Clause 82 - Restriction on taking children out

Adoption and Children Bill – in a Public Bill Committee am 10:45 am ar 11 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset 10:45, 11 Rhagfyr 2001

I beg to move, amendment No. 162, in page 44, line 38, leave out subsection 1(a).

Having spent last week at the Parliamentary Assembly of the Western European Union, I have drawn the short straw this morning in terms of moving amendments. I am perturbed by the provision that the amendment would delete—a restriction on taking children out. Clause 82(1) refers to:

''A child who—

(a) is a Commonwealth citizen, or

(b) is habitually resident in the United Kingdom,''.

My concern focuses on (a). I thought that in making the new law, particularly in the clauses on intercountry adoption, we were making law for the United Kingdom, not for passing foreigners. To include children who are Commonwealth citizens and who by definition are not habitually resident in the United Kingdom, we are making law for passing foreigners. Why specify a Commonwealth citizen? Why not say a citizen of the European Union or some other definition of passing foreigner?

I looked at the Hague convention and found nothing to say that the provision was one that we should be making. In fact, the provision seems to be contrary to article 14 of the convention, headed ''Procedural requirements in intercountry adoption'', which states:

''Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.''

I thought that meant that the United Kingdom could not authorise the adoption of a child who was a citizen of another Commonwealth country or who was habitually resident in another Commonwealth country, unless by acting in contravention of the Hague convention. I do not imagine that it was the intention of the Minister or of those who drafted the Bill that we should contravene that convention.

The Bill contains a dog's breakfast of geographical restrictions; this is reflected in some of the Opposition amendments. It refers sometimes to ''the British Islands'', sometimes to England and Wales, sometimes to the United Kingdom—and sometimes I am confused about exactly what it means.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I, too, am confused and have tabled some amendments. ''The British Islands'' includes, historically, the Republic of Ireland, although we now prefer to talk about ''these islands''. Some believe that the ''United Kingdom'' includes the Isle of Man and the Channel

Islands, whereas others do not. Does my hon. Friend consider the expression ''United Kingdom'' to include those three island groups?

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

I thank my hon. Friend for his intervention. There is an attempt elsewhere in the Bill to suggest that when reference is made to the United Kingdom, that includes the Isle of Man and the Channel Islands. However, in other places the term ''the British Islands'' is used. From the way in which it is expressed in the Bill and on the basis that we cannot make law for another sovereign state—the Republic of Ireland—I assume that phrase to mean, the United Kingdom and the Isle of Man and the Channel Islands.

I am concerned that we have picked on another group of sovereign states and sought to include their citizens in the Bill's ambit. There does not seem to be any reason for picking states that are members of the Commonwealth, other than our historical associations with such states. We have more contemporary associations with children who are citizens of European Union member states or of the Irish Republic, but they will not be covered by the clause.

My argument in favour of removing subsection (1)(a) is expressed most forcefully by reference to the clause's inconsistency. Not only is there inconsistency between the geographical definitions that appear in the Bill, but article 14 of the Hague convention seems to preclude us from including such a provision based on the criterion that a child is a Commonwealth citizen. Of course we can impose the restriction contained in clause 82 in respect of a child who is habitually resident in the UK, but we are treading on dangerous ground in international law if we try to contravene article 14 of the Hague convention and widen our jurisdiction to children who happen to be Commonwealth citizens and happen to be in the UK or are under the jurisdiction of a British court at the time.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

What if a country's membership of the Commonwealth is suspended after the legislation has come into force? Would such a country be covered by the legislation—for example, would the Bill apply to a citizen of Pakistan, which is currently suspended?

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

My hon. Friend poses an interesting question. I have no doubt that there would be an interesting debate in a court's consideration of a case centering on the status of a citizen of a Commonwealth country that had been suspended from the Commonwealth.

The Commonwealth is an association of countries, some former dominions of the British empire and some former colonies. Some retain the status of British overseas territories, for which responsibility rests with the British Government, and in latter years some have chosen to join the Commonwealth having had no previous imperial associations with the UK or Great Britain.

I have explained how the subsection is inconsistent. I believe that the clause flies in the face of our international obligations under the Hague convention and I therefore ask the Committee to accept the amendment.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

We seem to be getting bogged down in clause 82, so perhaps I should clarify its purpose. Clause 82 is not about citizenship or which sort of people it would be possible to make adoption orders for in this country. It imposes restrictions on removing children for adoptions in other countries, whether convention adoptions or others. Our debate focuses on which children should be protected under the restrictions that the clause imposes on taking children out of the country for the purpose of adoption.

Clause 82 ensures that children who are either Commonwealth citizens or habitually resident in the UK cannot be taken out of the UK for the purposes of adoption unless those involved meet certain conditions. Those conditions are that the proposed adopters are parents, guardians, relatives or step-parents of the child, or that they have obtained a court order under clause 81—which sets out the process for transferring parental responsibility—so that they may adopt the child in their state of origin.

