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“we have come to the settled position that the 10-week provision is right, striking the balance between safeguarding children and having a requirement for adopters”.—[ Official Report, Standing Committee B, 14 March 2006; c. 38.]
I respect that as a general position, but feel that there should be discretion to take into account special circumstances that, in some cases, might lead to a different judgment in relation to the child’s best interests. As some of us will argue later this afternoon, the child’s best interests must be served by examination of each individual case. That is what the new clause attempts to secure.
Section 84 of the Adoption and Children Act 2002 provides for the High Court to be able to make an order granting parental responsibility to applicants who are not domiciled or habitually resident in the United Kingdom when they wish to take a child out of the country for the purpose of adoption. Section 84(4) imposes a requirement for the child to have lived with the applicants for at least 10 weeks before an application may be made under the section. A similar provision in section 46 prescribes various minimum periods for which the child must have lived with the applicants before an application may be made for an adoption order, but the section also allows for the court to give leave for some applications to be made before the usual period has expired. The requirement for the 10-week minimum period is of course designed to safeguard the child, and to ensure that the child and adopters have time to become acquainted with each other before the jurisdiction. However, as the applicants will by definition be habitually resident in another country, it will often be not merely difficult but impossible for them to live in this country for a minimum period of 10 weeks with the child before making an application, possibly having to remain here for still longer pending the outcome of the application.
It is most likely that, when someone wants to adopt overseas a child from this country, there will already be some connection—probably, but not necessarily, a blood relationship. In some circumstances, the child may already be well acquainted with the proposed adopters—for example, having spent holidays with them—but the existing provision in the Adoption and Children Act does not allow any flexibility or exercise of discretion. The new clause and amendments would allow flexibility, but permit rules of court to provide further safeguards if that were thought necessary.
It is important to bear it in mind that section 84 applications can in any event only be made in the High Court. It is not suggested that a final order under section 84 should be made before the child has lived with the applicants for at least the 10 weeks required, nor that it would always be appropriate or helpful for the child to be permitted to leave the country with the prospective adopters without a period of living with
them. But if the court is to be able to achieve the outcome that best meets the child’s needs, it is essential that it can consider all the circumstances and form a view on whether sufficient other safeguards are in place to permit the child to leave the jurisdiction. Without that, some children may be deprived of the possibility of secure family life with members of their extended family, or with adopters who share aspects of their heritage and culture, given that the 10 weeks may constitute an impossible barrier in some cases. I do not believe that it should be waived solely on the ground that it is an insurmountable barrier, but we need flexibility in such situations to make sure that the child’s interests are best served.
In most cases, a child would be placed overseas with someone related by blood, but in others the child would be placed with a person living abroad who was not a close relative. For example, the restriction on removing a child under section 85 of the 2002 Act applies to any child who is a Commonwealth citizen or habitually resident in the UK. The legislation that applied before the 2002 Act was introduced imposed a similar restriction in respect of children who were British or Irish citizens. Some children may be habitually resident in this country who not only are nationals of another country but have strong links with that country. For them, it would be most appropriate to be adopted in that other country.
In other cases, according to the BAAF, a local authority has tried to place a child with a family who have already adopted his or her older sibling but who have moved abroad. In extremely rare cases, the risks posed by a birth parent may be so great that one reason for seeking a placement outside UK jurisdiction is to ensure the safety of the child and of the proposed adopters. In proposing new clause 3, I am asking not for anything absolute but for flexibility, so that judgments made in the High Court are in the child’s best interests.
I am sure that the Conservative spokesman will present the arguments for the remaining amendments in the group in great detail, but I want to place it on record that my party is broadly supportive of all of them. As I said in Committee, I am sure that every politician and member of the general public is concerned about trafficking in children and other unethical practices, but we must also consider the plight of children in some countries in the developing world. We must focus on the welfare of the child and have regard to the UN convention on the rights of the child, so that the best interests of the child can be served. That may be achieved by allowing the child to live with a family in this country.
