Select Committee on Draft Children (Contact) and Adoption Bill First Report

CHAPTER 7: Adoptions with a foreign element (clauses 6 to 8)

Current situation

122.  The United Kingdom is a signatory to both the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption (Hague Convention) and the UN Convention on the Rights of the Child (UNCRC). The Hague Convention requires that inter-country adoption takes place only where it is in the child's best interests, that all adopters are assessed and approved and that no profit should be made from adoption processes. The UNCRC is a general statement of the basic human rights that children should expect to enjoy. Article 21 of the UN Convention concerns adoption and, in relation to inter-country adoption, requires countries to recognise that inter-country adoption may be considered an alternative means of child care if the child cannot be suitably cared for in its country of origin; ensures that the child enjoys safeguards and standards equivalent to those existing in national adoption and takes all appropriate measures to ensure that placement does not result in financial gain for those involved in the process.

123.  The Secretary of State currently has no express statutory right to place restrictions on adoptions from a particular country. However, the United Kingdom has previously placed restrictions upon both Cambodia and Guatemala in respect of inter-country adoptions. At present, the United Kingdom requires that DNA testing take place for relinquished children in Guatemala to ensure that women giving children up for adoption are in fact their mothers.[100] In June 2003, the United Kingdom placed a temporary suspension on adoption by United Kingdom residents of children from Cambodia. This decision will be subject to a forthcoming judicial review, R (Charlton Thomson and others) v Minister of State for Children,[101] which we note is likely to raise further issues with regard to the provisions on inter-country adoption outlined in this draft Bill. The judicial review is due to be held in April 2005, after the publication of our report. However, we expect the Government to take into account in the full Bill any issues arising from the judicial review proceedings.

Consultation and Regulations

124.  We were concerned to read suggestions that Part 2 of the draft Bill "was not preceded by consultation of any kind".[102] Certainly, the provisions of Part 2, unlike those in Part 1, have not been preceded by a Government White or Green Paper, nor are we aware of any other public consultation about this issue. We consider that many of the problems arising within this part of the draft Bill, and outlined in our discussions below, could have been mitigated by greater consultation before publication.

125.  We also note that a significant amount of detail in this part of the draft Bill has been left to regulations. This includes regulations to set out the special restrictions placed upon a country and to make provision for exceptional cases. The content of these regulations will be key to addressing some of the concerns we outline below.

Reasons for imposition of special restrictions

126.  Part 2 of the draft Bill would make statutory provision for the Secretary of State to impose special restrictions on adoptions from a specified country. This power would be exercised in circumstances where the Secretary of State believed that, because of practices in a particular country in connection with the adoption of children, it would be contrary to public policy to further the bringing of children into the United Kingdom from that country.

127.  The meaning of "public policy" in this context is not defined or explained in the draft Bill or the Explanatory Notes. The draft Bill is therefore silent as to the criteria that the Secretary of State will apply when determining whether or not to apply special restrictions to a particular country from where a child could be adopted. Witnesses have argued that threshold tests should be outlined: "we would hope that the threshold tests, which need to be met before a state of origin is deemed a 'restricted country', will be set out in regulations".[103]

128.  In oral evidence, the Minister for Children told us:

"The criteria will be based on the Hague Convention criteria which state that it is the best interests of the child with respect for his or her fundamental rights and to prevent the abduction [or] the sale of or traffic in children... In both Cambodia and Guatemala we have reflected those criteria."[104]

129.  In written evidence, the Minister later told us that she would be "unwilling to set strict criteria on the face of the Bill" as it "would be extremely difficult, if not impossible, to provide for every possible circumstance where special circumstances would be appropriate".[105] She proposed:

"Instead I would envisage that the widely recognised principles which are set out in international law relating to children and to intercountry adoption would always be taken into account by the Secretary of State in making her decision. These principles would be those set out in both the United Nations Convention on the Rights of a Child... and the Convention on Protection and Cooperation in respect of Intercountry Adoption."[106]

130.  We welcome the Minister's commitment that international law would always be taken into account when determining whether a country should face special restrictions and consider that this should be made clear within the legislation. We recommend that it should be stated clearly on the face of the Bill that, in considering whether special restrictions ought to be imposed, the Secretary of State must have particular regard to the rights enshrined in the UN Convention on the Rights of the Child (UNCRC) and the Hague Convention on Protection and Cooperation in respect of Intercountry Adoption.

