Adoption and Children Bill

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Kevin Brennan: Does my hon. Friend agree that it can be beneficial if contact is initiated by birth relatives? Research shows that three quarters of non-searching adopted adults do not feel comfortable about asking their adoptive parents about their birth families, so it can be helpful if contact is initiated by the birth family.

Ms Munn: I certainly accept the conclusions of the research to which my hon. Friend refers. That is especially relevant to earlier cases, in which adoptive parents were given the child and told to get on with it and act if the child were their own. They may have done that for years with all good intent, but it can result in adopted children finding it very difficult to search for their birth parents.

In conclusion, although there are some dangers and difficulties involved in people being contacted at a time that is not appropriate for them, if the process is carried out with the sensitivity embodied in the clause, I feel on balance that the provision should apply to all adults who have been adopted and that it would be a beneficial way in which to proceed.

Mr. Jonathan Shaw (Chatham and Aylesford): I rise to add my support to those who have spoken in favour of all adults being able to receive information on their birth parents. Of course there are inherent risks, eloquently stated by my hon. Friend the Member for Cardiff, West (Kevin Brennan), but we should grasp the principle and ask ourselves whether we agree that

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information should flow and that adults should be able to make choices. Yes, there are risks, but the arguments are overriding: the flow of information should be allowed so that adults can make decisions on whether they want to hear from their birth parents. People should be able to make those decisions for themselves.

We have often discussed at what age children should be consulted. The hon. Member for Huntingdon said that children aged two or three should be consulted on whether they want to be adopted. If he agrees with that principle, surely he agrees that 18-year-olds should be able to decide whether they want to hear from their birth parents. Of course, there are complexities, but we should not put the matter in the tray marked too difficult''.

Jacqui Smith: We have an interesting discussion. I am glad that the general consensus is to recognise the benefits of new clauses 7 and 8. Rather than reiterate those benefits, I shall respond to some of the issues raised in the debate.

The hon. Member for East Worthing and Shoreham was concerned that the new clauses might lead to greater disparity between adoption agencies' approaches. In fact, what the new clauses aim to do—and will succeed in doing, when they are enacted—is provide a much clearer and more structured process than currently exists. That will enhance consistency and provide better and more appropriate safeguards. One intention is to ensure that agencies follow best practice and are as consistent as possible. Agencies will need advice: I do not want to disappoint the hon. Member for Canterbury but, despite the Bill's excellent content, we shall underpin the provisions with regulations and guidance.

Mr. Brazier: I know that the Minister enjoys a tease. My point is that one wants to have the cardinal points in the Bill itself, leaving the detail to regulations.

Jacqui Smith: I shall not respond to his initial comment, but I take the hon. Gentleman's point.

I have a further point to make about discrepancy and disparity. The responses to the adoption White Paper and the problems identified around access to information were related to the fact that current law and regulations give minimal guidance on that important issue, which has led to patchy provision and to some adoption agencies following best practice while others do not. New clauses 7 and 8 will make much clearer what best practice should be, which will get rid of the current disparities.

Hon. Members also raised issues about adoption agencies' discretion in their decisions on whether to proceed, as I spelled out when I described the process under new clauses 7 and 8. The adopted person will not have a veto, although his views and welfare are important. The agency would decide whether it was appropriate to disclose, having regard to all the circumstances of the case, the adopted person's welfare and any other prescribed services. There is no absolute veto.

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Mr. Dawson: I accept everything that my hon. Friend says about the adopted person having no absolute right of veto, but surely she agrees that it would be extraordinary if an agency went against the wishes of the adopted person and gave information about him to someone else.

Jacqui Smith: My hon. Friend is right that such circumstances would be extraordinary. However, we have not touched the subject of discretion when it is not possible to contact the person to obtain consent or otherwise. Discretion would clearly have to be exercised in such cases. There could be circumstances in which it was considerably in the best interests of the adopted person for information to be passed on about him, despite the fact that he had not consented. I am thinking of information in relation to certain medical issues.

What is important about the new clauses is that they make significant provision for the consent, wishes and interests of people about whom information is disclosed to be at the centre of the decision. Nevertheless, in some situations it may be important that the adoption agency exercises some discretion.

Mr. Brazier: Does not the provision offer an opportunity simply to give an absolute veto in retrospective cases? Would that not be a sensible compromise?

Jacqui Smith: I shall deal with the retrospective issue. My argument relates to the fact that, for a veto to be given, an approach must have been made in a way unlike those detailed at the moment.

The hon. Member for Huntingdon asked whether, if a person objected to the disclosure of information but the agency considered it appropriate to disclose it, there would be a fait accompli against which there was no appeal, or whether there would still be the right to a review by an independent panel. There would be such a right. When a party objects to the agency's intention to disclose and the agency then decides to do so, the objecting party would have to be informed by the agency of their right to an independent review.

Much of the debate on the new clauses has been about the extent to which new clause 7 should be retrospective. I have covered some of the legal disadvantages of retrospective legislation. Many of the arguments made, including those of the hon. Member for East Worthing and Shoreham and, although not in the same words, my hon. Friend the Member for Cardiff, West, have been based on the suggestion that birth relatives were in some way being left out of any opportunity to access information about their adopted children. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) said that there would be no benefit for years to come.

I consider it unsatisfactory to make legislation retrospective so that it would affect people who entered into an arrangement under a different understanding of the legal position. I draw a distinction between that and what it might nevertheless be possible to do for those who were adopted before the enactment of the Bill. I understand the points that have been made about people's strong

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desire for more help in getting information about an adopted adult or child and their need to be able to make contact. Perhaps I should outline for the Committee—reiterating part of the discussion that took place before Christmas—how the Bill already enables assistance to be given for making contact and tracing. I hope that I will be able to reassure some hon. Members.

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Tim Loughton: I am glad that the Minister is going to do that. However, what was the agreement into which people entered in the past? What were its legal ramifications, if it existed? How many people were affected by it and can we class separately those who entered into an agreement and those who did not or had different treatment? I want to get to the bottom of what happened in the mid-70s because it is such a grey area and I do not think that the Minister has got to the bottom of it herself.

Jacqui Smith: Perhaps I misled the hon. Gentleman in talking about an agreement. I am not talking about a formal agreement. It is reasonable that, when a person undertakes adoption under a certain legislative position, they have some certainty that that position will continue. Making the legislation retrospective would take away the certainty of the legislative basis for their actions enjoyed by people who entered into adoption before the enacting of the Bill.

Mr. Dawson: Surely the people who entered into adoption in the past were birth parents who, if the new clause were made retrospective, would be the very people who would be able to decide whether to make use of it? If not, then they were adoptive parents whose adopted children have long since become adult. I do not understand the Minister's objection.

Jacqui Smith: Yes, that would be so, but although adopted adults would not have made a conscious decision to enter into an agreement, there are such adults—I spoke about them before Christmas—who do not want to be contacted by their birth parents. People are very passionate about that and about the fact that they do not even want intermediary services or to be contacted to be asked whether or not they consent. In the future, such objections will not be open to adults who were adopted after the Bill had been enacted, but taking from people adopted before that point what they considered to be a legal certainty by making the new clause retrospective would be difficult and problematic, even, quite frankly, wrong. That is the problem with making legislation retrospective. Notwithstanding that, I intend to go on to talk about the very many ways in which we can facilitate contact for those people who want it and who were adopted prior to the enactment of the Bill.

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