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Special Standing Committee
Tuesday 11 December 2001
(Morning)
[Mr. George Stevenson in the Chair]
Clause 81
Giving parental responsibility prior to adoption abroad
10.30 am
Mr. Robert Walter (North Dorset): I beg to move amendment No. 161, in page 44, line 27, leave out 'at all times'.
The clause is one of several that deal with intercountry adoption, a subject in which I have taken an interest for some years. Not only was I a Front-Bencher when the House debated the Children's Commissioner for Wales Act 2001, which legislation had some relevance to intercountry adoptions, but I have some personal experience of those who have—not without considerable heartache—gone through the procedure.
It is with such heartache in mind that I move the amendment. Clause 81(4) states:
''An application for an order under this section may not be made unless at all times during the preceding 10 weeks the child's home was with the applicant or, in the case of an application by a married couple, both of them.''
That phrasing is overly prescriptive and pedantic. I can see the basic idea behind the provision, which is that the child should know the prospective adopters and should have spent some 10 weeks in their home. The problem is the phrase ''at all times''. I have looked through the Hague convention and cannot find in it anything that is so prescriptive.
I put it to the Committee that if a legal challenge or contest were mounted, a clever lawyer might be able to scupper a perfectly legitimate adoption on the ground that, for example, the child had visited another relative during the qualifying period. We must at all times remember that some people's motives may not always be to further the best interests of the child and that they might seek to undermine an adoption procedure by arguing that, in the strict legal sense, the child had not ''at all times'' during those 10 weeks been with the applicant—or applicants: if the application is made by a married couple, the child should have been with ''both of them''. I foresee lawyers getting out notebooks and asking people whether they were together ''at all times'' with the child during the qualifying period.
The words ''at all times'' are superfluous to the basic thrust of the clause, which is headed ''Giving parental responsibility prior to adoption abroad''. The Committee should consider deleting those three little words because of the pain and grief they might cause to prospective adopters or to a child who feels that its
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home has been with the applicant or applicants for the preceding 10 weeks only to be told that, in fact, it has not been with them ''at all times'' because it has been away for a couple of days.
The amendment is common sense. The clause is pedantic and overly prescriptive and the words ''at all times'' should be deleted.
The Minister of State, Department of Health (Jacqui Smith): Welcome back to the Committee, Mr. Stevenson.
We are continuing our consideration of the clauses that deal with intercountry adoption. Clause 81 allows the High Court to make an order to transfer parental responsibility for a child to prospective adopters prior to adoption overseas. It replaces section 55 of the Adoption Act 1976. Although it is likely to be used only rarely, it is intended to allow a child from the United Kingdom to be adopted overseas if a court agrees that that is in the child's best interests. It may be used to allow prospective adopters from a Hague convention country to adopt a looked-after child who is assessed to be suitable for overseas adoption in that country. It could also be used when children can no longer live with their birth parents and their best interests are served by adoption by godparents, distant relatives or others who are significant to them and who live outside the British islands.
We must ensure that safeguards are in place and that the provision is not abused or used as a shortcut by those who should go through the usual adoption procedures. An order cannot be made under the clause if the prospective adopters meet domicile or habitual residence requirements that would allow an adoption order to be made in England and Wales. In other words, an order cannot be made if prospective adopters currently live in this country.
Consistent with the rules on adoption—to respond to the points made by the hon. Member for North Dorset (Mr. Walter)—the child must have had his home with the prospective adopters for a minimum of 10 weeks prior to the order being applied for; the prospective adopters must also meet any other requirements that are prescribed in regulations. The amendment would remove the phrase ''at all times'' from the requirement that the child should have had its home with the prospective adopters for the preceding 10 weeks. I understand that the hon. Gentleman intends to add clarity, but the amendment would remove clarity from the residency requirements and might thus put children at risk.
Giving the child time to live with the prospective adopters before the order is made will allow a relationship to be built up between child and adults. If the order is made, the child will be taken from familiar surroundings to an entirely new country and culture, so it is important to ensure that the child has the opportunity to form a bond with the prospective adopters and that it accepts the impending move. It is also important that the court is able to satisfy itself that making an order giving all parental responsibility to the prospective adopters is in the child's best interests. That can be done only if it has been possible to observe
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the child and the prospective adopters together and confirm that the adults will be able to meet the child's needs.
