Special Standing Committee
Thursday 6 December 2001
[Mr. Jimmy Hood in the Chair]
The Chairman: At its sitting on Tuesday afternoon, the Committee had completed consideration of clause 105. Under the programme resolution, the next item to be considered is clause 63, to which no amendments have been tabled.
Clause 63 ordered to stand part of the Bill.
Status conferred by adoption
Mr. Henry Bellingham (North-West Norfolk): I beg to move amendment No. 97, in page 36, line 24, leave out
'as if the person had been born'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 126, in page 36, line 24, leave out 'had been born as' and insert 'was'.
No. 127, in page 36, line 28, leave out 'had been born as' and insert 'was'.
No. 128, in page 36, line 31, leave out 'had been' and insert 'was'.
Mr. Bellingham: Amendment No. 97 was tabled by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton); the other amendments are in my name. I ask the Parliamentary Secretary to consider the wording of subsection (1)(a). It uses the phrase
that is the adopted child
''had been born as a child of the marriage''.
The phrase is used again in paragraph (b). I find that slightly insulting. I would be grateful if the Government were to reflect on that terminology, because it will be particularly upsetting to birth mothers. We have spent much time debating the question of birth mothers, and the answer seems very simple: only the birth mother can give birth to the adoptee. Children cannot be ''as if born to''; they are ''born of'' someone. It is not good drafting, and I see no advantage in it. I accept that there may be complicated legal reasons for using that turn of phrase, but I would be grateful if the Parliamentary Secretary gave us an explanation.
Under clause 68, we shall debate the question of adopted children inheriting titles; that provision would make the phrase in clause 64(1) incongruous. Furthermore, we should consider single people who adopt. We had an interesting debate about that subject only last week. The phrase
''as if the person had been born as a child of the marriage''
will attract substantial ridicule if it means single people having to pretend that they are married to a non-existent person in order to be seen as the parent of an adoptee. I feel strongly about this. We have debated adoption by single people and by single people with partners, yet the Bill talks specifically of marriage and uses the phrase ''as if born to''.
My submission is simple: we need to remove the phrase. The Bill should be amended in the manner suggested. I would be grateful to hear the Parliamentary Secretary's comments. I hope that she will agree that we could word the clause a great deal more appropriately. We could prevent it from attracting ridicule and insulting birth mothers and single people.
Mr. Hilton Dawson (Lancaster and Wyre): The hon. Member for North-West Norfolk (Mr. Bellingham) makes a sensible point. I can only assume that the wording in the clause is the manifestation of a technical problem. The words
''as if the person had been born as a child of the marriage''
invite fiction, but everything that we have done so far has been about encouraging clarity, good information and honesty in relationships. Adoption is not about pretending that someone was born as a child of the marriage, but about people taking parental responsibility for a child and looking after him to the best of their abilityas though he were one of their children.
I cannot imagine that the amendment will cause huge dissent. I can only think that the Parliamentary Secretary will say that a difficult technical problem prevents us from sensibly rearranging the wording of the clause. I agree with the hon. Gentleman, and I hope that we can change the wording.
Tim Loughton (East Worthing and Shoreham): I apologise for being slightly late, and I welcome you to the Chair, Mr. Hood.
I want briefly to reiterate the words of my hon. Friend the Member for North-West Norfolk. It would be common sense and a courtesy to those involved in adoption for us not to continue with the fiction of changing the birth details of those who are adopted by new adoptive parents. The Parliamentary Secretary will no doubt tell us that the wording must take its present form to reflect the drafting of earlier legislation or other aspects of the law. If so, it is time that we changed the law in general. It is no excuse to say that we must perpetuate provisions such as that in paragraph (a), which is patently an anachronism. I hope that we shall continue the successful trend of getting the Government to see sense and respond favourably to Opposition amendments.
Mr. Julian Brazier (Canterbury): I, too, welcome you to the Chair, Mr. Hood.
We do not want to spend a lot of time on a small drafting point. None the less, my hon. Friend the Member for North-West Norfolk made an eloquent case for improving it. I am grateful for the support of the hon. Member for Lancaster and Wyre (Mr. Dawson).