It is easy to understand and support the action that the Government have taken on Cambodia, but the remaining amendments in the group would help to provide a more balanced approach. In no way do they run counter to the best interests of the child, and their arguments for an appeals process, a review and recourse to the Hague convention seem compelling.
Today, I read again the Hansard report of our Committee proceedings, and I note that the Minister made various pledges to provide more information on the very high cost of overseas adoption. I hope that the House can be updated on when that information might be available, if is not so already.
Tim Loughton (East Worthing and Shoreham) (Con): As the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said, here we are again, at last—almost three months after we ended our discussion of the Bill in Committee. However, we are now able to deal with the large amount of business that was left unfinished then.
I have a deal of sympathy with new clause 3. Many technical deficiencies have emerged from the woodwork since the Adoption and Children Act 2002 came into force. We all supported that very comprehensive legislation, but the Government would do well to address some of the implications that have flowed from it. One area of difficulty arises from the problems with placing a UK child with adopters—such as suitable relatives, for example—in another country, where that is in the best interests of the child. However, to meet the terms of the 2002 Act, families may be required to spend as much as several months in the UK. That would appear to be excessive, and not in the interests of the child. That would be wholly impractical for some prospective adopting families from overseas who had work commitments or other children at school in their home country, so I certainly have some sympathy for the hon. Lady’s proposal. I shall be interested to hear the Government’s response and to learn whether they acknowledge that there is a genuine problem and whether they are prepared to accept the new clause or to revisit the problem, perhaps in regulation if that is possible.
Similar problems have emerged for British expatriate workers who adopt while they are in China. I do not know whether the Minister has been lobbied on the matter, as I have; my letter to her former colleague remains unanswered. The British adoption support group for China has been formed to deal with the problem that the Chinese authorities apparently require the British Government, through the Department for Education and Skills, to issue an approval letter to all prospective adopters to guarantee that the adopted children will be granted citizenship and UK passports. I think that is quite right, but the Department for Education and Skills will grant approval letters only to adoption applications filed by UK-registered adoption agencies and local councils, to which expats have no access because they are obviously not habitually resident in the UK while they are working overseas. In the spirit of the new clause, will the Minister undertake to look at the problem and, at the very least, to reply to my letter, which is now more than two months old? I know that she has received direct representations from expats working in China who have come up against that problem.
The other amendments are familiar to Members who were in Committee. Amendment No. 2 deals with the procedures whereby the Secretary of State can seek to suspend inter-country adoptions from a particular country. We agreed with that proposal in Committee; it is a tightening up exercise that the Secretary of State already has power to institute, but the amendment would bring the process into mainstream legislation and make it easier for the Secretary of State to take action where it is deemed that a country’s procedures for adoption fall well short of the expected standards. There may be suspicions of child trafficking, for example, as was the case with Cambodia, which is one country—if not the only one—on the suspended list for inter-country adoption.
There is some merit in our status, and that of several other countries, as signatories to the Hague conference convention. The amendment would cover countries that have signed up to the rules set out in the convention and that should, therefore, be entitled to be subject to a slightly different process. For some reason, the Minister has declined to respond to that suggestion in the past, asserting:
“There may be situations where a requirement to consult could have unfortunate implications for the welfare of those children by triggering a rush to adopt.”
However, inter-country adoption is, by its very nature, a slow, cumbersome and often expensive process for most adoptive parents, so that fear is rather overdone. Surely, as part of the process, we should have as much openness as possible about the fact that suspension is being considered, allowing adopters going through the process to make alternative arrangements or to reconsider their application. It would be helpful to include in the Bill a provision that a convention country and its authorities should be one of the statutory consultees.
4.30 pm
Amendment No. 1, too, deals with the process used to put a country on the banned list. I am sure that we all agree that, before banning or suspending a country from inter-country adoptions, the Government should consult all interested parties as widely as possible. As well as the Department of Health in the UK and the Welsh Assembly, as stipulated in the Bill, the Government should speak to the relevant body or Government Department in the country that is to be placed on the suspended list. The Bill is deficient, as it fails to make that requirement. What is the Government’s interpretation of the phrase, “contrary to public policy”, in clause 9? Proper and transparent consultation is required if we are to suspend countries for the right reasons. We must monitor their suspension and make sure that prospective adoptive parents who are trying to adopt in that country are kept in the loop and informed of their entitlements.