The phrase ''at all times'' makes it clear that the child should have had his home with the prospective adopters for the previous 10 weeks. That means not that they should have spent 24 hours a day, seven days a week together, but that the child should have been living with the prospective adopters for a full 10 weeks, spending time with them and doing the things that a child would normally do at home, such as eating, sleeping and playing.
Mr. Walter: I thank the Minister for her interpretation of ''at all times'', but my concern is about how a court might interpret the phrase. Elsewhere in the Bill, the term ''habitually'' is used. Is that not better than ''at all times''?
Jacqui Smith: The hon. Gentleman, rightly, raises the issue of consistency and refers to other places in the Bill in which ''habitually'' is used. However, the use of ''at all times'' is consistent with section 13 of the 1976 Act, which requires the child to have had his home with the adopters at all times. Obviously, the meaning of the phrase will depend on the facts of the case, but it has not caused problems up to now, and the use of the phrase itself is not unprecedented.
I understand the hon. Gentleman's concerns, but can only reiterate that we believe that removing the phrase would remove some clarity and might cause disputes about how much of the preceding 10 weeks a child needs to have lived with prospective adopters and when a home is really a home. Casting doubt on those matters would open a loophole that might be exploited and would not be in the child's best interests. I hope that I have allayed his concerns by explaining the interpretation of the phrase and the extent to which it is consistent with other legislation, and that he will feel able to withdraw his amendment.
Mr. Walter: I remain concerned. I suggested in my intervention that ''habitually'' might be better than ''at all times''. By deleting ''at all times'', I seek to avoid causing unnecessary suffering to the child or prospective adopters.
Jacqui Smith: Perhaps I can help the hon. Gentleman. We believe that ''habitually'' has a particular meaning that might not be established within 10 weeks. It tends to mean that more permanent ties have been established in relation to habitual residence, rather than that the people involved are simply living with each other. Ironically, therefore, ''habitually'' might impose a stronger or tighter restriction on the clause than the wording that the Government propose.
Mr. Walter: I thank the Minister for that intervention. I hope that family lawyers will read the Hansard of our proceedings for definitions of ''at all
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times'' and ''habitually''. In the knowledge that lawyers love to pore over such documents, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 ordered to stand part of the Bill.
Clause 82
Restriction on taking children out
10.45 am
Mr. Walter: I beg to move, amendment No. 162, in page 44, line 38, leave out subsection 1(a).
Having spent last week at the Parliamentary Assembly of the Western European Union, I have drawn the short straw this morning in terms of moving amendments. I am perturbed by the provision that the amendment would delete—a restriction on taking children out. Clause 82(1) refers to:
''A child who—
(a) is a Commonwealth citizen, or
(b) is habitually resident in the United Kingdom,''.
My concern focuses on (a). I thought that in making the new law, particularly in the clauses on intercountry adoption, we were making law for the United Kingdom, not for passing foreigners. To include children who are Commonwealth citizens and who by definition are not habitually resident in the United Kingdom, we are making law for passing foreigners. Why specify a Commonwealth citizen? Why not say a citizen of the European Union or some other definition of passing foreigner?
I looked at the Hague convention and found nothing to say that the provision was one that we should be making. In fact, the provision seems to be contrary to article 14 of the convention, headed ''Procedural requirements in intercountry adoption'', which states:
''Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.''
I thought that meant that the United Kingdom could not authorise the adoption of a child who was a citizen of another Commonwealth country or who was habitually resident in another Commonwealth country, unless by acting in contravention of the Hague convention. I do not imagine that it was the intention of the Minister or of those who drafted the Bill that we should contravene that convention.
The Bill contains a dog's breakfast of geographical restrictions; this is reflected in some of the Opposition amendments. It refers sometimes to ''the British Islands'', sometimes to England and Wales, sometimes to the United Kingdom—and sometimes I am confused about exactly what it means.
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