a duty to have regard to the welfare checklist in the Children Act. This includes whether a child has suffered or is at risk of suffering any harm.
During the Special Standing Committee in the other place, a number of children's charities and organisations representing the victims of violence expressed concern that not enough account was being taken of the impact on children of domestic violence. Clause 116 therefore makes absolutely clear that when a court is deciding whether or not to grant contact between a parent and a child, the court will be obliged to decide whether domestic violence has taken place and, if so, its present and possible future impact on the child.
Amendment No. 107ZA, tabled by my noble friend Lady Thornton, would impose a requirement on the court to determine whether an allegation of ill-treatment on the child or on another person is proved as soon as practicable. Such a requirement already exists in Section 1(2) of the Children Act and is also addressed by the guidelines on parental contact with children where there is domestic violence produced by the Children Act sub-committee of the Lord Chancellor's advisory board on family law. The guidelines provide direction to courts and CAFCASS officers on the key considerations when dealing with contact cases in which allegations of domestic violence have been made. The guidelines are for courts and CAFCASS and all those involved in contact cases where domestic violence is an issue.
Guideline 1.5 stresses the importance of the court making a finding of fact as to whether domestic violence has occurred and, if so, the impact on the child. The court will then need to consider whether any contact ordered must be subject to conditions, for example, that it should be supervised.
340GC The guidelines have been partially incorporated into case law through the court of Court of Appeal case of In Re L and others, in June 2000. The guidelines have been distributed and are being incorporated into judicial training and evaluated through monitoring and research.
In endorsing the guidelines on 6th March, the Government undertook to carry out regular surveys to gauge their usage and effectiveness. The first survey on the use and effectiveness of guidelines was carried out last November. An analysis was laid in Parliament on 13th March 2002. I know that the noble Earl, Lord Russell, looked at that research.
That was a very important opportunity for us as it gave some very useful information. It indicated that use and awareness of the guidelines was patchy, which was an important thing for us to know. We are working with all those in the family justice system to ensure that the guidelines are brought to as wide an audience as possible—for example, through exercises such as the launch, on 7th March 2002, of the Law Society's family law protocol, and as part of the Government's work to tighten up the court rules in this area—and to ensure consistency of practice both in terms of findings of fact and of conditions to ensure safety.
The Government are seeking to address many of the criticisms that the noble Earl, Lord Russell raised. For example, in partnership with the President of the Family Division, and with other stakeholder groups such as the WAFE and the NSPCC, we are reviewing 1.3 of the guidelines, which deals with the findings of fact. We are also working in partnership with the voluntary sector to develop a national network for child contact centres.
Moreover, a second survey on the guidelines is currently under way. I can tell the Committee that we are already getting much more positive messages in the second survey than we did in the first. So the guidelines seem to be seeping their way through the system. As I have outlined, the main findings of the survey are that, where the guidelines are being used, they are judged as being effective. However, distribution of the guidelines has not been as thorough as the Government would like.
The judiciary and the legal profession, and organisations representing children and victims of violence, are currently been consulted on amendments to the Family Proceedings Rules 1991 which would strengthen the court rules to give additional force to the guidelines. This would give greater flexibility to add to, or amend, the obligation on the court. Subsection (2) of this amendment labels the person who has inflicted ill treatment on a child, or another person, as an abusive party, and then seeks to preclude the court from making an order for residence, or unsupervised contact, in favour of an abusive party unless the court is satisfied that the child will be safe.
The Children Act is already underpinned by the fundamental principle that the welfare of the child is paramount, and presumptions which gloss or interfere with this will simply create confusion. There is no 341GC presumption in primary legislation in favour or against contact, and the welfare principle guides the courts in the individual case. I see no reason to undermine or amend this fundamental principle.
The amendment also specifies that the court shall not make an order for residence or contact in favour of a n abusive party unless the court is satisfied that the child will be safe. This is the obligation already imposed by the Children Act. Section 1(3) of the Act requires the court to consider not only the harm a child has suffered, but the harm that he is at risk of suffering before it makes an order for contact or residence. The court has the power under Section 11(3) of the Children Act to attach conditions to orders, such as that the contact should be supervised. In addition, it would make orders for the protection of a child or a parent even if no application had been made, such as the non-molestation order.