131.  The Secretary of State is of course bound by Section 6 of the Human Rights Act 1998, as a public authority, to act in a way which is compatible with the Convention rights. They can be judicially reviewed, on the application of an alleged victim, of a failure to do so. It is clear therefore, that any action undertaken in pursuance of the powers proposed under the draft Bill would have to be compliant with the Convention rights for it to be lawful.

Imposing special restrictions

132.  Concern has been raised about the abrupt way in which prospective inter-country adoptions were halted once the suspension on adoptions from Cambodia was announced, with no forewarning given to prospective adoptive families, local authorities or voluntary adoption agencies.[107] Only those families who had already been matched with a child in Cambodia were allowed to proceed with adoption. This excluded even those who had already had their applications forwarded to Cambodia—a stage that is likely to have taken two years to achieve (with up to £5000 costs).

Requirement to consult

133.  At present, the draft Bill provides that the Secretary of State must consult the National Assembly for Wales before declaring that special restrictions will apply to inter-country adoption from a particular country.[108] There is no requirement for the Secretary of State to consult any other parties.

134.  The claimants from the judicial review case concerning Cambodia proposed that before imposing special restrictions the Government should be obliged to consult a range of stakeholders, including potential adoptive parents part-way through the process, local United Kingdom adoption agencies, social services departments, institutions working within the country and the government of the country concerned. They suggest that without this measure the draft Bill "places a disproportionate amount of power in the hands of the Secretary of State and her officials who inevitably cannot be fully informed about the circumstances on the ground in any particular country".[109]

135.  They propose that a process of consultation might also enable other, less severe, proposals to be considered in order to address problems in relation to adoption within a particular country. This could include for instance DNA testing, as is already used in Guatemala, or enhanced entry clearance checks.[110] The Overseas Adoption Helpline agreed that the Government should "provide a notice period to all parties", in order to allow the country concerned to make representation to the Government and to provide a period of warning for prospective adopters. [111]

136.  We have not had an opportunity to discuss this issue directly with the Government, but understand that their argument against giving a notice period is that it could result in a rush to adopt from that country. Evidence from prospective inter-country adopters has indicated that it would be almost impossible to "rush" such a lengthy and bureaucratic process.

137.  We recommend that the full Bill should include a requirement for the Government to consult with relevant stakeholders before making a decision to impose special restrictions.

Guillotine for proceeding with adoption from restricted countries

138.  The draft Bill does not explicitly determine the cut-off point for allowing adoptions to proceed once special restrictions have been declared. However, as outlined above, in the case of Cambodia only those families who had already been matched with a child were allowed to proceed with adoption.

139.  The applicants for judicial review in the Cambodian cases have raised concerns that the draft Bill makes "no provision at all for transitional cases, in particular those where prospective adopters are well advanced in the process of adopting".[112] This contrasts with measures taken by other countries that have also imposed inter-country adoption restrictions on Cambodia. In the US for instance:

"Special transitional arrangements were made for those 'pipeline' couples part way through the process at the time. These involved a dedicated team being sent to Cambodia to fully investigate such cases, in order that they could proceed but be given particular scrutiny. The French authorities have taken a similar approach."[113]

140.  The Overseas Adoption Helpline suggested that "a different cut-off point would have been preferable and would not have compromised the best interests of the child concerned".[114] They consider that in future the Government should allow "all adoptions to proceed where the DfES Certificate of Suitability and Eligibility had been granted".[115]

141.  We recommend that the Government review the cut-off point for adoption from a restricted country, with the intention of providing transitional arrangements for those couples at an advanced stage in the adoption process, bearing in mind that the welfare of the child is at all times the paramount consideration.[116]

Provision for exceptional cases

142.  Clause 7(3) would allow exceptional cases to proceed in restricted countries if prospective adopters could persuade the Secretary of State that the general concerns which led to the imposition of special restrictions would not apply in the prospective adopter's individual circumstances. The Committee has heard from the Minister that exceptional cases could include a range of circumstances:

"It is difficult to be precise because you do not want to exclude exceptional circumstances which might arise, but the sort of situation we are thinking of is if the issue of adoption is by a relative in another country or if it is a sibling of a child that has already been adopted in this country."[117]

