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Lord McIntosh of Haringey moved Amendments Nos. 56 and 57:
- Page 29, line 11, after "1995," insert—
On Question, amendments agreed to.
Clause 47 [Conditions for making adoption orders]:
Lord McIntosh of Haringey moved Amendments Nos. 59 and 60:
On Question, amendments agreed to.
Clause 49 [Applications for adoption]:
Earl Howe moved Amendment No. 61:
On Question, amendment agreed to.
Clause 50 [Adoption by couple]:
Earl Howe moved Amendments Nos. 62 and 63:
On Question, amendments agreed to.
Clause 51 [Adoption by one person]:
Earl Howe moved Amendments Nos. 64 and 65:
On Question, amendments agreed to.
Clause 52 [Parental etc. consent]:
Earl Howe moved Amendment No. 66:
The noble Earl said: My Lords, in Grand Committee we had a most useful and enlightening debate on the provisions of Clause 51, now Clause 52, which deal with the sensitive issue of parental consent. I seek to return to those issues with my Amendment No. 66. My concern relates to the circumstances in which the court will be able to dispense with the consent of a birth parent to the making of a placement order or to the adoption order itself.
We need to have at the front of our minds, once again, what it means for a family to be subject to adoption proceedings. Adoption stands apart from any other plan for the child because it involves lifelong consequences; it leads automatically to an irrevocable severance of the legal ties between a child and his or her parents and wider family. For that reason, it amounts to the most fundamental interference with the right to
I listened with care to the Minister's comments in our earlier debates, as I did to those of my noble friend Lord Campbell of Alloway whose experience in these matters has been such an asset to us. Both the Minister and my noble friend tried to reassure me. What troubles me, however, is that we appear to be envisaging here a provision that is too loose. I say this particularly in the context of European law, which on this issue is very clear and specific. European case law has established that there must be exceptional circumstances to justify permanently severing the parent-child relationship.
I seriously question, even with all the provisions of Clause 1 of the Bill, whether it is enough to allow a court to dispense with parental consent purely on the strength of a judgment about the child's welfare. My approach previously to the issue was to try to put a stiffer type of test before the court, a higher hurdle for it to cross than a judgment about the child's overall welfare. That approach was flawed, and I accept that.
What I am now suggesting is that we ought to narrow down the circumstances that might enable the court to dispense with parental consent. It could do so when the parent cannot be found or is incapable of giving consent, as set out in subsection (1)(a). I suggest that the only other situation in which the court could do so is where it is satisfied that the child is at risk of significant harm, which requires the consent to be dispensed with. In other words, it is a very much more specific test which, if passed, would then trigger the consideration set out in Clause 1. If the test is not met, then the court would be able to consider protecting the child's welfare by another legal route, perhaps a residence order or a legal guardianship order which does not involve the finality that I have spoken about.
I should remind the House that this part of the Bill as it stands has given rise to considerable disquiet among professionals in the field of adoption, including the BAAF and the Law Society. I think that that disquiet is well-founded. We have to tread very carefully before allowing the state to impose on a set of parents an irrevocable severance from their child. Where there is a question mark, as I believe there is, on the availability of effective community support for birth parents, it strikes me that we would do much better to concentrate our efforts on providing support of that kind, with a view to minimising the need for unconsented placements or adoptions being mooted in the first place.
I hope that the Minister will feel able to look constructively on this amendment. I beg to move.
Lord Campbell of Alloway: My Lords, I have to speak on this matter because I was counsel in that leading case. With respect to my noble friend Lord Howe, I do not think that he begins to understand, or that many people begin to understand, the real issues
My noble friend said that he wants a restricted, narrowed down approach. The unanimous decision of the court, all the opinions, said that that is precisely what should not happen in the welfare and the interests of the child. My noble friend seeks to say that the measure will in some way satisfy those who wish to restore the blood tie argument. However, the whole essence of the decision was to strike down the series of decisions of the Court of Appeal which favoured the blood tie. I am not going into details of law; I am merely telling your Lordships what happened for the sake of the record as there are not many noble Lords present. It is important that what happened should be recorded.
Whether we like it or not, we have entered a veritable no man's land strewn with unexploded ammunition. Walking out of this Chamber I was reliably informed that the advice that I gave to the House about the amendments we discussed being wholly unenforceable was dead right—I shall not say who told me that but it was a noble Lord of great authority; I do not know which way he voted. If that is so, we must be careful. What will happen? First, the measure will go to the other place. What will the Members of the other place do? We do not know. If they defeat our amendment and send it back, what shall we do? We do not know. We are faced with potentially unenforceable legislation.
It is against that background that I urge the exercise of considerable care as regards interfering with the leading decision of In Re W, which this measure is designed to do. Let us not mince the question; that is it. Those who propose the measure want to restore the blood tie; they do not like the welfare approach; they want a different, more specific approach. However, we must think carefully about that because In Re W still stands and is binding on the Bill. The amendment covers married couples only. Assuming that the amendment becomes law, it will affect only married couples. On that basis, In Re W still stands as regards married couples. It is crucial that it should not be defeated by an amendment such as this.
It is even more important that my noble friend and the House should realise what is happening. I hope that noble Lords will forgive me for taking time to explain the matter. In Re W was a hard fought case. It took a lot of effort to win. The decision was unanimous and it is binding on this Bill. I thought that your Lordships should know that.
