Adoption and Children Bill

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Mr. Walter: I beg to move amendment No. 164, in page 46, line 6, leave out from beginning to first '''regulations''' in line 7.

It is me again. I explained that earlier amendments were intended to remove the possibility of distress and heartache to those who had adopted children or those who had been adopted. Clause 83(2) and the definition it contains cause me concern. It states:

    '''Children' includes persons who were children at the time the adoption was applied for''.

That strikes me as an attempt to make law retrospective. Subsection (2) begins:

    ''The description specified by the order must be a description of adoptions of children which—

    (a) appear to the Secretary of State to be effected under the law of any country or territory outside the British Islands,

    (b) are not Convention adoptions, and

    (c) meet any requirements prescribed by regulations made by the Secretary of State.''

The whole provision is intended to provide definitions.

If, in defining a child over whom some legal jurisdiction is to be brought about under the clause, we say that a person is a child if it was a child when the

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adoption was applied for, there might be certain consequences. A child might have been legally adopted after all the relevant procedures were completed, but something might subsequently—after the child had become an adult—be found to have been wrong in the adoption procedure. The court could make a retrospective order under the clause, which could lead to great pain and suffering for the adoptive parents and the child.

If we are to apply the definition to someone who has long since ceased to be a child but who was at the time of the action in question defined as a child, we are on the road to a definition that can bring nothing but pain and suffering to human beings who, in earlier years, have probably been through a traumatic and distressing time. The Bill should define children as the word is commonly understood. It should not redefine it for the purposes for which regulations might be made as though a child was something else—someone who has ceased to be a child but just happens to have been a child at the time when the adoption order was applied for.

The amendment is another attempt to tidy up the Bill for the benefit of those for whom we are legislating. We should not give lawyers or others the opportunity to go back and dig up information that could cause unnecessary pain and suffering.

Jacqui Smith: Clause 83 allows the Government to put in place arrangements for recognition in the United Kingdom of adoption orders made overseas. It permits the Secretary of State to make an order specifying the adoption orders to be recognised while protecting the status of those adopted in the past from countries on the old designated list. The clause also allows the Secretary of State to make regulations setting out the criteria that must be met by procedures in an overseas country if it is to be included in the list of overseas adoptions to be recognised. The clause allows us to review the list of countries whose adoption orders we recognise, and it allows us to protect the status of those adopted—[Interruption.] I can tell that I have the Committee's absolute attention and that, despite the sounding of the fire alarm, hon. Members are concentrating extremely hard. I shall plough on.

The clause allows us to protect the status of those adopted under the current designated list while we review which countries' orders we should recognise in future. It also allows the Secretary of State to set out in regulations the criteria that must be met by a country's system if it is to be included in the order.

Subsection (2), to which the amendment refers, clearly states that adoption orders can be recognised only when they have been made in respect of a child. The clause provides a definition of children that includes persons who were children when the adoption was applied for to ensure that overseas adoption orders can be recognised if proceedings were started prior to the age of 18 but the adoption order was not made until the child had reached 18.

The hon. Gentleman's concern that the provision might enable decisions to be made retrospectively is misplaced. Rather, the clause makes the recognition of

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overseas adoption orders consistent with our practice on the making of domestic adoption orders. Clause 47(5) makes clear that in domestic adoptions

    ''References . . . to a child, in connection with any proceedings . . . for adoption . . . include a person who has attained the age of 18 years before the proceedings are concluded.''

That is because, although it is important to ensure that applications are made prior to the child reaching adulthood, the court's discretion to carry out checks and schedule hearings should not be fettered by the child's age, nor should a child's best interests be overruled simply because his or her 18th birthday arrives before the proceedings are concluded.

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The hon. Gentleman wants to remove the existing definition of children to prevent heartache and difficulties. If the amendment were accepted, the general definition of children in clause 129, which recognises a child as a person who is under 18, would apply. That would remove our ability to recognise an overseas adoption order that was made after the child turned 18 where the application and proceedings had started before they reached that age. That would be inconsistent with current domestic arrangements and is, therefore, unlikely to be in the child's best interests. Not only is the amendment unnecessary, but it might be detrimental to children's interests. I hope, therefore, that the hon. Gentleman will withdraw it.

