The amendment would introduce a new clause and I am grateful to be noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for adding their names to it. The issue of information available or not available to the descendants of adopted persons was a matter brought to the attention of the adoption legislation Select Committee. We recommended that the Government amend legislation in order to bring direct descendants of adopted persons within the scope of the provisions that allow access to information or, more accurately, to intermediary services related to seeking information about the adoption.
Those who are entitled to seek information cannot simply go straight to the records without advice about the possible implications and the impact of their having information. They are required—and there are regulations dealing with this—to seek the services of an intermediary agency. Quite a lot of people can seek intermediaries’ services—a lot of relatives, but not necessarily those who are close to the adopted person. The birth mother’s half-sister and her husband can seek information and so can the birth mother’s stepfather and the birth father’s wife, when that wife is not the birth mother, but not an adopted person’s child.
The noble and learned Baroness and I first became aware of this from the situation of a lady in her 60s who discovered that her father had been adopted. She discovered this after his death when she found his birth certificate. She realised that it gave no details of his parents or the place of his birth, saying only “England”—a so-called amended certificate. Her reaction was to sympathise with him, as he had probably found out that he was adopted very late in his life, but she also felt annoyed and cheated,
“as if my relationship with him had been a lie”.
“Why hadn’t he told me? Why hadn’t he told my mother? She’d been married to a man for 50 years she hadn’t really known. I felt I owed it to her to find out”.
This lady started a very energetic search, all of which led to dead ends. She made an application to the court that the Registrar-General should disclose the information. The judge was very sympathetic—I have read the judgment—but, because of how the law stands, was unable to grant the application. She started a support group.
I have warned the Bill team that the Minister’s answer to this amendment is going to be considered very keenly by a lot of people outside this House who are affected by this situation—far more people than I think anybody had expected when this issue started to raise its head. I am obviously not going to give the Committee all the examples that I could of how people are affected but I shall mention one which came to me yesterday.
It concerns a social worker working with a man in his early 30s who has no birth information in relation to his father. His father died unexpectedly a few years ago aged only 48. He had started the process of looking into his adoption but died before he was able to access any information, and his stepmother had cleared out all the paperwork. I am told that in the light of the father’s unexpected death, this young man would like to continue the search on his father’s behalf, and he would also like to access any medical information. Of course, there are a lot of reasons why someone might want to have information. It is not just that adoption has become much more transparent over fairly recent years—it used to be a case of “leave well alone”. It is understood not just that there are practical or medical reasons but that the understanding of one’s relationship with one’s parent is very important. Family dynamics are important, and it is important to be able to pass on a proper family history to one’s children. We talked about identity earlier this afternoon; this is an issue of identity as well.
BAAF, the British Association for Adoption and Fostering, is very supportive of a change. The social worker who supported the lady to whom I have referred, who made an application to the court and gave evidence herself, said:
“Descendants can benefit a great deal from accessing information about their genetic origins. It can help people feel more connected and rooted, and provide a sense of belonging, helping bridge the past, present and future. It can help them understand why they have certain physical attributes and particular skills and abilities. It can also help people understand some of the adversities they have faced in life, for example, if someone suffered from depression and learned that their great grandfather committed suicide”.
The change that the amendment proposes is supported by many agencies, including major ones such as Coram, Barnardo’s and the Salvation Army. In 2010, BAAF asked the Law Commission how various aspects of adoption information—and this was one of them—might be considered by the commission. I understand that the commission saw it as a worthwhile project but lacked the resources to undertake the work.
I asked a Written Question earlier this year and the Answer from the Minister was that he understands why descendants of adopted people want to find out about their relatives’ history, but that there is a need to balance this against the rights and wishes of adopted adults and the adults’ birth family. It is a complex and sensitive issue which needs careful consideration before any change in legislation is considered. Let me emphasise again that I am not seeking direct access to information; I am seeking access to intermediary services, which will be provided on a case-by-case basis.
Before today’s debate, I sent the Minister and other noble Lords a question and answer sheet provided by BAAF, which I will not attempt to read into the record. However, I asked him to tell the Committee of any points that they have made with which the Government disagree. I suspect that one of those may be the numbers who will be involved. The Government at one stage estimated as many as 2 million people. BAAF has set out the calculation it has made, which falls far short of that figure. I would be grateful, therefore, if the Minister could tell the Committee whether the Government have an authoritative basis for the numbers that might be involved or a best guess. I accept that this is a question of cost, although the applicants will bear the cost by paying for the services.
Just as the Minister responded to me, in response to the Select Committee the Government referred to the sensitivities involved. It would be helpful if the Minister could spell these out and, in particular, how they differ from those already managed by the intermediary agencies providing intermediary services.
Finally, the Government have referred to the possibility of the Law Commission including the issue in its next programme of law reform. Reference to the Law Commission would not be unwelcome but, however sympathetic it may be, am I right in thinking that the Government cannot guarantee that the Law Commission will take on this work? I am sorry to have taken up the Committee’s time late in the day, but I think it was important to spell out a good deal of what lies behind this amendment. I beg to move.
Baroness Butler-Sloss: My Lords, I put my name to this amendment. In paragraph 274 of our post-legislative scrutiny committee we said:
“We believe that the exclusion of descendants of adopted persons from the definition of relatives in section 98 of the Adoption and Children Act 2002 creates an unfair anomaly in the legislation. This can be a cause of significant distress”.
Indeed, we had evidence to that effect. We continued:
“We recommend that the Government amend section 98 of the Act to bring within its scope the direct descendants of adopted persons. The Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005 should be amended accordingly”.