Baroness Andrews: My Lords, I am most grateful to the noble Earl and to the noble Lord, Lord Campbell
Amendment No. 66 follows on from the debates we had in Grand Committee about the legal test for dispensing with parental consent to adoption. This is one of the most central, weighty and important issues raised by the Bill. As the noble Earl said, it constitutes an irrevocable step. If we are going to interfere with family rights in this way, we must have good reasons and good tests in place. The matter has exercised stakeholders for some years. One of the reasons we are swinging back and forth trying to find a definition is precisely because of the difficulty of doing that.
I am grateful that the noble Earl responded so positively to the points that we raised in Grand Committee. We agreed that the term "significantly better" was far too loose as regards determining the ability to intervene. However, I hope that the noble Earl will understand that I cannot accept the amendment as I consider that it has swung to the other extreme. It is extremely narrow and we believe that it constitutes too restrictive a test. I wish to reiterate the importance of the paramountcy principle in Clause 1. It underpins our thinking and the whole Bill. It makes the child's welfare the absolutely fundamental paramount consideration. It is a great step forward. It builds on case law and it has universal support inside and outside the House. Clause 1(4)(f) ensures that the views, interests and capabilities of parents and relatives are essential elements in the decision.
The second principle that has shaped our approach—I refer to what the noble Lord, Lord Campbell of Alloway, said in this regard—is the need to set out in the legislation a clear, broad framework. However, we do not want to constrain, fetter or reduce the discretion of the court in any way. The term "test" is not used in the Bill but that is what we are talking about—a welfare test.
In Grand Committee the noble Baroness, Lady Howarth of Breckland, raised an important question, which I hope that we can answer, about whether the relevant test will be as full and as sufficient as it needs to be. The noble Earl also referred to that matter. As the clause is currently drafted, the court can dispense with the parent or guardian's consent under two circumstances: first, when they cannot be found or are incapable of giving consent; and, secondly, when the child's welfare expressly requires the consent to be dispensed with. Those provisions will apply in contested cases. The relevant test is different from that set out in the 1976 Act.
The noble Lord, Lord Campbell of Alloway, did not take us through the 1976 Act. However, under the current legislation the court may dispense with the consent of the parent where it considers that that consent is being withheld unreasonably. Obviously, the question has been asked: what would a reasonable parent do? In the In Re W case and in subsequent
We are moving forward positively from that position. There are, I believe, three safeguards. The noble Baroness, Lady Howarth, was concerned about the simple welfare test. That is neither a light nor trivial matter. The factors to be considered in Clause 1(4) are wide ranging and comprehensive. However, that does not mean that they are loose and vague. We are taking into account not only the child's wishes, feelings, needs and characteristics but also the life-long effects of adoption. These are not short-term fixes. We are looking at life-long effects. That is what concentrates the mind. We are considering harm, or risk of harm, to the child. We are considering the relationship of relatives and other relevant people to the child and the value that is placed on that.
I shall now move from the whole picture and weigh up the various parties' convention rights. The point is that the court will decide whether the child's welfare requires that the parents' consent should be dispensed with, bearing in mind all the considerations in Clause 1 and despite the weight that must be attached to any objection from a parent.
Finally—I emphasise this point to the noble Lord—it is also worth remembering that under Clause 1(6) the court will still have to consider the full range of alternatives. The noble Lord referred to that matter himself. The court must not make a placement or adoption order unless it considers that that would be better than not doing so. It must consider whether, for example, a residence order would be better.
In contested cases, the court will have the discretion to weigh up the facts in each case and consider all the factors in coming to any decision to dispense with parental consent. In contested placement or adoption order cases, within the framework that I have set out, the court will exercise its discretion in line with the Human Rights Act and ECHR law.
I reiterate what I said in Grand Committee about case law under the ECHR. The leading case of Johansen v Norway in 1996 makes clear that deprivation of parental rights and access should occur only in exceptional circumstances. It would be justified if motivated by an overriding requirement pertaining to the child's best interests. I believe that that reinforces our case that this is the opposite of a trivial test. We must abide by those requirements as well.
We come to the effect of the amendment and the narrowing down of the focus. I appreciate the intellectual struggle that has taken place in trying to find something that will satisfy the noble Earl. At present, the court would be able to dispense with parental consent only if it considered that there was a risk of significant harm. If there were not, no adoption order could be made. That is far narrower than the current ground for dispensing with consent.
Put very simply, my problem is that the amendment reduces the question of whether it is right to dispense with parental consent in terms of significant harm to a question of child protection. However, we argue, as expressed in Clause 1, that, in considering the making of an adoption order with a lifelong impact, we should look positively at what the child requires for a full and happy life with a new family. We should do that more thoughtfully, more carefully and more widely, and of course, by considering the risk of harm.
"( ) any order under the Children (Scotland) Act 1995 (c. 36) other than an excepted order,"
Page 29, line 15, at end insert—
""Excepted order" means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 (c. 36) or an exclusion order within the meaning of section 76(1) of that Act."
Page 29, line 34, after "made" insert "if the child has a parent or guardian"
Page 30, line 11, leave out from "order" to end of line 13.
Page 30, line 42, after "a" insert "married"
Page 31, line 17, after "a" insert "married"
Page 31, line 19, after "a" insert "married"
Page 31, line 26, leave out subsection (2).
Page 31, line 30, at end insert—
"( ) the person is married to a parent of the person to be adopted,"
Page 32, line 11, leave out paragraph (b) and insert—
"( ) there is a risk of significant harm to the child that requires the consent to be dispensed with."
"( ) the welfare of the child requires the consent to be dispensed with".
7.45 p.m.
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