The clause replicates and strengthens section 56 of the Adoption Act 1976. Specifically, it adds protections for those children resident in the UK who are not Commonwealth citizens. In other words, section 56 of the 1976 Act already protects Commonwealth citizens. I do not want to be mischievous, but it is unclear to me whether it is now the official Opposition view that citizens of the Commonwealth should be reclassified as ''passing foreigners''. It seems disrespectful of the nature of the commitment that we owe to citizens of the Commonwealth to categorise them in such a way.

The clause also ensures that it is not possible to avoid being guilty of an offence by arranging for someone else to remove the child from the country. Anyone removing the child from the UK would be caught by the restrictions, as would those who arranged or negotiated for the child to be removed, and the person who ultimately adopted the child.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

I was conscious of the Minister's disapproval when I spoke of Commonwealth citizens as though they were passing foreigners—it was meant lightheartedly. I am concerned about why that particular group has been singled out. We have historical links with the Commonwealth, but by a succession of treaties we now have links with citizens of the European Union. Perhaps the Minister can help by telling me what sort of child would be a Commonwealth citizen and not habitually resident in the United Kingdom.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

I am always happy to help the hon. Gentleman, and I was just coming to that point. The use of the terms ''Commonwealth citizen'' and ''habitually resident'' is necessary, for reasons that I will explain, to cover people who I suspect even the hon. Gentleman would agree should be protected under the clause.

The amendment would remove the restrictions on removing children who are Commonwealth citizens from the UK for the purposes of adoption. That would remove a protection that currently exists under the 1976 Act and might put at risk some children who are

in the UK but who are not considered to be habitually resident here. A British citizen who is not habitually resident in the UK would be protected by clause 82 without the use of the term ''Commonwealth citizen''—that was the reason for its inclusion in the 1976 Act.

The term ''Commonwealth citizen'' includes British citizens, British dependent territories citizens, British nationals overseas, British overseas citizens and other British subjects. That means that a British child who has not been resident in the UK for long enough to be considered habitually resident here would still be protected by the clause. The removal of ''Commonwealth citizen'' would mean that such people would not be protected from removal from the country for adoption overseas.

Given the historic links between the UK and the Commonwealth, we know that many children who are Commonwealth citizens come to the UK for schooling and other purposes. It is important to ensure that once the Bill comes into force they will be, as they are now, afforded protection from being taken overseas by individuals for adoption.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset 11:00, 11 Rhagfyr 2001

I hear the Minister's definitions of the people who would be in the UK because they are the children of Commonwealth citizens. However, most of her definitions could apply equally to citizens of the EU, who might be here through their rights of free movement within the EU. Why have the Government not included a child who is an EU citizen?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

I always enjoy it when Opposition Members argue in favour of our increasing the significance of Europe as opposed to the Commonwealth. I will correct myself if I am wrong, but I suspect that ''European Union citizen'' does not have the legal strength of ''Commonwealth citizen'' and would not imply the protection that we are trying to achieve under clause 82. If the hon. Gentleman were arguing for a shift of focus away from the Commonwealth towards Europe, that would be interesting.

Photo of Mr George Stevenson Mr George Stevenson Llafur, Stoke-on-Trent South

Order. If the hon. Gentleman were trying to do that, I would put a stop to it quickly.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

You are right to bring us up short, Mr. Stevenson.

I hope that I have made the argument for ''Commonwealth citizen'' being necessary to protect British citizens who would not otherwise be considered habitually resident. I have also explained why the provision continues measures in the 1976 Act and why the Government consider it reasonable to provide the protection in the clause to Commonwealth citizens, given the historical links between the UK and the Commonwealth. For a range of reasons such as medical treatment or schooling, such children could be in the UK and need its protection.

I hope that I have also reassured the Committee that the clause is about restrictions on the removal of children for adoption. It does not have some of the effects on convention adoptions that the hon. Gentleman suggested, so I hope that he will feel able to withdraw his amendment.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

As our discussion of the amendment continued, I became more convinced that the subsection was somewhat outdated. The Minister chided me because I seemed to want less emphasis on the Commonwealth and more on the European Union, but all I want is to make good law and to ensure that the provisions are up to date.

As the Minister will recall, the 1976 Act was brought into force when this country had been a member of the European Community for only three years. Now, almost 30 years later, the European Union has grown in size and importance and the citizens of its member states—I will not stray into calling them EU citizens—have rights of free movement enabling them to live wherever they want in the EU. The Minister's justification for the use of the words ''Commonwealth citizen'' could apply equally to other UK obligations.

I hope that the Minister will entertain the points that I have made, especially the one about article 14 of the Hague convention, which I do not think that she answered. Perhaps later, in another place or on Report, she will feel minded to re-examine my argument that the provision is not only contrary to article 14, but an anomaly given our current treaty obligations to other EU member states. I do not want to force the matter to a vote, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 ordered to stand part of the Bill.