As the noble Baroness, Lady Hamwee, has already said, there are a number of people in respect of whom this small but important amendment really matters. It came to my attention through a friend of mine who is a lawyer—he is actually present in this Room. He wrote to me including the letter from the lady to whom the noble Baroness has referred. There are others out there; it may be that there will be a number of people who will benefit from this, and we know there are. There may be cost implications, except that they will be likely to pay so it would be their cost.
Perhaps more importantly, this is an anomaly. Other people out there who are related to those who are adopted, and to birth parents and so on, have the right to this information. The issue is not whether it is sensitive or whether people should know. It is why so many groups should be allowed to find out and this group not be allowed to find out. The amendment cuts through this sensitivity and complexity. There is actually no complexity; it is an anomaly which requires to be put right. For the Government to hide behind reasons of sensitivity and complexity when all the information is there anyway for everybody else seems at the very least disingenuous. I strongly support the amendment.
7.30 pm
Baroness Howarth of Breckland: My Lords, I think that most of the points have been made, but I want to go back to the days when some of us were engaged in the 2002 legislation. The noble Baroness, Lady Walmsley, will remember that when we were trying to get some of these provisions through, this cohort of people were among those who had not been prepared in the same way as those who have been prepared thereafter. However, the world has changed significantly since 2002, particularly in relation to health information, as both my colleagues have pointed out. It is a human right for an individual to know about their genealogy and therefore to be able to trace issues relating to health. This will be particularly true of girls and breast cancer, when different kinds of medical intervention will be available. Although I understand the sensitivities, we are not asking for access for absolutely everybody, as the noble Baroness, Lady Hamwee, pointed out; we are asking for an intermediary. When that route is not taken, individuals attempt to find out by other ways. I have a story of a man turning up at the gate of his birth father—a very eminent man—and saying, “I am your son”, having found out by other ways, and being told, “You may be, but I don’t want to know you”. One can see how an intermediary could have made a real difference to that relationship and the hurt that can come from that kind of situation.
This anomaly needs to be put right. It is absurd that everyone else can find out except the descendants—so you can go and get someone else to do it for you. It just needs ironing out, and the arguments that I have heard so far have passed.
Lord Nash: I thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for bringing this important matter to the Government’s attention, both earlier this year through the report of the Lords Select Committee on Adoption Legislation and through this proposed clause.
I entirely understand why the descendants of adopted people may want to find out more about their biological heritage, particularly where there may be a hereditary medical condition. The Government are open to the possibility of reform in this area, but we believe that more detailed thought is needed about the implications and practicalities of any legislative change. For example, we must think carefully about how more information might be provided to descendants, and we need to balance this against the rights and wishes of the adopted adults themselves and their birth families.
This is a complex and sensitive area which needs careful consideration before any change to legislation is considered. That is why the Government are exploring with the Law Commission whether this issue might be included within a possible project as part of the commission’s 12th programme of law reform.
The amendment would enable descendants of an adopted person to find out about the adopted person’s background. It applies to those adopted before commencement of the 2002 Act. Such adoptions were carried out privately and secretly, with very little information shared with the adopted child or his or her birth parents. If a mother, who may never have told anyone about an adoption, was approached out of the blue by her son asking about his adoption, that could have a devastating effect on the individual and the whole family.
We fully appreciate the wishes of descendents and there will be examples—
Baroness Butler-Sloss: I apologise to the Minister. Under this proposal, there is no suggestion that there should be any direct relationship between the person seeking the information and the person who has been adopted. It would be done through an intermediary, which is the whole purpose. I urge the Minister not to go down that line because that is not what we are asking for.
Lord Nash: I assure the noble and learned Baroness, Lady Butler-Sloss, that we are not seeking to be disingenuous about this and we do regard the issues as complicated. My noble friend Lady Hamwee asked
what evidence the Government have to suggest that if we make this provision it could open the floodgates or that the new clause would lead to unwelcome contact. The answer is that we do not have any evidence, which is why we would like the Law Commission to consider it and are prepared to provide funds. I hope that I have provided sufficient reassurance on the amendment and I therefore urge the noble Baroness to withdraw her amendment.
Baroness Hamwee: My Lords, perhaps I may reinforce, if it is necessary because I think that it will be clear enough in Hansard, the point made by the noble and learned Baroness. The Minister’s scenario is exactly that which we are seeking to avoid with this amendment. I am sorry that the Minister has not been able to explain the points about sensitivity and complexity on which the Government are relying. He has told the Committee that the Government will give the issue more detailed thought. I think I have got it right that the Government will consider how detailed information should be made available to the descendant of an adopted person. I do not believe that it is for the Government to think and advise how information should be made available to that person. Quite rightly, in 2002, the Government set up the structure of involving an intermediary.
Of course, I cannot press the matter to a vote tonight because we do not do that in Grand Committee. It would be remiss of me not to ask the Minister if it might be possible for me to meet him following this stage to reinforce and perhaps explain better than I was able to do in what I appreciate might have been a rather rushed introduction. Perhaps we may meet before Report to see if there is a way in which we can work with him to be as persuasive as possible to the Law Commission, if that is the way it is to go, that it should take on this work. I do not know what private as distinct from public communications there may be with the Law Commission. I certainly would not ask the Minister to say so tonight, but it is morally and practically wrong not to sort out what the noble and learned Baroness so rightly describes as an anomaly.
Lord Nash: I should be delighted to meet the noble Baroness. It seems to me that there is a clear misunderstanding and it is essential that I meet her.
Baroness Hamwee: I am very grateful for that and on that note I am happy to withdraw the amendment.
Baroness Northover: This may be a convenient moment to adjourn the Committee and to suggest that we meet again on Monday 14 October at 3.30 pm.
Committee adjourned at 7.39 pm.