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Clause 3—(Consent To Adoption)

Volume 466: debated on Friday 24 June 1949

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 2, line 9, at the end, to insert:

"or, in the case of an infant committed to or received into the care of a local authority by virtue of the provisions of the Children and Young Persons Act, 1933, or the Children Act, 1948, with the consent of that authority."
Clause 3 deals with consent to adoption, and states that an adoption order shall not be made
"except with the consent of every person or body who is a parent or guardian of the infant, or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant."
The Children's Act, 1948, puts local authorities under certain conditions in loco parentis, and we feel that these local authorities or the children under such local authorities should have similar rights and powers as a parent or poor guardian of an infant concerning whom Parliament has conferred similar duties.

Here again there may be some misunderstanding which I may be able to clear up. As I understand it, the suggestion is that a welfare local authority should be required to consent in the same way as a guardian or parent is required to consent. My view is they are in ordinary circumstances, for these reasons, that where a child has been committed under the Children and Young Persons Act, 1933, to the care of a local authority as a fit person, the local authority has the same rights and powers as if it were a parent. That is embraced within the terms of the statute. Further than that, a local authority, as the House knows, may be allowed under the Children Act, 1948, to assume in respect of a child under its care all the rights and powers of a parent. It seems to me in those circumstances that the authority is deemed, in effect, to be in the position of a parent whose consent is required. I feel that that should be sufficient to satisfy my hon. Friend that there is no need for the Amendment.

I do not feel fully satisfied that these powers, which should exist, really exist at the present time, and I would ask the hon. and learned Gentleman if it would not clarify things and do no harm at all if we made sure of it by inserting this Amendment.

Perhaps I may make one additional comment. The hon. and learned Gentleman the Member for Chester (Mr. Nield) is quite right in saying that in all cases where under the Children Act local authorities are put into the position of parents with parental rights at the present time their consent would be required. I would also point out that under this Bill welfare authorities will have three months' notice of all those cases of children living in the area. Perhaps I could help by telling my hon. Friend the Member for Barking (Mr. Hastings) that it is the intention to make rules under the principal Act, whereby the courts will give to the local authorities an opportunity to make representations on the application for adoption and also—this is rather a detailed point—for a local authority to be informed when notice is given to some other welfare authority of the intention to apply in respect of a child in the care of one authority but living in the area of another. I should have thought myself that the certainty of notification, coupled with the right under the proposed rules to make representations at the hearing would, in effect, achieve the object which my hon. Friend has in mind.

In view of what has been said by the Under-Secretary of State to the Home Department, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.45 a.m.

I beg to move, in line 13, to leave out "or deserted," and to insert,

"neglected or persistently ill-treated."
The House will appreciate that Clause 3 is concerned, amongst other things, with the right of a court to dispense with those consents which should be given to the making of an order. The reasons are set out in the Clause, and included is the case where a parent or guardian has abandoned or deserted an infant. My purpose in moving this Amendment is to add these other causes or reasons why consent should be dispensed with, namely, where a parent or guardian has neglected or persistently ill-treated a child. It would hardly seem that there can be much opposition to this Amendment. It would appear quite wrong that such a parent or guardian should, by refusing his consent, deprive a child of its new home. I would add this—there is a provision in the Scottish enactment dealing with this question, the Adoption of Children (Scotland) Act, 1930, of a similar nature, so that one is happy to think that one is coming into line with the law of Scotland in this particular direction. I have left out the word "deserted" because it appears to me that "abandoned" is quite adequate.

I hope my hon. Friend the Under Secretary of State will see his way to support this Amendment, because there is a definite distinction between the question of desertion and what is referred to in the Amendment. It is highly desirable that words of this nature should be inserted, giving protection for the persons concerned. It should be known that there are others in this House who hold the same view as the hon. and learned Gentleman the Member for Chester (Mr. Nield) in this respect.

I should like to add my word of commendation in regard to this Amendment. I have had considerable experience of this type of thing where one parent, even in prison, has been able to prevent a child from being removed to a good home, and the courts were anxious not to break up a family, which was satisfactory in other respects, such as the good character of the other natural parent. That always seems to me to be looking at the benefit of the parent rather than the best interests of the child, so I am anxious for the acceptance of this Amendment.

Amendment agreed to.

I beg to move, in line 20, to leave out paragraph (d).

This paragraph was added in Committee against my recommendation, but I am anxious to meet the intention of those who moved it, though in rather a different way. The problem which the House should appreciate is this. There is obviously much to be said for the principle that the name and address of the applicant for an adoption order should not be disclosed without his consent, in order that both adopters and adopted children may be protected later on from unsettling interventions by the natural relations of the child. On the other hand, it is reasonable that a parent should have some assurance that the child is going to a good home. What one wants to do is to find a means of trying to protect both interests.

