Adoption and Children Bill

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Jacqui Smith: If fact, the convention says that the recognition of an adoption may be refused.

Mr. Walter: Yes, the Minister is correct. It does say

    ''the recognition of an adoption''.

However, I feel that the recognition of an adoption, once granted, should not be annulled. If all the legal procedures required in two contracting states to the convention have been gone through to secure that recognition, it seems to me, to use the term in article 24 of the convention, to be ''manifestly'' unfair to the child that they should then be told, ''Your adoption is

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contrary is public policy and so you'll have to go back from whence you came.'' I could not contemplate that, and nor, it is clear, could the Minister, because she tells me that the provision has never been used in the 25 years since the passage of the Adoption Act 1976.

The form of words is bad, and I sincerely ask the Minister and her officials to re-examine the provision for annulment of convention adoptions. I would, however, concede that if the adoption is not a convention adoption but an overseas adoption between the United Kingdom and a non-convention country, the High Court might be able to have some say—not in the individual case, but in how the law is interpreted. We have seen many cases of intercountry adoptions conducted in indefensible circumstances. Some kind of legal precedent should be set by the High Court for dealing with such cases when they do not involve two competent authorities as recognised under the Hague convention, but only an authority or agencies in this country.

For non-convention adoptions, input from the High Court might be desirable, but for convention adoptions, the clause goes too far. Because it has never been used, it is, to some extent, irrelevant. It reeks of unnecessary law, granting powers to intervene and overturn a perfectly legitimate adoption for which the correct procedures have been followed, on grounds that, were they valid, would have been considered during those procedures. As I said, I ask the Minister to consider the phrasing of the clause and the powers that it gives to the High Court. On the basis that I am sure that the Minister will re-examine the clause, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 85 ordered to stand part of the Bill.

Clause 86

Section 85: supplementary

Mr. Walter: I beg to move amendment No. 168, in page 47, line 19, leave out 'England and Wales' and insert 'the United Kingdom'.

The amendment relates to my confusion over the area to which we refer when we make adoption law. I have been here before, and I see that the hon. Member for Meirionnydd Nant Conwy is present. I do not seek to prevent him from leaving the Room. When we discussed the Children's Commissioner for Wales Bill, we considered what the competent authorities were in England and Wales, in the United Kingdom, in Scotland and in other parts of what are called the British islands—although we are still not entirely sure what that means.

This is a probing amendment. I want to know whether it is logical to disbar courts and other agencies in one part of the United Kingdom—which I still regard as a unitary state—from processing applications from people who are resident in another part.

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Ms Meg Munn (Sheffield, Heeley): Will the hon. Gentleman make clear his understanding of the United Kingdom? I was enlightened last week on the subjects of the classics and history, and hope to be equally enlightened on the subject of geography.

Mr. Walter: I am grateful for the hon. Lady's intervention. In my understanding, the United Kingdom is the United Kingdom of Great Britain and Northern Ireland, the constituent parts being England and Wales, Scotland and Northern Ireland. As a consequence of devolution, some powers may have been devolved to the National Assembly for Wales—although the clause refers to England and Wales—some to the Scottish Parliament and some to the Northern Ireland Assembly. I think that that last is currently a valid body, but I am not sure because it goes in and out of validity. My point is a general one. We are, at the end of the day, a country.

Mr. Llwyd: The British state is one state, which consists of Scotland, England, Wales and part of Ireland. Those are four countries.

Mr. Walter: I thank the hon. Gentleman for his intervention. I regard the United Kingdom as a country. If the hon. Gentleman wants to define it as a state as opposed to a country, that is a matter for his judgment. However, I shall continue to refer to it as one country. I say that as someone who is Welsh by birth and regard myself as a Welshman, especially when a rugby match is taking place. For the purposes of legal definition, we are a country. The Bill often refers to the United Kingdom and the British islands—we are not entirely sure what that means, but someone will no doubt enlighten us as we proceed—to England and Wales and occasionally to

    ''the Channel Islands, the Isle of Man or any colony''.

We occasionally refer separately to Scotland and to Northern Ireland. I believe that those who seek to interpret the law would be grateful if we tidied up the geographical definitions in the legislation. It will lead to a great deal of confusion on the part of those for whom we are making law if that is not done. Do we really mean, as I have highlighted in the amendment, that

    ''No application may be made under section 85(1) in respect of an adoption unless immediately before the application is made . . .

    (b) the adopter or (in the case of a married couple) both of them, habitually reside in England and Wales''?

12.15 pm

Ms Munn: I am again a little puzzled by what the hon. Gentleman is saying. Having worked in social services for many years under a great deal of legislation, I know that it is common for some legislation to refer to England and Wales and other legislation—or different parts of the same legislation—to refer to Scotland. In my experience, people generally seem to know what they are supposed to do.

Mr. Walter: The hon. Lady is correct that law is often made on the basis that it relates to England and Wales. However, my understanding is that when the Bill is enacted it will say not only that it

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    ''extends to England and Wales only''

but that

    ''The following extend also to Scotland and Northern Ireland'',

after which there is a list of sections.