Subsection (3) of the amendment states that where in Section 8 of the Children Act proceedings a court is unable to determine whether an allegation is proved, but the court is satisfied that there was a risk of harm, the court is permitted to make an order under the Children Act 1989 when that is considered necessary to protect the child. Again, this provision is unnecessary as Section 1 of the Children Act already mandates the courts to consider the range of powers available to them under the Act.
I turn to Amendment No. 107ZB, tabled by the noble Earl, Lord Russell. This amendment would require a court to have regard to a checklist whenever it is determining whether a child would be safe if contact or residence is granted. As I said earlier, when deciding whether to grant contact between a parent and a child, or to make a residence order, the court is already under a duty to have regard to the welfare checklist in the Children Act, which includes whether a child has suffered or is at risk of suffering any harm. The Children Act makes the welfare of the child the court's paramount concern.
This amendment seeks to set out criteria which the court is required to consider whenever allegations of ill treatment are made in an application for a contact or residence order. While I understand the principle of what is proposed, the fact is that the Children Act 1989 already provides the court with the statutory powers it needs to protect children at risk.
The Government understand all these concerns. As I am conscious of the time, I should like to state a shortened version of our position. We understand the concerns of noble Lords and what they are trying to achieve. The short answer is that all those concerns are already covered in current legislation and in the guidance provided by the rules. What the Committee is really exercised about is not so much the law—the Sections—hut how it is practised, how it is exercised and the exercise of judicial discretion. To speak boldly, if we amended the law exactly as the Committee would like—reiterating what is already there in statute—one would have to ask: how would that change in practice what is happening on the ground?
342GC Bearing in mind that we already have the necessary provisions on the statute book, what is important is to improve the practice. Thus, the steps that we have taken are to ensure that every judge, every magistrate and every person who will have to exercise this discretion will have the appropriate training to enable him to discharge his duty responsibly, so that there is joined-up working between the agencies to create an appropriate safety net for the children. Those are what are going to make the real difference.
I do not decry for a moment the impulse that causes noble Lords to seek to make these amendments. However, if we studied them line by line, which I would be very happy to do, we would find that almost everything that noble Lords seek is already enshrined in legislation.
I can certainly empathise with the concerns expressed. We shall look into the important issues raised by noble Lords. We shall look as creatively as we can at how better to enhance practice. However, if everyone was doing that which the statute currently exhorts, then many of the concerns that we have today expressed would not have had to be expressed as they would already be covered.
I can certainly reassure the Committee, therefore, that both the Department of Health and the Lord Chancellor's Department take these matters extremely seriously. We shall take every opportunity to ensure that the safety of children is not only preserved but greatly enhanced.
§ 7.45 p.m.
§ The Earl of Listowel
On a point of clarification, as I understand it, one of the reasons why the noble Baroness, Lady Scotland, is unwilling to accept the proposed amendments is that she wants to look at the welfare needs of the child in each case and respond appropriately to those welfare needs. If I have understood the noble Baroness correctly, she does not wish to believe that this mechanism is too awkward to achieve that aim. I shall give her an opportunity to correct me in a moment.
There is a great deal of concern about the specific instance in which a mother is in threat of being put in prison for not allowing contact with her child. I should be grateful to the Minister if she could give some further guidance in that area as to what she would expect the courts to do in that situation. In such circumstances, would the noble Baroness expect a guardian to be appointed and a solicitor to be called in for the child so that the interests of the child were made very clear? I suppose it is a question of the good practice about which the noble Baroness was speaking earlier. However, it would be most helpful if she could offer some further information at this point.
§ Baroness Scotland of Asthal
I was hoping to make clear, first, that the guiding principle for our court is what is in the best interests of the child; in other words, the welfare of the child. That will take into account a multiplicity of issues—for example, the harm that might be caused to a child, the risk of harm, the child's views, and the conditions in which the child may be 343GC looked after either by the mother or the father. These are all issues that the court has to balance as regards what is in the overall best interests of the child. It has to consider whether contact will be possible, and whether it can be undertaken safely.
