Adoption and Children Bill

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Mr. Bellingham: I beg to move amendment No. 177, in page 46, line 28, leave out subsection (3).

I shall not detain the Committee for more than a few moments because I am about to move an amendment to the Civil Defence (Grants) Bill in Committee Room 5. It has been a busy morning.

My amendment would remove subsection (3), which is completely superfluous. In the words of the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), it is ''otiose''. I believe in trying to keep things as simple as possible and I would be grateful if the Minister would carefully consider my proposal.

Jacqui Smith: I am extremely impressed by the multi-skilling that is being demonstrated by Conservative Members. It is a shame that when a party has relatively few Members, they must rush around from Room to Room, but the electorate is to blame for that.

Clause 84 provides for the modification of clause 64 for convention adoptions. It allows the High Court to direct that clause 64(2) should not apply or should apply only to the extent that it so directs. I shall give a little background to explain why the phraseology that the hon. Gentleman wants to remove is necessary.

Clause 64 provides that a child adopted in England and Wales is to be treated in law as not being the child of any person other than the adopters. The clause is necessary under the Hague convention because adoption law in the UK recognises only full adoptions, which sever all legal ties between birth parents and

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child and create a new and irrevocable legal relationship between the child and the adoptive parents. That is not the case in all countries. The clause allows any simple adoptions—adoptions that do not constitute a full legal transfer—to be treated in the UK as full adoptions. However, where any issue of status arises and the court considers that it would be more favourable to the interests of the child to treat the adoption as anything other than a full adoption, an application may be made to the High Court so that it may direct that the adoption should no longer be treated as a full adoption.

In some countries, not all adoptions are full adoptions including the severing of all ties with the birth parents. There are several reasons for that: for example, certain religious faiths do not allow children to be adopted in the way that we understand the term in the UK. In those cases, adoptions may take the form of entrustment or simple adoptions, which do not have the effect of severing all legal ties with the birth parents: they may take place in circumstances in which the birth parents want to have contact with the child and that is considered to be in the child's best interests.

Article 26 of the Hague convention provides for the recognition of both full and simple adoptions. Article 27 allows a receiving state to convert a simple adoption into a full adoption if its law so permits and provided that the birth parents and relevant parties under article 4 of the convention have given their consent to full adoption. Where the receiving state is England or Wales, the central authority—the Secretary of State—will ensure that in all cases the birth parents are informed of the effects of a simple adoption in England and Wales and will seek to obtain their consent to a full adoption prior to a convention adoption being made in a country outside the British islands or a convention adoption order being made here.

Where the receiving state is not England or Wales, it is possible that the child might be brought into this country in circumstances in which simple adoptions are recognised both in the state of origin and in the receiving state, so no consent to full adoption has been given. In such cases the procedure under the proposed legislation would be that the adoption would be treated as a full adoption by operation of law, but an application might be made to the High Court in relation to the issue of status where it was considered to be more favourable to the child to treat the adoption otherwise than as a full adoption.

Clause 84 re-enacts provisions in the Adoption Act 1976 which were amended by the Adoption (Intercountry Aspects) Act 1999. It provides that where the court considers that it would be more favourable to treat the adoption as anything other than a full adoption, an application may be made to the High Court for directions to be made that mean that the adoption is no longer treated as a full adoption.

The effect of the amendment would not be a simple tidying up, as the hon. Member for North-West Norfolk (Mr. Bellingham) asserts. It would remove from clause 84 a definition of full adoption; it would not be clear what was meant by full adoption and there

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would be doubt as to the ambit of the clause. The term ''full adoption'' would be open to interpretation, which could lead to inconsistencies or discrepancies in the treatment of different types of adoption. Given my assurances about what I accept is a complex and relatively rarely used provision, I ask the hon. Gentleman to withdraw his amendment.

Mr. Bellingham: In the light of the Minister's explanation that there is a good underlying reason for the subsection, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Tim Loughton: The Minister has alluded to subsection (2)(b). The subject with which it deals is both one to which we might return later and one that we might have touched on earlier had the knife of the programming motion had not come down. Will the Minister consider article 4(c)(2) of the convention, under which

    ''such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,''.

Will the Minister give the Committee her definition of the term ''freely''? The giving of consent is a bone of contention in UK adoptions, let alone in the more complicated overseas ones, and various bodies have made representations to us to ask what ''freely'' amounts to. A person who is seen to be giving consent freely might later claim that it was given under duress. Is the Minister satisfied that there will not be a challenge to the term ''freely'' as used in article 4 of the convention and subsection (2) of the clause?

Jacqui Smith: I am slightly confused about which part of the Bill is under discussion. Was the hon. Gentleman's question free-standing?

The Chairman: We are debating clause 84 stand part, and the hon. Member for East Worthing and Shoreham (Tim Loughton) seeks clarification of subsection (2) in relation to the Hague convention.

Jacqui Smith: I had jumped ahead. I understand that ''freely'', in the context given by the hon. Gentleman, means that the consent has not been encouraged through the offering of rewards or coerced using force. However, his point about the nature of consent given in such circumstances is important. We had a lengthy discussion on the conditions surrounding the giving and witnessing of consent in relation to domestic adoptions. It might be appropriate for me to write to the hon. Gentleman outlining what similar conditions we would expect to govern consent in relation to intercountry adoptions.

Tim Loughton: I would be grateful, because the Minister referred to financial inducements, which are already covered by article 4(c)(3) of the convention. To correct her slightly, we did not fully explore the issue of consent freely given to domestic adoption because

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of the programming motion. It would be helpful if she provided a definition before we encounter the phrase again.

Question put and agreed to.

Clause 84 ordered to stand part of the Bill.

Clause 85

Annulment etc. of overseas or Convention adoptions

Mr. Walter: I beg to move amendment No. 165, in page 46, line 35, leave out subsection (1).

The Chairman: With this it will be convenient to take the following amendments: No. 166, in page 46, line 40, leave out from 'ground' to 'that' in line 41.

No. 167, in page 47, line 5, leave out 'either of'.

Mr. Walter: I do not like the clause because it suggests that an overseas or convention adoption can be annulled by the High Court

    ''on the ground that the adoption is contrary to public policy.''

That would seem to allow the annulment of adoption on political grounds. If all the procedures under the Bill have been followed, it would be cruel to annul an adoption simply on so-called public policy grounds. Amendment No. 166 merely does the same thing as amendment No. 165 in a later subsection, and amendment No. 167 is consequential on those two.

Article 17 of the Hague convention states:

    ''Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if—

    (a) the Central Authority of that State has ensured that the prospective adoptive parents agree;

    (b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;

    (c) the Central Authorities of both States have agreed that the adoption may proceed; and

    (d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State.''

We must envisage a case in which the central authorities in two states have agreed a convention adoption, but the High Court intervenes and decides that it is contrary to public policy and that on political grounds or grounds of political correctness—I think we intended to avoid that phrase—it does not like the adoption. I am at a loss to know in what circumstances we would not like an adoption.

11.45 am

What really concerns me about the clause is that article 40 of the Hague convention states quite simply:

    ''No reservation to the Convention shall be permitted.''

However, under the clause,

    ''The High Court may, on an application under this subsection''

by order annul a convention adoption or adoption order,

    ''on the ground that the adoption . . . is contrary to public policy''.

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Therefore, the United Kingdom, or England and Wales, or the British islands, whichever is relevant under the clause, can annul a convention adoption, even though article 40 states that if all the rules are complied with, the adoption cannot just be moved aside because it is not deemed suitable on political grounds—particularly if the decision has been taken in the light of other articles, such as article 17.

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