I want to add one small parallel. My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) expressed concern about other pieces of legislation being used to justify the wording of the clause, and I suspect that the Parliamentary Secretary will touch on that. A similar justification was employed for about a generation for the use of the word ''defective'' to describe people with learning difficulties. That phrase was grossly offensive. The wording in the clause is not as offensive, but it is unnecessary, as my hon. Friend the Member for North-West Norfolk said. It is a little piece of fiction that we could do without. I look forward to the Parliamentary Secretary replying constructively.
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I welcome you to the Chair, Mr. Hood. It is a delight to see you.
In a spirit of co-operation, I should say that the Government have some sympathy with the spirit of the amendments. There is obviously concern on both sides of the Committee.
The clause will determine the status of an adopted child, so that it is clear how he will be treated in law. That is consistent with the general principle of chapter 4, which is that a child ceases in law to be a member of his birth family and becomes a member of his adoptive family on the making of an adoption order. When a married couple adopts a child, he is to be treated in legal terms as though he had been born as a child of the marriage of that couple. When a child is adopted by a step-parent, he is to be treated in law as though he had been born as a child of the marriage of the step-parent and the parent to whom that person is married.
The hon. Member for North-West Norfolk asked about single people. When a child is adopted by a single person, he is to be treated in law as though he had been born to that person in marriage, but not as the child of any actual marriage of the adopter. The provisions of chapter 4 provide for how an adopted child is to be treated in law for purposes of inheritance, pensions and insurance. They do not touch on the biological or emotional ties of an adopted childnor are they intended to do so.
Adopted children have always been regarded as legitimate. The declaration in section 39 of the Adoption Act 1976 that an adopted child is not illegitimate will not be re-enacted by the clause. The relevant provision of the clause is drafted to ensure that an adopted child is not treated in law as illegitimate. It is therefore implicit from the other provisions of the clause that that is the case.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): I raised an issue with the Minister of State, Department of Health, the hon. Member for Redditch (Jacqui Smith), and I am still waiting for a reply, so I shall ask the Parliamentary Secretary about it.
Imagine that adopter A adopts child B and lives with co-habitee C. Adopter A leaves a will in favour of her partner, C, and dies. If C died intestate soon after, would I be right in thinking that the child would not have any inheritance? I am not trying to trip up the Parliamentary Secretary, as that would not be right, and I do not expect a reply now. If I am wrong, I will stand corrected.
Ms Winterton: I thank the hon. Gentleman for the question, to which I understand that my hon. Friend the Minister will reply.
I understand the concern about the wording of the provisions and the idea that the Bill creates the fiction that the child was born to the adopters, almost airbrushing the birth parents out of the adopted child's life. Some people have understood the provision to imply almost that a child's emotional ties with his or her birth parents can be severed, along with legal ones. I assure all members of the Committee that the Government have no wish to cause distress either to birth parents or adopted children. The clause is essential to protect the rights of adopted children.
The hon. Member for North-West Norfolk has clearly put considerable effort into drafting his amendments to try to ensure that the relevant legal status remains, but they are defective. Although they would provide for a child to be regarded as a child of the marriageas legitimatethe omission of the word ''born'' would mean that the child could not be regarded as the natural child of one or both parents. Being a natural child matters in legal terms, in respect of inheritance, parental rights and responsibilities. For example, being regarded as the natural child is the key to an adoptive child's right to inherit under intestacy law. That might be relevant to the point that the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made.
The Government undertook during evidence-taking sittings to re-examine the wording of the clause, to see whether we could improve on it. I assure hon. Members that we have tried to find an alternative but have so far been unsuccessful. The technical deficiencies in the amendments mean that we cannot accept them. We are quite prepared to continue to search for a more acceptable wording, but I am not very optimistic about the prospects of finding such wording. We must ensure that the adopted child is legally protected. I stress that our stance is not an attempt to offend birth parents. However, despite trying hard, we have not been able to arrive at a better wording.
I hope that, in view of our intention to continue to consider the matter, the hon. Member for North-West Norfolk will feel able to withdraw the amendment.