What I am saying is that one cannot have a presumption in favour of one or a presumption in favour of the other, because these are matters which the court will have to weigh on a case-by-case basis. There is already opportunity, if the court deems it appropriate, to have a CAFCASS officer report. The CAFCASS officer, in exercising his or her duty, will not only have to take into account what the child has to say but will also have to consider whether this is an appropriate case for the child to be separately represented, bearing in mind the child's age, maturity, and the other circumstances. So all of those issues will be balanced.
That imposes a duty on the CAFCASS officer. All the issues in relation to the importance of domestic violence, as well as those that have been raised in Committee about the possible consequences for the child, are issues that the CAFCASS officer should take into account before and during making the report. Therefore, when the report is presented to the court, it will outline the circumstances that the CAFCASS officer found to be proven—the circumstances regarding the mother's home and the father's home, what the child said when interviewed, what his or her feelings and views were—and an expression as to whether the child should or should not be separately represented.
On reading a CAFCASS officer's report, it is always possible for the court to say, of its own volition, "We think that this is a case that would merit some form of other intervention"—that is to say, one that would merit legal representation, or separate representation, for the child. This is an interactive process. The court is not just simply a repository for the information that the CAFCASS officer gives. If something in that report needs further interrogation, the court has an opportunity to ask for that further interrogation to take place, and/or to ask for the child to be separately represented as the need arises.
It has to be the appropriate case, because many private law cases do not involve abuse of the children; they do not involve issues of this sort. Regrettably, however, a small percentage do and those cases cause acute difficulty and much anguish. On behalf of the members of the judiciary who do this work, I should point out that they take this very seriously. Members of the Committee should be left in no doubt about the distress that is occasioned when mistakes are made. For all those occasions when fathers or mothers behave in a wholly inappropriate and sometimes heinous way, one has to balance it against the thousands of cases that the same judge may have heard 344GC and made judicial decisions upon which have not had such an unhappy outcome. It is a difficult balance and it is a tragedy when that balance goes wrong.
§ Baroness Thornton
At the outset I thank the Minister for the enormously thoughtful and detailed way she has responded to this amendment. I am very grateful indeed for everything she said and the detail in which she has chosen to approach the different issues that have been raised during the debate. Indeed, the debate, although taken at the tail end of the Committee, has done credit to the issue about which we feel so strongly.
I want to make only one or two brief comments. I have written down a few issues which cause me concern and we shall probably need to pursue them at a later stage. One is about the balance referred to by my noble friend. We do not believe that the balance is right, and that is why these amendments have been tabled and why we want to have this discussion with the Government. We believe the balance is not right because case law is not helping to resolve these issues in the courts. Furthermore, as the Minister explained, the guidelines are not being followed in a thorough and a proper fashion throughout.
The second issue relates to guidelines. At present, those of us who are concerned about this very important issue believe that the guidelines are not sufficient in themselves because they are guidelines. That is the other issue we may well need to follow up.
My final point relates to a word used by the Minister; she spoke of the guidelines "seeping" through the system. That is not an adequate or satisfactory expression for what is such an important issue, because children's lives are at risk here and. indeed, may have been lost.
The Minister placed great emphasis on the guidelines and I have looked at them and at their monitoring. However, they are not doing their job. It is not because they are inadequate—they are very good but could probably be improved—but because they are not being implemented. That is the problem and that is the crux of what we will need to return to, but I am grateful to everyone who took part in the debate, not least the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 107ZB not moved.]
§ Clause 111 agreed to.
§ Baroness Andrews
This would seem an appropriate moment to move the adjournment of the Committee until 4 p.m. on Thursday.
§ The Deputy Chairman of Committees (Lord Lyell)
The Committee stands adjourned until Thursday at four o'clock.
The Committee adjourned at eight minutes before eight o'clock.