Adoption and Children Bill

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Kevin Brennan: Does my hon. Friend accept that that principle was abandoned 27 years or so ago? Before 1975, adopted people were never given access to identifying information about themselves, but in 1975 the whole basis for adoption and access to information was changed. There is no principle at stake here that was not changed a long time ago.

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Jacqui Smith: I was not around then—I was around, but in school, not in Parliament. My understanding is that the discussions that took place then were about the same difficulties that I have identified. Certain provisions were made—we may discuss one of them later. People who had entered into an adoption based on certain information were concerned that that basis would be changed, which is why it was thought necessary to offer people counselling before giving them access to their birth records. It is right that we should make provision for the future. People should be certain about the provisions because they will cover the lifelong nature of their adoption.

Tim Loughton: Whatever the Minister's impressions of what may or may not have been the problems at the time of the previous Act, and however much we try to make things better, the number of adoptions is now hitting 3,000 a year, which may increase, but at their peak in the 1960s, there were, albeit in different circumstances, 20,000 a year. Will she not acknowledge that not making the provisions retrospective will mean that many thousands, if not tens of thousands, of adopted people will lose out in the new arrangements? Those people have been waiting for a change in the law for many years, and they greatly outnumber those who have been adopted since 1976 and those likely to be adopted in the next few years. Those are the people who will feel excluded if the Minister does not alter the terms.

Jacqui Smith: I have made it clear in principle why it may be inappropriate, during an adoption, to change the basis of legislation on which the people concerned undertook it. Retrospective legislation is difficult in various ways. It would certainly be difficult to introduce the new provisions and apply them retrospectively without causing considerable distress. Many birth parents, adoptive parents and adopted people would have to be informed of their rights under the new scheme. That is not necessarily an argument against doing so, but must be considered. The task would be complex and costly, and complicated by the fact that given the poor quality of past record-keeping many individuals would be difficult to trace. For some, it would be a disruptive intrusion years after they had been adopted.

As we said during this morning's sitting—the hon. Member for East Worthing and Shoreham (Tim Loughton) expressed some sympathy for this view—some people may not even know that they had been adopted. I understand that the present situation is unsatisfactory for many, but the risk is that rejecting the certainty over the position prior to the enactment of this Bill will bring significant problems and cause

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great distress to people who believed that they understood the access to information basis of their adoption.

New clause 8 lays down the position with respect to the disclosure of information about a child, including, but not only, an adopted child. The Government thought it appropriate that the qualifications, hurdles or considerations given to the disclosure of protected information about a child should be different from those for an adult. When the request for information concerns an adopted child, the agency will be obliged to seek the views of the adoptive parents on a request for identifying information. In coming to any decision, the adopted child's welfare would be the paramount consideration.

Subsection (2) of new clause 8 provides that the agency is not obliged to proceed with an application for disclosure of information unless it considers it appropriate to do so. Subsection (6) provides that, in deciding whether to proceed with the application, the welfare of the adopted child must be paramount when any of the information involved relates to a person who at the time of the application is an adopted child. In the case of any other child, the agency must have particular regard to his welfare.

Under subsection (3), if the agency decides to proceed with the application, when the information relates to a child

    the agency must take all reasonable steps to obtain...the views of any parent or guardian of the child''

as to the disclosure of the information. The agency must also obtain

    the views of the child, if the agency considers it appropriate to do so having regard to his age and understanding''.

In other words, when a child is competent and the agency considers it appropriate, the child's consent should be sought.

When the agency decides to proceed with the application, under subsection (4), when the information relates to a person who has attained 18 years at the time of the application,

    the agency must take all reasonable steps to obtain his views as to the disclosure of the information.''

Mr. Jonathan Djanogly (Huntingdon): This is a technical point. Subsection (1) of the new clause states:

    This section applies where...any of the information is about a person who is a child''.

Subsection (4) then refers to someone attaining the age of 18 years. Is that compatible?

Jacqui Smith: Subsection (4) is necessary because, if information related to both an adult and a child, the provisions in the new clause would be appropriate. In relation to the gaining of consent from the adult, the provisions are what we want.

Subsection (5) gives the agency a discretion to

    disclose the information if it considers it appropriate to do so.''

That discretion must be exercised with regard to subsections (6) and (7).

The new clause relates not only to adopted children but to other children, so it is necessary to lay down the basis on which the interests of an adopted child and a

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child who was not adopted would need to be considered if they were both covered by the same disclosure of information.

Subsection (7) further provides that, in deciding whether to disclose any information, the agency must consider the welfare of the adopted person. When the child is not adopted, paramountcy will apply. That is a similar point to the one on which I responded to the hon. Member for Huntingdon (Mr. Djanogly).

Under subsection (8), the clause

    does not apply to a request for information under section 58(2)'',

which concerns a request made by an adopted adult for the information needed to enable him to obtain a certified copy of his birth record or the information given by an agency to his adopters under new clause 6.

New clauses 7 and 8 outline the different processes for disclosing protected information about adults and children and ensure consistency in deciding the appropriateness of such disclosures. That is an improvement, as there has been concern about the lack of consistency resulting from the lack of direction that adoption agencies have been given about the way in which they disclose information. The new clauses also enable consideration to be given to the wishes of people about whom information is to be disclosed. The distinction between the new clauses recognises that some issues are particular to the disclosure of information about a child.

With that explanation, I hope that the Committee will feel able to support the provisions.

Tim Loughton: I wish to explore the new clauses further. I am not labouring the point for the sake of it, but it is difficult to follow the Minister. She talks about the effect of the new clauses on clause 58(2) information, but the provisions have been chopped around so much that I do not know what clause 58(2) information entails, and it is difficult to know what is intended.

A continuity of approach among different agencies is important. Some adoption agencies go out of their way to provide intermediary services, to be as helpful as possible and to provide as much information as they can to enable birth parents and adopted children to re-establish links. However, others—the services may be provided by local authorities or charities—do not. There is an enormous disparity in the level of service, and we must make considerable improvements.

The Minister said that agencies had a large degree of discretion not to take matters further when a very inappropriate or vexatious approach was made, but what does that mean? On what basis are vexatious approaches made? We have been told that people who have not been adopted have approached adoption agencies to get information, but what examples are there of that and what are the implications?

I did not understand the Minister when she talked about a birth parent making an approach to an agency. The agency would take soundings from the adopted adult, who might make it clear that they did not want to be contacted, but would that be an absolute veto? By saying no, does the adopted adult

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put an end to any further searches, or could a birth parent still be given information even though the adopted adult had exercised some sort of veto?

There is still a great degree of greyness about what happened at the time of the previous Act, to which the hon. Member for Meirionnydd Nant Conwy alluded. In the Minister's detailed understanding—I am not talking just about what happened when she and I were at school—was there really some form of legal arrangement whereby anybody adopted before the enactment of that Act was cut out of any of these processes? Everything that I have read suggests a different story. What is the legal basis for not extending that degree of coverage retrospectively to older adoptions, rather than just getting it right in the future, which I am pleased that we are doing?

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My key point is that we are considering a substantial number of individuals who were adopted over the past 50 years. Far fewer people have been adopted since the 1976 Act than those who are affected and have lived for many years without being able to make such contact. For many, doing so will be a traumatic experience, and we need to strike a balance, whether by a system of veto or something else. I have mixed views. I have not been convinced by the Minister why such people should be completely left out of the new processes.

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