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Lord Campbell of Alloway: My Lords, I rise to support the amendment. There is a hint of retrospection in paragraph 4 and it has a restrictive element. What is the purpose of that paragraph as it stands? I shall of course listen to everything that is said by the Minister. At the moment, it seems to me that the amendment should be supported.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Baroness, Lady Noakes, for her support of counselling. I am sure she is right that it is widely welcomed. My understanding is that where counselling is voluntary, two out of three who are offered it take up the offer, which confirms the view that she has taken.
The noble Baroness describes this as a modest amendment. I suppose it is. But it is not quite as modest as the amendment she moved in Grand
Committee. That amendment—Amendment No. 86—would have replaced the current mandatory requirement for an adopted person to undergo counselling. It would have put persons adopted before 12th November 1975 on a similar footing to those adopted after that date. The amendment then would have required the registrar-general to inform the applicant that counselling services are available and to recommend strongly that the applicant use them. That is in line with her speech today.The amendment before us today completely removes the requirement for an applicant adopted before 12th November 1975 to receive counselling before the registrar-general provides the information—primarily his birth name, but it is necessary for the applicant to obtain a certified copy of the record of his birth. My problem is that the amendment would overturn a scheme that is based on a clear commitment made by Parliament in 1997, not to legislators, but to adopted persons and to their relatives.
The requirement for compulsory counselling was introduced by Section 26 of the Children Act 1975 that was enacted in the Adoption Act 1976. Section 51 of the 1976 Act gave adult adopted persons a right to obtain the information necessary to access their birth records. For adopted persons living outside the United Kingdom, the Children Act 1989 amended the 1976 Act to allow the registrar-general to approve counselling services overseas. That was enacted in 1991.
Individuals who do not know their birth details and were adopted before 12th November 1975 are required to see a counsellor before they are given access to their birth records. Individuals adopted on or after 12th November 1975 are informed of the counselling services that are available to them, but counselling is not a pre-condition to disclosure of the birth record information.
The reason for the distinction is that until 12th November 1975 adopted people did not have a right to access their birth records. When Parliament provided the new right, it gave it to individuals prior to 12th November 1975. That was the time of the retrospection. There is no retrospection now. It was to balance the concerns of birth parents who had previously had anonymity. The concern we must have is that it was the birth parents who had had anonymity before who had to be protected. Parliament decided that counselling would be compulsory for those given the retrospective rights. An adoption that took place before 1975 could have done so in the expectation that there would be little prospect of the birth parents' identity being revealed to the adopted person.
Many adoptions before that time happened in an atmosphere of secrecy. The noble Baroness, Lady Noakes, is quite right about that. Parliament considered this issue carefully before deciding to allow the adopted adult access to his birth record. In recognition of the fact that it would be changing the position of adoptions after the event, Parliament decided that because of the potentially sensitive
situations that might arise the adopted adult should have counselling before being able to have access to the sensitive information about his birth parents.As I have said today and in Grand Committee, Parliament made this clear commitment in 1975. It was that persons adopted before 12th November 1975 would be required to discuss the circumstances of their birth, their adoption and their intentions with a trained counsellor before they could receive their birth record information.
I hope that noble Lords will see from that explanation that this is a long-standing obligation which we have to people who had expectations of anonymity in the past. We are maintaining these conditions. This amendment would do serious damage to that.
3.15 p.m.
Baroness Noakes: My Lords, I thank the Minister for that reply. I am of course aware that the amendment I have tabled for Report stage is different from the one I tabled in Grand Committee. That is because on reflection I could see no reason why the intermediate stage of giving a strong recommendation as to counselling should be preferred to the position that obtains for all those adopted adults after the 1976 Act.
It is somewhat illogical that in order to protect the birth parents the adopted person has to go through counselling. There is no logical connection between the two.
Lord McIntosh of Haringey: My Lords, it is because the information that is being given, which is the birth record, gives information about the birth parents. That is why.
Baroness Noakes: My Lords, yes. But the purpose of counselling is to prepare the adopted person for the difficulties that may flow from attempting to seek a reunion with the birth parent. I am disappointed in the Minister's reply. Those adopted adults, as I said earlier, must be over 27 years of age and many considerably older—their parents even older still. I had hoped that after this period of 27 years and in a completely different social environment we could have updated the law and not fallen back on the social position of 1975. However, I shall consider carefully what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 [Adoption Contact Register]:
Earl Howe moved Amendment No. 90:
- Page 45, leave out lines 37 and 38.