It is a big step to put a country on the suspended list, as that prevents UK citizens from adopting children from that country. Cambodia, for example, has about 670,000 orphans under 18, which is 5 per cent. of its population. Some 30,000 of those orphans are children under 15 who are orphaned by AIDS. The UK has a role to play adopting children who cannot find suitable homes in their own country, so it was a big decision to add Cambodia to the suspended list, just as it will be a big decision to add other countries in future. The process must be clear, transparent and properly accountable.
Amendment No. 22, too, deals with the process for keeping countries on the suspended list. It stipulates that there should be regular reviews of the reasons for the regulation of a suspended country to determine whether they still apply. We teased out a little detail from the Government on Report, but we need to know how much evidence they require to prove that the system in a prospective country for adoption is not working properly and that child trafficking, not genuine adoption, is taking place. What burdens and parameters of proof will be set? At what stage will a potential adopter be forced to abort the process of adoption from a country that is added to the list, and when can it be
resumed if that country is removed from the list? Again, transparency is required if we are to make sure that everyone is happy and satisfied that the Government have taken appropriate action.
The penultimate amendment in this group is amendment No. 4, which stipulates:
“The Secretary of State must establish an appeals procedure to consider appeals against the decision to impose special restrictions on adoptions from abroad.”
“The restricted list and the reasons are to be published in whatever way the Secretary of State thinks appropriate for bringing them to the attention of adoption agencies and members of the public.”
We have granted the Secretary of State an enormous blank cheque, as the provision does not specify how he will make that decision, how it will be communicated and consulted on, and how it can be reversed if the situation changes. It is therefore right to have proper checks and balances in the Bill and to establish the appeals procedure that amendment No. 4 seeks. The Bill must establish an appeals procedure to consider appeals against decisions to suspend, and against decisions not to permit individual applications to proceed, thereby ensuring transparency in all aspects of the decision-making process. It should be possible to bring together a group of people—independent of the Government, the agency and the applicants—with the relevant knowledge and expertise to form a properly constituted, working appeals procedure. We have raised this issue in Committee, but I hope that the Government will respond more favourably at this stage.
Finally, I turn to amendment No. 23, which would require the review process to include prescribed organisations. The Bill stipulates that the Government should consult only the National Assembly for Wales and Government Departments in Northern Ireland. But as we said in Committee, there is a whole host of other agencies and organisations in the UK involved with adoption—headed by the British Association for Adoption and Fostering, with which we and the Government are well familiar—that have something to say, rightly, and a good deal of expertise that needs to be consulted.
We need to make sure that, if these important decisions are to be made barring adoptions from certain countries, they are taken on the basis of considerations that are entirely dictated by the welfare of the children involved, and not on the basis of political considerations or of the state of diplomatic relations with certain countries. They must be based purely on what is in the best interests of the children who are prospectively to be adopted. That is why we are asking for a wider remit to consult other organisations whose only interest is promoting the cause of adoption for children for whom adoption is in their best interests, and which are without any political slant or international prejudices that might colour the Secretary of State’s decision.
The five amendments in my name and of other Opposition Members are constructive amendments aimed at improving the nature of this part of the Bill, which we support and have done all along. We are trying to put more detail in the Bill, which should provide more safeguards for those involved in the international adoption process, in the interests of transparency and fairness and ultimately, therefore, of the children whom this part of the Bill is all about.
The Parliamentary Under-Secretary of State for Education and Skills (Mr. Parmjit Dhanda): This group of amendments seeks further clarification on our proposals for inter-country adoption and I welcome the opportunity to provide it. The amendments cover a wide range of related topics, including the process for imposing special restrictions on particular countries, the determination of the fee for inter-country adoption casework—although that issue has not been touched on in our debates, it is dealt with in the amendments—and arrangements for safeguarding children adopted abroad from this country. They raise different issues, and I will try to deal with each in turn.