The Bill makes provision for territories that are described as ''the British Islands'', and for colonies—I shall come to that in debate of the next amendment—the Channel Islands and the Isle of Man. The probing amendment seeks consistency from the Minister in application of the law.

I return to the point on which the hon. Lady intervened. Are we saying that if both members of a married couple, or an adopter, do not habitually reside in England and Wales, they are somehow precluded from adopting a child in England and Wales and will have to apply under different provisions in a different jurisdiction within the United Kingdom for an adoption order to be made? It should be possible for those from Scotland, Northern Ireland, England or Wales to adopt children from England, Wales, Scotland or Northern Ireland—wherever they wish to carry out that adoption—without having to think about which jurisdiction they are under.

Kevin Brennan (Cardiff, West): Does the hon. Gentleman agree that, as someone who was born in Wales, he would find it strange if he were described as having been born in England and Wales? Does he therefore agree that subsection (2)(b), which states that the adopter should be habitually resident in ''England and Wales'', is outdated, and that the term should be replaced with ''England or Wales''?

Mr. Walter: The hon. Gentleman has made an interesting suggestion. I do not feel competent to answer his question. Perhaps the Minister can do so—

The Chairman: Order. Perhaps I can help the hon. Gentleman by referring to the amendment. It does not specify ''England or Wales'', but ''England and Wales''. Our debate must abide by the terms of the amendment.

Mr. Walter: Thank you, Mr. Stevenson.

Mr. Jonathan Djanogly (Huntingdon): The same problem arises for companies that are incorporated in England and Wales. The issue is relevant not only to the Bill, but to the general breadth of our law.

Mr. Walter: I thank my hon. Friend for that clarification. It is a matter of fact that all primary legislation for England and Wales is made in the House as primary legislation for England and Wales.

Through my amendment, I seek to draw out some concept of what prospective adoptive parents would think, given boundaries that they might not recognise. They would recognise Scotland and Northern Ireland, of course, and also different county jurisdictions. We are considering the application of adoption procedures in the United Kingdom. I seek the Minister's clarification that the provision will not prevent children from being adopted across internal borders in the UK, and that we can view the UK as a single unitary state.

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Mr. Llwyd: Although I appreciate what the hon. Member for North Dorset said about references to the United Kingdom, the British isles, England and Wales and so on, I think that I am right to say that the reference in subsection (2) is to the legal jurisdiction of England and Wales. There would equally be a Scottish and a Northern Irish jurisdiction. He is right to probe on the subject, but the answer will simply be that the Bill will apply in England and Wales, with parallel Bills in Scotland and the north of Ireland. Wherever a possible adopter resides, he or she will put in train his or her application for adoption under the legislation that applies in that part of the British isles.

Jacqui Smith: We have moved from discussions on Europe to discussions on the nature of the United Kingdom and the British islands. Some Opposition Members seem to want to turn the clock back even beyond the devolution proposals implemented by the Government to a period when the UK was an amalgam with no differences between the legislation in its different parts. I suspect that, if we looked at the history books, we would see that such a time never existed. As my hon. Friend the Member for Sheffield, Heeley (Ms Munn) pointed out, such differences have not caused significant difficulties so far.

I am a little disappointed that hon. Members are not intimately aware of the provisions of the Interpretation Act 1978, which sets out that the United Kingdom constitutes England, Wales, Scotland and Northern Ireland, and that the British islands are the United Kingdom, the Channel Islands and the Isle of Man. I have a bad feeling that we shall return to those definitions in a minute.

Clause 85, as we discussed, allows the High Court to annul an overseas adoption or a convention adoption order on the ground that the adoption is contrary to public policy. Clause 86 specifies that the application for the annulment of overseas adoptions or convention adoption orders should be made in the prescribed manner and within the prescribed period. The two clauses replace sections 53 and 54 of the Adoption Act 1976. Those sections apply only to England and Wales but, as the hon. Member for Meirionnydd Nant Conwy helpfully pointed out, equivalent provisions are made in Scottish and Northern Irish legislation. Orders made under clause 85 would be recognised in Scotland and Northern Ireland, and any equivalent orders made there would be recognised in England and Wales.

The hon. Member for North Dorset expressed concern about the recognition of adoptions in the four countries of the United Kingdom. Under clause 63, adoption orders made in one of the jurisdictions of the British islands are recognised in the other jurisdictions. The amendment would allow an order to be applied for in a court in England and Wales by anyone habitually resident in any part of the UK, rather than anyone habitually resident in England and Wales. That is not consistent with current legislation, nor with the idea of a court's jurisdiction outlined by the hon. Member for Meirionnydd Nant Conwy. It is not necessary, as anyone habitually resident in Scotland or Northern Ireland could apply to a court in Scotland or

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Northern Ireland for the same sort of order. The court's jurisdiction depends on establishing residency or showing that an action has occurred in that country, and that is for the court to decide.

It is important to ensure consistent access to the provisions of clause 85 in any part of the UK, which is what concerned the hon. Member for North Dorset. I hope that I have reassured the Committee that that is possible. I therefore hope that the hon. Gentleman will withdraw the amendment.

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