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Lord Hunt of Kings Heath: If the noble Earl, Lord Howe, will allow me, I shall respond to that. The general argument seems to be that there will be a more successful outcome if the couple is married, and that there should therefore be a hierarchy whereby married couples come top in every situation. I think that that is the logic of where we are going. However, it cannot be that way. There has to be an individual assessment of each couple. The issue in the assessment is the strength of that relationship, and the assessment as to whether that couple—

Earl Russell: Is it fair to say that it does not strengthen the relationship to say that it lasts "till death do us part" if death be by murder?

Lord Hunt of Kings Heath: Oh, my Lords!

If a couple have been happily married, and that is apparent in the assessment process, that will of course be a strong recommendation to the adoption agency undertaking the assessment. It is strong ammunition to suggest that, among other factors, that couple will make jolly good adopter parents. However, one cannot then say that because married couples' outcomes are better overall, married couples should be given priority in every situation as against unmarried couples.

Baroness Masham of Ilton: During this debate the question that has occurred to me is whether the wishes of the birth parent will be taken into consideration. For instance, she might want a certain religion, or she might want the parents to be married. Will that be taken into consideration?

Lord Hunt of Kings Heath: One must be wary of allowing pre-set conditions. However, in most cases of adoption the birth parents will have given their consent. Where they have not given their consent and the final stage of an adoption order has been reached, the natural parents can ask for the leave of the court to make objections should they so wish. The Bill also describes the circumstances in which parental consent can be over-ridden in the interests of the child. However, we have to be very wary of going down the route of pre-set conditions which say that only one category of adopter parent will be admitted.

Lord Campbell of Alloway: Can we get this absolutely plain before we go any further? Marriage is relevant for the purpose of assessment. Once you are assessed, it ceases to have relevance as part of a system of gradation. Is that the situation?

Earl Howe: I thought that the Minister had very helpfully clarified the position in answer to the noble Earl, Lord Listowel. The simple fear I expressed was that the Bill as currently drafted will lead to a disproportionate number of unmarried couples being assessed. I am ready to be shot down on that, but I

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have not actually heard a knock-down argument that does so. Perhaps between now and Report noble Lords will provide those arguments.

The noble Earl, Lord Russell, suggested that splitting up was not the ultimate evil. As a product of divorced parents myself, I am prepared to agree with him. However, he will surely concede that splitting up, though not the ultimate evil, is equally not an end devoutly to be wished. The question not answered by the noble Earl is why, with our eyes open, we should expose children to the additional risk of splitting up to which I referred earlier. My approach is the risk management approach. I make no apology for that. I do not apologise because of Clause 1. We should not be in the business of countenancing serious and significant additional risk when Clause 1 of the Bill takes us through a catalogue of considerations.

Earl Russell: I shall, if I may, answer the question posed by the noble Earl. Why expose them to risk? If one is not prepared to be exposed to risk, ones does not marry at all.

Earl Howe: If the noble Earl's argument were accepted, we would scrap Clause 1 and just accept any couple who came along. Of course, there are risks that are more important and significant than others. I was chided by the noble Lord, Lord Adebowale, about poor people. He suggested that if my argument were followed, then poor people should not be allowed to adopt. I am sure that even he would agree that, in the assessment process, the ability of a couple to support and bring up a child is important, actually. That does not mean that poor people should not be allowed to adopt, but it is a consideration in whether the child would be properly looked after.

My position, therefore, can be easily rubbished in terms that amuse everybody. However, I have not heard anyone seriously attack me or repudiate my earlier arguments about risk. In reply to the noble Baroness, Lady Thomas, I am certainly not saying that certain sorts of family are unsuitable for adoption. I am saying that there are clear and proven risks. Why take them? Although we can talk all we like about rigorous assessment and the stability of a relationship, rigorous assessment makes the process sound like a science.

Lord Clement-Jones: I should like to press the noble Earl further. Taking his risk management approach to its logical conclusion, we could decide that the divorce rate in a particular town—Berkhamstead, for example—was so high that the risk of placing people for adoption there with married couples was too great, so we had better exclude all adoption in Berkhamstead. Is that not the ultimate conclusion of the risk management approach?

Earl Howe: Not at all. The noble Lord is falling into the trap I was indicating earlier. His argument has nothing to do with real people.

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Lord Hunt of Kings Heath: Is that not the point of the argument here? The noble Earl's argument is that, because of the general statistics that show that married couples tend to stick together more than cohabiting couples, no unmarried couples should be able to be adopters. If Clause 1 is right and the paramount consideration is the child's welfare, we must consider each child and each potential couple on their own merits.

Earl Howe: Yes, indeed we must, but there is no magic formula to enable anybody, however professional and however experienced, to assess whether this couple or that couple is more or less likely to split up. It cannot be done. It is a subjective judgment. Noble Lords may airily dismiss the statistics—and the noble Lord, Lord Clement-Jones may refer to them as pseudo-statistics—but they are published by the ONS.