Mr. Walter: I hear what the Minister says, although I hope that she will forgive me if I was not paying full attention when the fire alarm sounded. She referred to clause 129, which states that

    '''child', except where used to express a relationship, means a person who has not attained the age of 18 years''.

The definition of children in clause 83 includes those who were children when adoption was applied for. If my understanding is correct, the Minister is suggesting that it means a better deal for those—I hesitate to use the word ''children''—who are adopted abroad in cases where the adoption procedures are not completed by the time they turn 18. I acknowledge the validity of that point, but I am concerned about the fact that the legal niceties of an adoption procedure that is started in this country or abroad may not be completed before the child reaches the age of 18: in such cases, the child would have reached adulthood and would not in normal circumstances qualify for adoption. That would be relevant to inheritance law, which may require the procedures to be completed even if the child has already reached adulthood.

Let me try to explain why I am still perplexed by one point, although I shall go away and think about it. To turn the clause on its head, people could undermine an adoption, saying, ''We can still challenge this overseas adoption and the procedures in this overseas adoption because the child is older than 18.'' Although the child considered himself adopted, lived with his adopted parents and felt that they were now his family to all intents and purposes, some mischievous person could take a retrospective approach, saying that the child had only just reached the age of 18 and that something was wrong when he was 16 or 17 when the procedure

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began. A legitimate adoption could therefore be challenged after the child reached adulthood, which was why I tabled the amendment.

The Minister's explanation of the drafting of the clause and the purposes it serves are acceptable. My only objection is that another person might try to use the definition of children retrospectively to undermine the legitimacy of an adoption on the grounds of something that took place when the child was a child and had to all intents and purposes been adopted, although all the legal niceties had not been completed because it was an overseas adoption. I would not want us to make a law under which a child might find his adoption undermined if all the legal niceties had not been completed. I remain concerned about the use of the definition in other circumstances, because a child who had reached adulthood might feel that his adoption had been undermined, even though it was perfectly legal in his mind and in the minds of the adoptive parents.

Jacqui Smith: The hon. Gentleman appears to be concerned about the ability under the clause—and, presumably, under the corresponding subsection in clause 47, which puts the same definition on the recognition of an adoption order—for someone to undermine an adoption order made in the relevant circumstances. I am not entirely clear whether that is his objection.

The circumstances that we are discussing are those in which an adoption order is recognised as such. We should allow for circumstances in which the application to adopt starts before the child reaches the age of 18 but is not concluded by the time he reaches 18 and the order is made after his 18th birthday. If we do not define the recognition of an adoption order in the way proposed in the clause for intercountry adoption and in clause 47 for domestic adoption, we risk creating a situation in which, for what might be seen as the arbitrary reason that the child had reached 18—even though all the correct procedures had been followed and the adoption order made—it would be impossible for the adoption order to be recognised, with, as the hon. Gentleman mentioned, all the status implications that that would have for the adopted person.

The Chairman: I am sure that the hon. Gentleman will find that helpful.

Mr. Walter: The Minister is right to allude to the principal positive reason for including the wording, which relates to the status of the child or adult and is relevant to such issues as inheritance. I am concerned—the Minister alluded to this and referred me to other clauses, such as clause 47, which I am not sure we have considered—that the definition of ''children'' may include someone who has attained the age of 18 and to whom the procedures previously applied but were not concluded. That is fine if the definition is regarded in a positive sense, but I am

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concerned that a court, a clever lawyer or someone wishing to cause mischief might regard the wording in a negative sense.

The Minister appears to be amused. I hope that she does not feel that I was trying to cause mischief; I am not. I am trying to ensure that the sense of the clause will not cause any heartache, pain or suffering as a result of someone interpreting it to mean that if an adoption procedure had been undertaken but not technically completed before a child reached 18, the adoption may be open to challenge. That is worrying if one considers the definition from a negative standpoint. I hope that lawyers and others who try to ascertain the meaning of the definition will read the record of our proceedings to understand what we meant by inserting a definition that states:

    '''Children' includes persons who were children at the time the adoption was applied for''.

The definition is meant in the positive sense in which the Minister has expressed it and not in the negative sense that has caused me some concern. Having made my point, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 ordered to stand part of the Bill.

Clause 84

Modification of section 64 for convention adoptions

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