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Lord Hunt of Kings Heath: My Lords, it has, once again, been an intense and passionate debate. I am heartened by the consensus in all parts of the House on our shared determination to improve adoption. Like the noble Baroness, Lady O'Cathain, I rejoice that there are encouraging signs that the drive to increase adoptions is working.
I listened carefully to those who argued that, if we continued to make that progress, we could rely solely on married couples. However, that simply is not the view of those who know best, those who deal with adoption day in and day out. We should listen to the noble Baroness, Lady Howarth of Breckland, to the many adoption agencies and to the British Association for Adoption and Fostering. They say that the evidence proves categorically that it is not easy to find families for children waiting to be adopted and that we must widen the eligibility criteria to encourage more adopters to come forward. They say that an increasing number of single people, some of whom live with a partner, is interested in adoption. They say that we simply cannot afford to exclude such people on arbitrary grounds related to their marital status. If we are serious about finding families for children, we must welcome applications from all families who believe that they have something to offer and judge each application on its merits.
There are many reasons why people who live together may not marry. It may have nothing to do with their commitment; it may, as the right reverend Prelate the Bishop of Oxford suggested, be because of the trauma of an earlier failed marriage. Gay couples, of course, cannot marry. Society is as it is, not as we would wish it to be. It is as it is. In 2000, more than 40 per cent of births were outside marriage. More than 40 per cent of marriages end in divorce. No doubt, noble Lords wish that that were not so, but it is.
The noble Earl, Lord Howe, asked about the civil registration of partnerships. He asked why we were not waiting for that. We are looking at that matter across government, but children do not have time to wait. The opportunity to legislate on adoption comes very infrequently. Now is the time to settle the matter once and for all. The noble Earl spoke about the breakdown of unmarried relationships and about how a co-habitee could be left with nothing and the child left in the middle. The Children Act 1989 places all children on an equal footing, whatever the marital status of their parents. All couples with children have remedies, on the breakdown of marriage and co-habitation, in respect of children. The Children Act enables orders for maintenance or for adjustments of property to be made, as well as lump sums, in favour of the children of those parents. As the right reverend Prelate the Bishop of Oxford said, a legal relationship to two adoptive parents is surely a source of strength and security to the adoptive child.
I say to the noble Baroness, Lady O'Cathain, that I cannot accept the concept of a hierarchy of relationships. In the end, it undermines the paramountcy of the child. It says that a married couple should always be considered in a higher category than an unmarried couple, whether of the same or opposite sex. If the child is central to our concerns, we cannot close the door to whole groups of potential adoptive families. Our approach must recognise that the child's interests are paramount. Each applicant must be judged on his or her merits, as the noble Lord, Lord Laming, suggested.
The noble Lord, Lord Phillips of Sudbury, always makes relevant contributions to our debates. He asked how good the courts were as a check. Under Clause 1, the courts will always be obliged to consider the child's welfare as the paramount consideration. The court can make the adoption order only if it is satisfied that that is better for the child than not doing so. The court must consider full reports on cases from the adoption agencies. Often, it is their reading of those reports that exercises and informs the judges. That will all be set out in court rules.
The Bill also allows the courts to commission independent reports on the case from a CAFCASS officer, if they think it necessary. Family Division judges are trained in children's issues. I pay tribute to the noble and learned Lord, Lord Mackay of Clashfern, for his extraordinary initiative in the area. Specialist adoption centres have been introduced, so that expert judges can deal with adoptions. I assure the noble Lord, Lord Phillips of Sudbury, that there will be thorough training for the judiciary in implementing the Bill. The transient relationships so feared by the noble Earl, Lord Howe, when speaking about co-habitees, simply would not get past the starting post of the tough adopter assessment process that I set out todaylet alone getting anywhere near a child.
There is the question of the European Convention on Human Rights and the interesting report of the Joint Committee. When the Bill was introduced into the Commons, the Government took legal advice. That advice was that the position in the Adoption Act 1976 and the Bill, as it stood, was, on balance, defensible on ECHR grounds. The committee has now given its view that the Bill, as amended by the Lords, is incompatible with convention rights. The Government do not necessarily accept the committee's reasoning, but we recogniseas we always havethat, in the light of developing case law, there is always a risk that current law and the Bill, as it stands, could be found to be incompatible. Much will depend on the circumstances of the case.
We have always recognised that, in this area, compatibility was an "on balance" judgment. We have always realised that current law and the Bill, as introduced in October in another place, could be open to challenge. The JCHR report draws attention to that.
Baroness Blatch: My Lords, I thank the Minister for giving way. Does he not agree that in the words which appeared on the face of the Bill when it came before the House, no suggestion of balance was made by any Minister of this place or another place? The word on the face of the Bill was "compatible".
Lord Hunt of Kings Heath: My Lords, the noble Baroness is a highly experienced Member of this House and a highly experienced Minister. She will know that many judgments have to be made on balance. On the advice my right honourable friend was given, on the balance of argument, he felt able to sign that certificate. I believe that I have given as full
Lord Jenkin of Roding: My Lords, I am grateful to the Minister for giving way. Is he aware that the report of the Joint Committee relied for its decision on the fact that there had been a case which has already been referred tothe Frette casebetween when the Bill was first introduced and when the amendments were passed a fortnight ago? Is the Minister also aware that the decision in that case went the other way? The only way that the Joint Committee could justify its view was
Lord Lester of Herne Hill: My Lords, does the Minister agree that the Human Rights Act expressly frees our judges not to be bound by a majority decision of a chamber of the court, but to be able to be persuaded by other cases such as that in the South African constitutional court? Does he also agree that that is why it is a difficult judgment as to where our courts would finally strike the balance in the way that the Minister had himself to do?
Lord Elton: My Lords, I speak as a non-lawyer and a layman and I want to get this clear. Is the Minister saying that when it says on a Bill that the Minister signs it off as compatible, it means that it is probably compatible?
Lord Hunt of Kings Heath: My Lords, that is a ridiculous point to make. Ministers make decisions and judgments on the basis of evidence and argument and they have to make them often on the balance of argument. That is all I have said. My right honourable friend the Secretary of State for Health was confident when he signed that certificate that he was right to do so. It was based on the balance of argument.
I turn briefly to the noble Lord, Lord Jenkin. He agrees with me up to a point. Particularly, he accepts the thoroughness of the adoption assessment process. However, I have a problem with his amendment because I believe that what he proposes is surely discrimination. Both the noble Lord and my noble friend Lord Campbell-Savours raised the issue of research. I have looked at varying degrees of research. More is neededI have no doubt about that. However, there is no evidence to suggest that children of gay men and lesbians are significantly more likely than children of heterosexual people to become homosexual. Indeed, most lesbian and gay people grow up in heterosexual families.
There is growing evidence based on outcomes for children living in same-sex households. No reliable research to date has identified significant differences between lesbian and gay parents and their heterosexual counterparts. When I look at the challenging childcare taken on by some gay adopters I do not excoriate them, I salute them for their courage and determination at what they are giving to young people. Rather than just worry about children's
The noble Baroness, Lady O'Cathain, referred to the question of whether the reason for bringing back this amendment is one not of concern for the child, but of concern for political correctness or social engineering. Perhaps I may say
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