The study published in 1999 concluded:

    "In general, across most European nations children are less likely to see their parents split up if they are born to married parents than to cohabiting parents".

An analysis of the subsequent British Household Panel Survey said:

    "Cohabitees who have children are more likely to split up than those who do not. The evidence therefore points to the likelihood that placing an adoptive child with an unmarried couple will increase the likelihood of their relationship breaking down".

That is more or less the only point I was making. It is very simple and noble Lords have not fully answered me, though they have tried to.

Lord Clement-Jones: I shall try one final stab at the noble Earl. The point is surely that that does not deal with real people. The noble Earl is dealing with statistics, probabilities and risk management. He is not dealing with individual couples who put themselves forward as adoptive parents.

Earl Howe: But I am. I am dealing with real people with real children. That is what the statistics are based on. It is not where they live or what their name begins with, which are irrelevant considerations. It is real people with real children who split up. Statistically, married people split up less often. I do not believe that the noble Lord has got to the heart of my argument.

As I said at the beginning, we are not going to decide this matter today. I thank all Members of the Committee who have spoken and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Clause 49 [Adoption by couple]:

[Amendments Nos. 72 and 73 not moved.]

Clause 49 agreed to.

Clause 50 [Adoption by one person]:

[Amendments Nos. 74 and 75 not moved.]

Clause 50 agreed to.

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Clause 51 [Parental etc. consent]:

6.30 p.m.

Earl Howe moved Amendment No. 76:

    Page 31, line 8, leave out paragraph (b) and insert—

"(b) adoption would be so significantly better for the child than any other option as to justify overriding the parent's wishes."

The noble Earl said: I shall speak also to Amendments Nos. 77 and 78.

We all welcome the provision in Clause 1, which introduces the welfare principle into all decisions by adoption agencies and courts relating to the adoption of a child. This will ensure that, whatever the competing interests in the adoption process, the welfare of the child is ultimately at the top of the agenda.

However, Clause 51 brings with it a related concern. We see in subsection (1)(b) what apparently amounts to a simple welfare test for dispensing with parental consent. This has caused considerable disquiet among experienced professionals in adoption, including the BAAF and the Law Society. Adoption is different from any other plan for the vulnerable child because it involves lifelong consequences. An adoption order triggers an irrevocable severance of the relationship between the child and his or her parents and wider family. It therefore constitutes the most fundamental interference with the right to family life from the point of view of the child's birth family.

For these reasons, it is important to ensure that, when it comes to overriding parental wishes in adoption cases, the manner in which welfare is interpreted is subject to particular scrutiny, to show that adoption will bring significant advantages that cannot be achieved by any other plan. If those significant advantages cannot be demonstrated, the child's welfare may be better served by securing his placement by another legal route, which does not involve such irreversible finality for all parties.

The Adoption Act 1976 contained provisions to ensure that adoption cannot be imposed by the state on non-consenting parents without there being grounds to dispense with such consent. However, the wording of Clause 51(9)(b) removes any consideration of the parents' consent to adoption, because dispensation will be based entirely on judicial interpretation of what will, on balance, best promote the child's welfare. While that closely mirrors the grounds for orders made under the Children Act, it does not distinguish between adoption and, for example, a residence order or special guardianship order, even though the consequences of each differ substantially.

I ask the Minister to seek advice on European case law, which has established that there must be exceptional circumstances to justify permanently severing the parent-child relationship. The Bill does not give appropriate weight to the irrevocability of adoption in contrast to other orders. In step-parent adoptions, where the court is being asked to dispense with parental consent, an adoption order may be

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granted in cases where there is no finding of parental failure to protect their child as in cases where children are adopted from care and adoption is in the child's interests only on balance.

The proposal in Amendment No. 76 is that the circumstances should be exceptional enough to justify the state severing the parent-child relationship against the parents' wishes, following which the welfare principle in Clause 1 would be applied by the courts to determine whether adoption is the best course for the child. Without such an amendment, there will be no test for dispensing with parental consent and too little encouragement to the courts to consider alternative proposals when parents are withholding their consent. That was one of the recommendations in the 1992 interdepartmental working group report to Ministers.

Amendments Nos. 77 and 78 can be covered very briefly. Amendment No. 77 is closely related to the point that I have just made. Consent by birth parents to an adoption order must be fully informed consent. This is not just a matter of making sure that the finality of the adoption order has been impressed on them. It is also a matter of making sure that the alternatives to adoption have been thoroughly explored and explicitly rejected. Special guardianship as a half-way house may be appropriate in some cases. Birth parents have to know about it and consider it.

Amendment No. 78 relates to Clause 51(5). What do we mean by consent? The clause says,

    "'Consent' means consent given unconditionally and with full understanding of what is involved"

That is obviously right, but it should also mean consent that is freely given without any suggestion of duress. Nor should consent be obtained on the back of any financial or non-financial inducement. In each case the process has to be open, honest and transparent. I very much hope the Minister will be sympathetic to these arguments. I beg to move.

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