Adoption and Children Bill

[back to previous text]

Ms Munn: Will you clarify what the Bill means in terms of which of those people who wish to adopt from abroad will be able to undertake home studies?

Cathy Morgan: The only people who will be able to complete a home study, whether anybody wishes to adopt from the UK itself or from abroad, will be voluntary adoption agencies and local authorities.

Sandra Gidley (Romsey): The Bill makes it quite clear that only married couples can adopt jointly, and I am concerned that, ultimately, the best place might not be found for some children. What would be the repercussions of allowing unmarried couples to adopt jointly, and why was the decision taken against providing for that in the Bill?

James Paton: The decision was taken to continue with the current legal position whereby only a married couple may adopt jointly. Broadly, the adoption law review looked at this in the early 1990s and suggested that the current position should remain. In relation to the joint adoption of a child, it was felt that married couples, given the publicly recognised commitment that they had given and their legal obligations to each other, were more likely to provide the child with the stability and security that it needed. That was the adoption law review's conclusion. The Government's view was that those proposals were broadly right, but the Secretary of State said on Second Reading that the issue is subject to debate in this context, as well as in wider contexts, and that having heard the views of the Committee, the position would be considered in that light.

It is worth saying that in providing for joint adoption solely by married couples we are in line with the majority of European countries, even the majority of those that have introduced partnership registration schemes. Many of those specifically exclude joint adoption, although some include it.

Sandra Gidley: It occurs to me that we review this legislation once in a lifetime, and it will be a long time before we will be able to review it easily.

We now have the Human Rights Act 1998, which we have to take into consideration. Are you confident that the Bill's provisions are acceptable according to article 8 of the Human Rights Act?

James Paton: As with all the provisions in the Bill, the Secretary of State has signed the section 19 declaration that the provisions are on balance compatible with the ECHR and, as I said earlier, that view is clearly shared by a large number of other European countries.

Sandra Gidley: Are you confident? You said the Secretary of State had signed it; you did not actually say whether you were confident.

James Paton: That is a different thing.

The Chairman: Can you say that again, Mr. Paton?

James Paton: The declaration cannot be signed unless the advice is that on balance the provisions are compatible with the convention. There may be challenges in this area, as there may be in any area, but that is the position.

The Chairman: I raised this question in the debate in the last Parliament in terms of the conflict between the provision and the welfare principle in terms of the child's best interests, whereby if it was in the child's best interests to be adopted by an unmarried couple, it could not happen.

James Paton: One partner could adopt the child and the other could acquire parental responsibilities.

The Chairman: That is not quite the answer, though, is it?

James Paton: The law review's conclusions were based on promoting stability for the child where a joint adoption was being proposed and on the fact that married couples had a legal relationship and a publicly-signalled commitment to each other that meant that it was more likely that stability and security would result.

Ms Munn: Precisely on that point, looked-after children can be placed with foster parents who are unmarried. The child may then be in a situation that everyone agrees should be made more permanent. The Bill would allow for a special guardianship order, but it would not allow for the child to be adopted. Is that not a problem in terms of promoting permanency? For some children, being adopted is what will promote their feelings of stability and permanency.

James Paton: It would not prevent them from being adopted; it would prevent them from being jointly adopted by an unmarried couple.

Mr. Brazier: May I ask about the legal arrangements in dissolution following an adoption? Statistically, it is much more likely that an unmarried union will dissolve than a married couple will divorce, but there is clear provision in divorce courts for what happens to children, property and so on. What will be the arrangements concerning the parting of an unmarried couple who have either adopted or chosen the new special guardianship order, as they will be allowed to do? That will surely be very complicated; divorce law cannot simply be picked off the shelf under such circumstances.

James Paton: No, it cannot, although I must turn to my legal advice here.

Sandra Walker: This is quite a tricky one. The current adoption law provides for joint adoption by married couples, so that fits into the framework of legislation generally. If the couple subsequently divorce, the child will be treated as the child of the family and the arrangements for the child's continued upbringing and maintenance will be dealt with in consequence of that dissolution.

Obviously, if a couple are unmarried, a much more difficult situation would have to be dealt with. For example, in relation to the rules governing property, it is open to anybody to make a will so that they could dispose of their property in accordance with their testamentary disposition. If they die intestate, the rules relating to statutory intestacy that would normally apply to spouses would not apply, but the issue, including adopted children, would be treated in the same way, under statutory intestacy.

In relation to the special guardianship orders, we have not made any specific provision for inheritance rights. Obviously, it would be open to special guardians to dispose of their property in accordance with their testamentary disposition.

Mr. Brazier: To focus on the last point, will not complicated questions arise on the dissolution of an unmarried partnership in which both partners had jointly entered into a special guardianship of a child?

Sandra Walker: Those are issues that we will need to look at in the context of registered partnerships. At the moment, they do not exist. When we talk about joint residence orders and joint special guardianship orders, we are talking about couples doing those jointly and orders being made jointly, not in terms of a registered partnership that adopts—or, sorry, in whose favour a special guardianship is made.

Mr. Brazier: It seems that we are putting another layer of legal complexity on to a child who has already had a lot of that in their life.

Kevin Brennan: I accept that last point, but do not such situations arise all the time anyway with children born to unmarried couples who subsequently part? I accept the hon. Gentleman's point that the children are already going through a lot of legal processes, but the provision does not introduce totally insurmountable or unfamiliar problems.

Sandra Walker: I would not dissent from that.

Tim Loughton: How strenuous is the vetting system for the unmarried partner of an adopter? If you are not proposing to change the status quo in the Bill, are there any proposals to tighten it up? It is often the unmarried partner who is the threat where abuse of a child is concerned. Are you satisfied that provisions are strenuous enough at the moment?

James Paton: I think that I am right in saying that the assessment process would look at the single person's relationships and would need to consider the background of someone with whom they were living. I believe that the Bill allows for new provisions for enhanced criminal record checks for adults living in the household of prospective adopters. The Bill allows us--[Interruption.] Ms Morgan is saying that there is an obligation under the 1983 regulations to conduct background checks on adults living with prospective adopters. We would want them to be thoroughly checked.

Tim Loughton: That is nothing new; you are going back to 1983. What has changed in the past few years, or has nothing changed?

James Paton: We would expect, under existing regulations, that the background of the person in the prospective adoptive house would be checked. That is an obligation under the 1983 regulations on adoption agencies that we would expect to continue.

Tim Loughton: Yes, but everyone living in the household must be checked at the moment; we know that. I am saying that there is a case for making more strenuous checks of the unmarried partner. If both are not open to the initial vetting process because both cannot be the unmarried adoptive parent, are you going to balance that by making more rigorous vetting of the unmarried partner who cannot be the adopter because you are keeping the status quo in the Bill?

James Paton: We would expect them to be checked out, but it is fair to say that we are having a fundamental review of the whole assessment process, so we could look at that. My understanding of agency best practice at the moment is that in reality both will be assessed in the same way. A stable partner will be scrutinised during the agency's assessment process.

11.30 am

The Chairman: Mr. Dawson, do you want to ask a question?

Mr. Dawson: My point has been answered.

Ms Munn: Surely you have shown the nonsense, Mr. Paton, of not going ahead with allowing unmarried couples to adopt. Current practice is--I was following it until a year ago--that both partners are assessed in exactly the same way as if they were both adopting. By not putting the provision in the Bill, we are denying the presence of proper legal safeguards and the ability for us to be sure that that is so.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 20 November 2001