My suggestion is to leave out paragraph (d) of subsection (1) and to add at the end of subsection (2) words which would provide that where a person has given a general consent to the adoption of a child and, after an order has been applied for, withdraws that consent only on the ground that he does not know the identity of the proposed adopter, then his consent shall be deemed to be unreasonably withheld. Otherwise, under the Clause as it stands, the court may dispense with such consent. By leaving out subsection (1, d) and inserting later the provision I have outlined, we shall preserve the principle of not disclosing the identity of the prospective adopter and will not prejudice the rights of the parents, who obviously wish to be assured of a good home for their child.

Amendment agreed to.

I beg to move, in line 21, at the end, to insert:

"(e) that the parent of the infant has failed to comply with the duty imposed upon him by subsection (1) of section ten of the Children Act, 1948."
The Amendment is related to local government assistance. Very long experience of cases of adoption has shown that difficulties arise over the question of consents; it arose also on the last Amendment. Most adoption cases come before summary courts, and benches of magistrates are sometimes very difficult people to convince. Magistrates are very chary of exercising the various discretions permitted to them. It is very comforting and helpful to them if they can find in the Acts which they are administering what we may call a sense of direction, rather than to feel that in the exercise of their various discretions they may not be doing the right thing; or that they fail to exercise their discretion because they are dubious about their powers. In many adoption cases the failure to obtain an order has been due to the inability of the bench to make up their minds.

The Section in the Adoption of Children Act, 1926, which deals with consents is replaced by Clause 3, although there is not very much difference in it. Difficulties have arisen under the 1926 Act on the giving of consents. Very often local authorities have had children in their care—often in the care of foster-parents—and eventually the foster-parent applies for adoption. The Amendment suggests that consents, although very often necessary, can be dispensed with if the magistrates feel that the parent has not complied with the duty imposed upon him by the Children Act, 1948, Section 10 of which provides that it shall be the duty of parents to maintain contact with local authorities who have the care of their children, and prescribes certain penalties.

The insertion of the Amendment would be very helpful in enabling magistrates to arrive at a conclusion on the question of the abandonment or desertion. If it can be proved that the parent or parents have deserted or abandoned their children, consent could be dispensed with by the local authority which has had the care of the child being able to give evidence of the non-compliance by the parent with Clause 10 of the Children Act.

I am sorry that I cannot ask the House to agree to the Amendment, for reasons which, I hope, will appeal to my hon. Friend the Member for Sutton and Cheam (Mr. S. Marshall). Under the Clause one is concerned to ascertain in what circumstances a court is justified in dispensing with the consent of the parent or guardian, or whoever it may be, who has to give consent. There are set out the various grounds which shall be regarded as good reasons for dispensing with that consent. Two of those grounds, which already appear in the Clause, require consideration; namely, in the case where the parents have abandoned the child and, under subsecton (1, c), where the parents cannot be found. My hon. Friend wants to add another reason—that consent may be dispensed with where the parent has failed to keep the local authority informed of his address.

There is a twofold answer to my hon. Friend. First, if the parent is escaping his obligations and, for that reason, failing to keep the local authority informed of his address, it is more than likely that the child would come into the position where it could be said that the parent either had abandoned it or could not be found; so that already the court would be empowered to dispense with the consent. The other point is very important. If some unfortunate parent had quite inadvertently failed to notify the local authority of his address, it would surely be very wrong thereafter to make that a reason for dispensing with his consent in the case of an adoption being applied for.

12 noon.

I am sure my hon. Friend had the best of motives in mind, but I suggest that he will find, if I have rightly explained the previous provisions of the Clause, that he has little to fear and that the position will be safeguarded already. It is noteworthy to remember that under the Children Act this failure to notify an address, if it is done wilfully, will result in a penalty, and a £5 fine may be inflicted. It would seem very curious that if it was not wilful it should be made a reason for dispensing with the consent.

In view of the remarks of my hon. and learned Friend I beg to ask leave to withdraw the Amendment.

Amendment, by leave withdrawn.

I beg to move, in page 2, line 23, to leave out from "given," to "whether," in line 24.

May I point out that this and the next Amendment link up with the removal of paragraph (d) as a result of the last Amendment which I moved. This is to give effect to what I said when moving the Amendment as to the new provisions to be inserted in the Measure in place of the old paragraph (d) which was added on Committee stage.

Amendment agreed to.

Further Amendment made: In page 2, line 25, at end, insert:

"and may be given either generally in respect of the adoption of the infant or only in respect of the adoption of the infant by a specified person; and where any such consent is given generally as aforesaid by any person and is subsequently withdrawn, after the making of an application for an adoption order, on the ground only that he does not know the identity of the proposed adopter, his consent shall be deemed for the purposes of the last foregoing subsection to be unreasonably withheld."—[Mr. Nield.]