As they stand, sections 84 and 85 of the Adoption and Children Act 2002 prevent children from being removed from this country for the purposes of adoption abroad unless certain conditions have been met. The aim of those provisions is to help to prevent the abduction of, and trafficking in, children, and to ensure the development by affected children of secure attachments with their prospective future legal parent. I am sure that Members will agree that we should do nothing to weaken that safeguard unless we are satisfied that it is absolutely necessary to do so.
New clause 3 would allow the current minimum cohabitation period of 10 weeks to be waived, as the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said. I did not serve on the Standing Committee, but the hon. Lady did, and I am sure that she will recall that we explained the rationale behind the requirement for an appropriate period of cohabitation in section 84 and why that means that the period of cohabitation must take place in the United Kingdom. However, I shall briefly rehearse some of that rationale.
Until an order is made under section 84, the local authority retains parental responsibility for the child, and hence remains responsible for the child. In the parallel situation of a domestic adoption, no application for an adoption order may be made unless the child has been living with the prospective adopters for 10 weeks. A similar requirement therefore applies to applications for an order under section 84, which allows the local authority to monitor and assess the placement and to step in immediately and directly if there are any problems. That is part of our reason for not wanting the 10-week period to be waived. Obviously, the local authority would not be able to monitor or take action as directly or as immediately if the child were outside the UK. The requirements in section 84 therefore give the same safeguards and protection to children placed with prospective adopters who intend to adopt the child outside the UK as are given to children placed with domestic adopters.
Various reports and information must be made available to the court when considering an order under section 84, including reports and information arising from a review of the placement. It is important that the court has information on the success, or otherwise, of the placement before making an order that authorises the prospective adopters to remove the child from the country, and to distance the child, in every sense, from its birth family. The proposed measure would limit the information available to the court, and a report of the assessment of the placement is a significant, if not pivotal, piece of information.
Having carefully considered the arguments previously put on this issue, we continue to believe that it would not be appropriate to water down such an important safeguard. There can be no justification for a lower standard of safeguarding for children placed for adoption outside this country than applies for domestic adoptions. We therefore do not support the new clause. I understand that last December the period in question was six months, and it has subsequently been reduced; it is now 10 weeks. We feel that that is appropriate and proportionate, and we do not as yet have any evidence to the contrary, although we would always consider such evidence, if it were offered.
Amendment No. 1 would require the Secretary of State to consult
“the central authority in the country or territory to which restrictions are to apply”
before making a declaration. The Hague convention requires contracting states to designate at least one central authority to discharge functions in respect of inter-country adoption. As it stands, clause 9 requires the Secretary of State to consult the devolved Administrations in Wales and Northern Ireland before making a declaration of special restrictions. Adoption is a devolved policy area, and that requirement is entirely reasonable, as a declaration will have a direct effect on those countries. Such consultations are undertaken relatively often and are not a significant cause of delay.
One of the concerns that caused us to introduce the Bill is child trafficking, which appears often to be fuelled and assisted by corruption and improper financial gain. That was one of the specific areas of concern that led to the introduction of a temporary suspension of adoptions from Cambodia, which I know was thoroughly discussed in Committee. Sadly, corruption and the lure of improper financial gain will be present in some countries that may be placed on the restricted list at all levels up to, and including, the central authority. Indeed, in some cases the central authority could even be the main cause of such problems.
In such circumstances, consulting the central authority could pose significant risks to children by triggering a rush—the hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned this—to process adoptions much more quickly, before the special restrictions are introduced. We are not suggesting that that will be a feature of all situations where a country is placed on the restricted list. Indeed, information gathered from the central authority may be of significant value in a number of cases. However, a requirement in primary legislation to consult in each and every case is clearly not appropriate, so I am sure that the hon. Gentleman will understand that we cannot accept the amendment.
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