Adoption and Children Bill

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Mr. Walter: What has emerged from the debate is the fact that all of us on both sides of the argument are concerned about putting the primary interests and welfare of the child foremost. We must take into account the fact that this is a judgment that society is making on what is the most suitable environment for nurturing children who have been put into the care of local authority or put forward for adoption. Such children will not be in adoptive households by an accident of birth; they will be there because we have placed them there in their best interests.

I am very concerned about some of the implications of the amendments. Although I am not opposed to the basic thrust of hon. Members' comments, the consequences of some of the amendments concern me. Many hundreds of thousands of men and women living together across the country are not married but in stable family relationships. What concerns me most is that the amendments would enshrine the right of gay men to adopt. That may concern other members of the Committee.

I have no problem with adult homosexual men living together; I have many friends who live in such relationships. However, I do not believe that that is suitable to bring up a young child. This is not a homophobic response; consenting adults can do what they wish in private. We are concerned with the welfare of the child.

Sandra Gidley: I hope that the hon. Gentleman is going to elaborate on why he thinks that gay men are unacceptable, whereas gay women—whom he has not mentioned—might be acceptable. What is the difference as far as he is concerned?

Mr. Walter: The difference is that I am concerned, on child welfare grounds, about putting a child into a relationship of that nature. In terms of a family relationship, it would be totally alien, particularly to a young child. I was about to say that I have been consistent on this matter and that it was on such a basis that I voted against lowering the age of consent. I do not believe that we should be putting children at risk.

If I may, I should like to turn to the most important part of the matter. I have sympathy with the principal provision envisaged, which is to acknowledge that unmarried couples are already recognised in a vast array of legal arrangements, whether it be mortgages, tenancies, or whatever else. I could not support the amendments if they opened the way to homosexual couples adopting. I do not think that in law we can discriminate between male and female homosexual relationships, so if they are to be eligible to adopt, single-parent adoptions will have to be the only avenue to pursue. If the Minister were minded to think along the same lines, I would suggest that there is a formula that we could adopt.

There are six amendments in the group. I might be minded to support two, but not the other four because they remove the term ``spouse''. I should be interested in the Parliamentary Secretary, Lord Chancellor's Department intervening on me, as I have done a little research into this subject. I am grateful to the Library for providing me with much of my information about the legal definition of ``spouse''.

The first definition comes from ``Butterworth's'', which states that a spouse is a person who is married. However, if we look into statute law and a number of judgments in the House of Lords, we find that ``spouse'' covers both married and unmarried couples. A judgment in the House of Lords based on the Rent Act 1977, which was amended by schedule 4 of the Housing Act 1988, drew the distinction between a spouse in a male and female relationship, and a single sex relationship. That judgment, Fitzpatrick v. the Sterling Housing Association, said:

    ``The 1998 amendment extended the meaning to include as a `spouse' a person living with the original tenant''—

obviously this related to property law—

    `` `as his or her wife or husband'. This was obviously intended to include persons not legally husband and wife who lived as such without being married. That prima facie means a man and a woman, and the man must show that the woman was living with him as `his' wife; the woman that he was living with her as `her' husband. I do not think that Parliament as recently as 1988 intended that these words should be read as meaning `my same-sex partner' rather than specifically `my husband' or `my wife'.''

If the Minister were minded to keep references to spouse, rather than accepting the amendments, it would give us the opportunity to explore the question of unmarried couples—men and women living together in a stable family relationship. I have the greatest respect for the points that were made by my hon. Friend the Member for Canterbury (Mr. Brazier). He and I are supporters of the institution of marriage. We are both married.

Mr. Shaw: Not to each other, of course.

Mr. Walter: No, I intended no disrespect to our respective wives.

We have to accept the world as it is. There are hundreds and thousands of men and women across the country who are living together in stable family relationships. We would do a disservice to children if we ignored that fact.

Jacqui Smith: The clause provides that both single people and married couples can apply to adopt. Applications by married couples are subject to the age restriction in clause 48; applications by single people by the conditions in clause 49. Clause 47(2) provides that at least one of the applicants must be domiciled in the British Isles, and follows the 1976 Act. Alternatively, subsection (3) states that the applicant or both members of a married couple must

    ``have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application''.

The clause also provides that an application for adoption cannot be made unless the person to be adopted is under 18 at the date of the application.

The major debate concerning the amendments and the clause has been around the current legal position and the changes proposed by my hon. Friend the Member for Chatham and Aylesford in his amendments on the status of people who can adopt. Clause 47 does not change the legal conditions under which single people may adopt—regardless of sexual orientation—or change the fact that only married couples may adopt jointly. The hon. Member for Romsey argued that a child who had suffered sexual abuse might be best placed with a single woman. That is already possible, both under current legislation and in the Bill. I understand the circumstances in which she was suggesting that that might be appropriate.