143.  The Overseas Adoption Helpline noted that there is a process for considering exceptional cases in relation to the current Cambodian suspension of inter-country adoptions, but that "concern has been expressed by prospective adopters caught by the suspension that the process is not transparent or accountable".[118]

144.  They propose that two measures should be included in the Bill to make the process more transparent and accountable. First, there should be a clearly set out procedure for consideration of special circumstances cases at all stages in the process and not just in relation to cases where a particular named child is involved (as would appear to be envisaged in section 7(3)).[119] Second, decisions about exceptional circumstances should be subject to an independent appeals procedure:

"We would suggest that the Independent Review Mechanism established by s.12(1) Adoption and Children Act 2002 and already in operation be used for these appeals."[120]

145.  We agree that the procedure for considering exceptional cases in relation to a restricted country should be set out in the special restrictions regulations. We further recommend that the Government consider establishing an appeals procedure and explore whether this function could be undertaken by the Independent Review Mechanism established by the Adoption and Children Act 2002. Any appeals procedure must meet the requirement that the welfare of the child is at all times the paramount consideration.[121]

Inter-Country Adoption Agency

146.  Detailed consideration of the whole law and practice relating to inter-country adoption is beyond our remit. It is nevertheless appropriate to record the very clear evidence given by the witnesses from the Overseas Adoption Helpline that the United Kingdom is outside the main loop of most western states because it does not have a recognised national Inter-Country Adoption Agency. As a result, children from many potential donor countries are not available for adoption by United Kingdom citizens, with the effect that potential adopters may be forced to seek children from states where the pre-adoption practice is more likely to be unsatisfactory:

"We do not have specialist inter-country adoption agencies that have representatives in the overseas countries and that work collaboratively with them, and there are a number of countries that are closed to United Kingdom applicants because we do not have that system."[122]

"I think the lack of an agency is a huge one if one looks at child protection as well: because I think British families are thrust more onto the less organised countries, Cambodia being one of them, because many of the best organised countries do not want to work with British families. They do not want to work with individuals who are having to reinvent the wheel every time they do an adoption. They want to work with professional agencies who know exactly what they are doing and understand these incredibly complex structures."[123]

147.  We were particularly concerned to hear that:

"Until we have agencies, I am not confident that the spirit of what we have been attempting to do in legislation will be achieved."[124]

148.  The adoption agencies promoting inter-country adoption have done excellent work in creating opportunities for the adoption of children where it is in the interests of the child. However, these organisations may be perceived to have a conflict of interest when it comes to the possible application of restrictions on inter-country adoption. Although we have had insufficient time to consider these issues in detail, we consider the establishment of a body which would enjoy the confidence of all parties to inter-country adoptions, including government, would be a very positive step.

149.  We recommend that the Government should take steps to establish an inter-country adoption agency, which we believe would enhance good adoption practice and inform the Government about unsatisfactory practices in countries where children are available for adoption.

100   Ev 119 Back

101   CO/4555/04, listed to be heard by the Administrative Court on 18 and 19 April 2005. Back

102   Ev 149, para 13 Back

103   Ev 74, para 5 Back

104   Q 356 [Margaret Hodge MP] Back

105   Letter from Rt Hon Margaret Hodge MP to Baroness Nicholson of Winterbourne, 14th March 2005 Back

106   Letter from Rt Hon Margaret Hodge MP to Baroness Nicholson of Winterbourne, 14th March 2005 Back

107   Ev 147, para 4 Back

108   Clause 6(4) Back

109   Ev 149, para 16 Back

110   Ev 149, para 17 Back

111   Ev 75, para 5.11 Back

112   Ev 149, para 16(3) Back

113   Ev 147, para 5 Back

114   Ev 74, para 5.8 Back

115   Ev 75, para 5.11 Back

116   As is required in the Adoption and Children Act 2002. Back

117   Q 364 [Margaret Hodge MP] Back

118   Ev 75, para 5.14 Back

119   Ev 75, para 5.14 Back

120   Ev 75, para 5.14; also see Ev 149, para 18 Back

121   As is required in the Adoption and Children Act 2002. Back

122   Q 222 [Ms Haworth]. See also Ev 83. Back

123   Q 224 [Ms Angell] Back

124   Q 224 [Ms Angell] Back

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