It is almost self-evident that people who seek contact with family members lost through inter-country adoption face infinitely more difficult searches than do
those who make the same sort of search in a domestic context. Currently, use of the adoption contact register does not extend to adopted people abandoned as babies in the UK, nor does it extend to overseas adoptees.The Minister confirmed in Grand Committee that the registrar-general had an intention to provide this service for future inter-country adoptions if sufficient information is made available to him by those who apply for registration on the register. That is of course extremely welcome; but I should like to urge the Minister to go a little further. The contact register is to be available for "future inter-country adoptions" but not apparently in respect of those people adopted overseas prior to the implementation date of the 1999 Act or this Bill. That is most disappointing, and I hope that the Minister will feel able to reconsider.
Of course birth relatives living on limited incomes in developing countries are likely to find the current fees to use the register prohibitive. If there is not to be a separate contact register for inter-country adoption, there will need to be a much more modest fee to facilitate its use by inter-country adoption birth relatives. Indeed, without that it is hard to see how the register will in practice be effective. Can the Minister say anything on that issue?
My other concern relates to the information that has to be provided in order to access the register. We still do not know what will constitute "sufficient information" in this context. That is a critical piece of the jigsaw, because without an understanding of that we do not know how many people will be denied access to the contact register. Once again, I hope that the Minister can enlighten us.
My amendment addresses the main issue here, which is to ensure that the current contact register will be accessible to inter-country adopted people in the UK and their birth relatives overseas. I regard this as extremely important.
Lord Campbell of Alloway: My Lords, I rise briefly to support the amendment. Again, it is restrictive. It relates to a concept of such information which is totally at large. That is an unsatisfactory manner in which to legislate. I hope that it will not be said, as was said about the previous amendment, that because way back in the past a retrospective measure was adopted by Parliament, it must be perpetuated in an amending Bill such as this.
Baroness Thomas of Walliswood: My Lords, we have tabled an amendment in this group: Amendment No. 91. Its effect is broadly the same as that of the amendment moved by the noble Earl, so I shall not prolong the discussion further.
Lord McIntosh of Haringey: My Lords, Clauses 80 and 81 are concerned with supplementary provision for the adoption contact register. I was a little puzzled by the noble Earl's reference to overseas adoptions because, strictly speaking, the part of the Bill concerned with adoptions with a foreign element commences with Clause 83 and Chapter 6. But of
course he is right in that the contact register is available to any person who can satisfy the conditions in Clause 80. That means that a birth relative of a person subject to intercountry adoption could apply to go on the register. If that is what the noble Earl meant, I understand his point more clearly.Clause 80(5) sets out the conditions under which the registrar-general may make an entry for a birth relative in part 2 of the adoption contact register. The register provides a framework designed to facilitate contact between adopted persons and their relatives where that is what they both want. There are two parts of the register. Part 1 contains the names of adopted persons who have given notification that they want—or do not want—to contact all or some of their relatives. Part 2 contains the names and addresses of persons related to an adopted person who have given notification that they want—or do not want—to make contact with a specified adopted person.
Amendment No. 90 omits part of Clause 80(5)(b), which provides that the registrar-general can make an entry in part 2 of the register only where the applicant has such information as could enable him—that is, the registrar-general—to obtain a certified copy of the record of the adopted person's birth. The amendment would remove the means by which the registrar-general is satisfied that the person who claims to be the relative of an adopted person is in fact related to him and would be able to obtain a certified copy of the record of his birth.
Amendment No. 91 amends Clause 81, which sets out supplementary provisions for the adoption contact register. If it were correctly placed in Clause 80, rather than in Clause 81, it would merely repeat the existing provision in the Bill.
Without the essential details needed to establish a relationship between the adopted adult and the applicant, the registrar-general cannot be satisfied that a birth relationship exists, because there will be no evidence. Without that safeguard, a person claiming to be a relative could expect to be registered on part 2 of the contact register regardless of whether or not they were genuinely related to the adopted person.
The amendment would weaken the safeguards of a facility intended by Parliament to assist genuine contact between members of the same birth family—when, as I said, they both wish to make such contact. It could allow the register to be misused. For example, if an adopted person were led to believe that the other person was a relative with whom he wished to have contact, that could lead to emotional entrapment of the adopted person.
Where applicants are unable to satisfy the statutory requirements for entry to be made on the contact register, the registrar-general has referred individuals to the National Organisation for the Counselling of Adoptees and Parents, which operates its own contact register. Such applicants are advised that the threshold for proof of a relationship between the two parties is lower on NORCAP's register.
In the light of my explanation that the amendment could cause serious difficulties with the proper operation of the adoption contact register, I hope that it will not be pressed. Before I sit down, perhaps I may correct something that I said a minute ago. When I said that the applicant can make an entry in part 2 of the register where the applicant has such information as could enable the registrar-general to obtain a certified copy, I should of course have said "enable the relative to obtain a certified copy of the adopted person's birth".
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