Clause 84 - Modification of section 64 for convention adoptions

Adoption and Children Bill – in a Public Bill Committee am 11:30 am ar 11 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk 11:30, 11 Rhagfyr 2001

I beg to move amendment No. 177, in page 46, line 28, leave out subsection (3).

I shall not detain the Committee for more than a few moments because I am about to move an amendment to the Civil Defence (Grants) Bill in Committee Room 5. It has been a busy morning.

My amendment would remove subsection (3), which is completely superfluous. In the words of the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), it is ''otiose''. I believe in trying to keep things as simple as possible and I would be grateful if the Minister would carefully consider my proposal.

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

I am extremely impressed by the multi-skilling that is being demonstrated by Conservative Members. It is a shame that when a party has relatively few Members, they must rush around from Room to Room, but the electorate is to blame for that.

Clause 84 provides for the modification of clause 64 for convention adoptions. It allows the High Court to direct that clause 64(2) should not apply or should apply only to the extent that it so directs. I shall give a little background to explain why the phraseology that the hon. Gentleman wants to remove is necessary.

Clause 64 provides that a child adopted in England and Wales is to be treated in law as not being the child of any person other than the adopters. The clause is necessary under the Hague convention because adoption law in the UK recognises only full adoptions, which sever all legal ties between birth parents and

child and create a new and irrevocable legal relationship between the child and the adoptive parents. That is not the case in all countries. The clause allows any simple adoptions—adoptions that do not constitute a full legal transfer—to be treated in the UK as full adoptions. However, where any issue of status arises and the court considers that it would be more favourable to the interests of the child to treat the adoption as anything other than a full adoption, an application may be made to the High Court so that it may direct that the adoption should no longer be treated as a full adoption.

In some countries, not all adoptions are full adoptions including the severing of all ties with the birth parents. There are several reasons for that: for example, certain religious faiths do not allow children to be adopted in the way that we understand the term in the UK. In those cases, adoptions may take the form of entrustment or simple adoptions, which do not have the effect of severing all legal ties with the birth parents: they may take place in circumstances in which the birth parents want to have contact with the child and that is considered to be in the child's best interests.

Article 26 of the Hague convention provides for the recognition of both full and simple adoptions. Article 27 allows a receiving state to convert a simple adoption into a full adoption if its law so permits and provided that the birth parents and relevant parties under article 4 of the convention have given their consent to full adoption. Where the receiving state is England or Wales, the central authority—the Secretary of State—will ensure that in all cases the birth parents are informed of the effects of a simple adoption in England and Wales and will seek to obtain their consent to a full adoption prior to a convention adoption being made in a country outside the British islands or a convention adoption order being made here.

Where the receiving state is not England or Wales, it is possible that the child might be brought into this country in circumstances in which simple adoptions are recognised both in the state of origin and in the receiving state, so no consent to full adoption has been given. In such cases the procedure under the proposed legislation would be that the adoption would be treated as a full adoption by operation of law, but an application might be made to the High Court in relation to the issue of status where it was considered to be more favourable to the child to treat the adoption otherwise than as a full adoption.

Clause 84 re-enacts provisions in the Adoption Act 1976 which were amended by the Adoption (Intercountry Aspects) Act 1999. It provides that where the court considers that it would be more favourable to treat the adoption as anything other than a full adoption, an application may be made to the High Court for directions to be made that mean that the adoption is no longer treated as a full adoption.

The effect of the amendment would not be a simple tidying up, as the hon. Member for North-West Norfolk (Mr. Bellingham) asserts. It would remove from clause 84 a definition of full adoption; it would not be clear what was meant by full adoption and there

would be doubt as to the ambit of the clause. The term ''full adoption'' would be open to interpretation, which could lead to inconsistencies or discrepancies in the treatment of different types of adoption. Given my assurances about what I accept is a complex and relatively rarely used provision, I ask the hon. Gentleman to withdraw his amendment.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

In the light of the Minister's explanation that there is a good underlying reason for the subsection, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The Minister has alluded to subsection (2)(b). The subject with which it deals is both one to which we might return later and one that we might have touched on earlier had the knife of the programming motion had not come down. Will the Minister consider article 4(c)(2) of the convention, under which

''such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,''.

Will the Minister give the Committee her definition of the term ''freely''? The giving of consent is a bone of contention in UK adoptions, let alone in the more complicated overseas ones, and various bodies have made representations to us to ask what ''freely'' amounts to. A person who is seen to be giving consent freely might later claim that it was given under duress. Is the Minister satisfied that there will not be a challenge to the term ''freely'' as used in article 4 of the convention and subsection (2) of the clause?

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

I am slightly confused about which part of the Bill is under discussion. Was the hon. Gentleman's question free-standing?

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

We are debating clause 84 stand part, and the hon. Member for East Worthing and Shoreham (Tim Loughton) seeks clarification of subsection (2) in relation to the Hague convention.

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

I had jumped ahead. I understand that ''freely'', in the context given by the hon. Gentleman, means that the consent has not been encouraged through the offering of rewards or coerced using force. However, his point about the nature of consent given in such circumstances is important. We had a lengthy discussion on the conditions surrounding the giving and witnessing of consent in relation to domestic adoptions. It might be appropriate for me to write to the hon. Gentleman outlining what similar conditions we would expect to govern consent in relation to intercountry adoptions.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I would be grateful, because the Minister referred to financial inducements, which are already covered by article 4(c)(3) of the convention. To correct her slightly, we did not fully explore the issue of consent freely given to domestic adoption because

of the programming motion. It would be helpful if she provided a definition before we encounter the phrase again.

Question put and agreed to.

Clause 84 ordered to stand part of the Bill.