As my right hon. Friend the Secretary of State said on Second Reading:

    ``Although we would not have introduced the legislation unless we believed that these were broadly the right proposals—that must be the case—we want to commit the Bill to a Special Standing Committee precisely so that we can invite views from outside the House.''—[Official Report, 29 October 2001; Vol. 373, c. 654.]

We have had a very useful and wide-ranging debate, both today and during the evidence hearings. Several witnesses and hon. Members have suggested that, where the relationship was stable and it was in the child's interests, an unmarried couple should be allowed to adopt jointly. That is clearly what has prompted my hon. Friend's amendments. The Government believe that, when considering joint adoption, what is important is stability and security for the child. I think that there is recognition across the Committee that that is crucial.

The adoption law review, when considering this issue, concluded that joint adoption should remain limited to married couples on the grounds that adoption by a married couple was more likely to provide the stability and security that the child needed because married couples have made a joint, publicly recognised, legal commitment to each other. In addition, marriage provides for mutual legal and financial obligations, and importantly in the event of divorce, the couple must be prepared to have plans for the future of their children scrutinised by the courts. There is no provision in law to protect the child's interests when unmarried couples separate.

4.45 pm

Mr. Llwyd: In circumstances where the child has been adopted by a person who co-habits with a person who is not subject to the order, the adoptive parent dies and shortly after the co-habitee dies, the child, who is outside the intestacy rules, would lose out utterly on any inheritance. That has to be a case for the application of human rights legislation. Will the Minister please take advice on that?

Jacqui Smith: If the hon. Gentleman wants me to, I will, although the natural parent of the child could have made provision through a will or there could be provisions for the appointment of a guardian. I am not quite sure why the hon. Gentleman suggests that that problem would relate particularly to an unmarried couple.

Mr. Llwyd: In the case to which I have referred, both have not made a will—many people do not bother—so they are both intestate. The adoptive parent dies and shortly after, the parent without the adoption order dies. The child would be without any form of inheritance.

Jacqui Smith: The hon. Gentleman is clearly concerned about that point, and I shall write to him about it.

The safeguards that I outlined have led the Government to believe that the security and stability that is needed for joint adoption is more likely to be provided by a suitably assessed married couple. However, as hon. Members will know—this point was made well by my hon. Friend the Member for Erewash (Liz Blackman)—a wider debate is under way about providing for the formalisation of the mutual obligations, rights and responsibilities for unmarried partners who do not wish to or cannot get married.

Indeed, the private Member's Bill of my hon. Friend the Member for Reading, East (Jane Griffiths) on that point was debated last Friday, and in response to her parliamentary question, my hon. Friend the Minister of State, Cabinet Office confirmed yesterday that the Government would examine thoroughly the many and complex issues of partnership registration. However, she said that it was premature to commit to any changes until a comprehensive analysis of the issues and their implications had been completed. I can confirm today that the exercise will include giving careful and detailed consideration to joint adoption by unmarried couples in the context of formal partnership registration. The evidence submitted to and heard by the Committee will be considerably helpful for that.

We believe that it is better to consider adoption by unmarried couples in the wider context of partnership registration than in isolation. That point was made by my hon. Friend the Member for Erewash. A registered partnership could provide the secure mutual obligations about which we are all concerned, and it is worth noting that the Netherlands—the leading example of a European country that has introduced the right for unmarried partners to adopt jointly—has done so with a partnership registration scheme. Some countries that have partnership registration schemes do not allow joint adoption by unmarried couples.

Adoption by unmarried couples would raise several complex legal questions about, for example, the legal definition and treatment of an unmarried couple. There is no standard definition of an unmarried couple who are living together in the same way as a married couple. Examples in primary legislation are not consistent. For example, the term ``co-habitee'' is generally used to refer to two people of the opposite sex who reside together as husband and wife. Section 62(1) of the Family Law Act 1996 defines ``cohabitants'' as

    ``a man and wife who, although not married to each other are living together as husband and wife''.

An unmarried couple in the Social Security Contributions and Benefits Act 1992 is defined as a man and woman who are not married but live together as husband and wife otherwise than in prescribed circumstances. There is no generally accepted legal definition of a same sex unmarried couple. To enable unmarried couples to adopt jointly, we would have to create a definition of an unmarried couple in the Bill. Given the current wider consideration, it would not be right to set a precedent in the Bill without the necessary consultation and thorough consideration. I hope that hon. Members will agree.

Hon. Members raised rightly the situation that pertains when a single person who has adopted a child co-habits and the partner gains, for example, a resident order. Hon. Members have used that as a reason to make the situation more straightforward. In that circumstance, although it may be possible through legislation to establish a legal relationship between each of the unmarried partners and the child, there would still be no legal relationship or mutual obligation between the two partners. That could lead to difficulties, which we must consider in detail. It would be difficult and inappropriate to deal with the other complex issues involved, such as nationality or inheritance—the treatment of adopted children of unmarried couples compared with the treatment of natural children—in isolation from the wider debate that I referred to.

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Prepared 29 November 2001