Clause 85 - Annulment etc. of overseas or Convention adoptions

Adoption and Children Bill – in a Public Bill Committee at 11:30 am on 11 December 2001.

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Photo of Robert Walter Robert Walter Conservative, North Dorset 11:30, 11 December 2001

I beg to move amendment No. 165, in page 46, line 35, leave out subsection (1).

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

With this it will be convenient to take the following amendments: No. 166, in page 46, line 40, leave out from 'ground' to 'that' in line 41.

No. 167, in page 47, line 5, leave out 'either of'.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I do not like the clause because it suggests that an overseas or convention adoption can be annulled by the High Court

''on the ground that the adoption is contrary to public policy.''

That would seem to allow the annulment of adoption on political grounds. If all the procedures under the Bill have been followed, it would be cruel to annul an adoption simply on so-called public policy grounds. Amendment No. 166 merely does the same thing as amendment No. 165 in a later subsection, and amendment No. 167 is consequential on those two.

Article 17 of the Hague convention states:

''Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if—

(a) the Central Authority of that State has ensured that the prospective adoptive parents agree;

(b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;

(c) the Central Authorities of both States have agreed that the adoption may proceed; and

(d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State.''

We must envisage a case in which the central authorities in two states have agreed a convention adoption, but the High Court intervenes and decides that it is contrary to public policy and that on political grounds or grounds of political correctness—I think we intended to avoid that phrase—it does not like the adoption. I am at a loss to know in what circumstances we would not like an adoption.

What really concerns me about the clause is that article 40 of the Hague convention states quite simply:

''No reservation to the Convention shall be permitted.''

However, under the clause,

''The High Court may, on an application under this subsection'' by order annul a convention adoption or adoption order,

''on the ground that the adoption . . . is contrary to public policy''.

Therefore, the United Kingdom, or England and Wales, or the British islands, whichever is relevant under the clause, can annul a convention adoption, even though article 40 states that if all the rules are complied with, the adoption cannot just be moved aside because it is not deemed suitable on political grounds—particularly if the decision has been taken in the light of other articles, such as article 17.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 11:45, 11 December 2001

I, too, had noticed the same aspects of the convention, and wondered whether my hon. Friend detected that the Government are rowing back; I gather that although we have signed the convention, we have yet to ratify it, as is the case with the United States and several other countries.

Photo of Robert Walter Robert Walter Conservative, North Dorset

That is my understanding too. I like to think that when Ministers use the Crown prerogative to sign treaties and conventions, they do so with the full authority of the British people and will not have a problem in ratifying the treaties to bring them into our law. I am concerned that the Adoption (Intercountry Aspects) Act 1999 has the convention as a schedule, but it does not specifically include all the convention provisions.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

There is a rather strange anomaly; in other contexts, such as the 1951 convention on asylum, there are huge difficulties because we are told that it is impossible to depart from the wording and from our treaty obligations. Yet apparently, in the context of a Bill on adoption, which deals with some of the most vulnerable people on earth—small children, some of whom may die if they are not adopted, as we have debated—our treaty obligations can simply be brushed aside.

Photo of Robert Walter Robert Walter Conservative, North Dorset

It does seem that there are circumstances in which we feel that we know better—or, more particularly, the High Court knows better—than those who entered into the convention obligation. I am not a great expert on international law, but, unlike the European convention on human rights, for which there is an appeal to the European Court of Human Rights, the ultimate appeal under the Hague convention remains in the hands of the Governments who signed it. Article 42 states:

''The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.''

There is no higher authority to which those who feel aggrieved can go. The highest authority in this country—the Bill will give it the power to overturn convention provisions, despite the fact that the convention provides that no reservations should be permitted—will be the High Court. Moreover, annulment could be on political grounds. That is not quite what ''public policy'' means, but it is correct speak for political grounds. If an adoption were found to be unsatisfactory despite the fact that the central authorities in both states had gone through all permitted procedures, and the child had been placed and was living happily with its new adoptive parents, the mighty High Court could still go over the top and

say, ''Ah, no. We are sorry, but this adoption order is null and void; we shall annul it on the grounds of public policy.''

The provision is worrying and nasty. I ask the Committee seriously to consider removing all reference to the annulment of convention adoptions.

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

The hon. Gentleman's argument appears to be based on a misunderstanding of the legal definition of public policy. I shall deal with that in a moment.

Clause 85 replaces section 53 of the 1976 Act. It allows the High Court to annul an overseas adoption or a convention adoption order on the ground that it is contrary to public policy. That is provided for in article 24 of the Hague convention, which states:

''The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.''

In his lengthy speech, the hon. Gentleman seemed to imply that the Government would attempt to influence the High Court politically. Not only would that be undesirable; it would probably be impossible.

I shall try to reassure the hon. Gentleman by clarifying the legal position on public policy. First, the test of public policy is a high one, and it is legally defined. It is not a political issue; it is more akin to whether something is acceptable on moral grounds. It is usually considered morally wrong for an individual to benefit from something that offends basic moral principles—for example, if there was evidence that proper procedures had not been followed, that a crime had been committed or that a child had been abused or trafficked. The test is usually used if it would be difficult to justify something happening automatically under the law simply because it usually does so—for instance, to ensure that individuals do not automatically gain financial reward as the result of criminal activities such as murder.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I hope that the Minister will agree that the purpose of a convention on intercountry adoptions is to ensure that such things cannot happen— indeed, the contracting states to the convention have agreed that such procedures will not be permitted. Why, therefore, should one state be allowed to step in and make a judgment on the procedures followed by another?

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

One reason, as I have suggested, is that it is allowed for in the Hague convention. The hon. Gentleman is right about the point of the safeguards that the legislation puts in place, and the work that has been undertaken to allow us to ratify the Hague convention, to which I shall return in a moment. All the safeguards and procedures laid down by the Hague convention are designed to prevent activities such as those under debate.

It may interest and reassure the hon. Gentleman to know that it is likely that the provision would be used only in especially difficult cases, so it is unlikely to be used frequently. Indeed, it has never been necessary to use section 53. However, the Committee could surely not imply that it could never foresee circumstances in which it was appropriate to apply to the High Court to

annul an adoption order, given that that is possible under the convention and given the high tests that would have to be passed. If hon. Members genuinely could not think of a situation in which that might be necessary, the argument would have some validity. The clause provides a legal possibility for circumstances that are extremely unlikely, for which high tests would have to be passed, and in which hon. Members might feel that we would want to annul an adoption order.

The order could only be made by the High Court if it could be convinced that to recognise an adoption order would offend basic moral principles. Examples of when an adoption order could be annulled include when the authority that made the order had no jurisdiction to do so, or when full information was not given to the court even if all the procedures had been properly followed and, if it had been, the adoption would not have gone ahead. Also, the provision could be used to ensure that the best interests of a child who had been subject to trafficking or abuse were protected, if that could be done by annulling or refusing to recognise the adoption order.

The amendments would make recognition of adoption orders made under the convention and as overseas adoptions automatic. There would no longer be any opportunity for the order to be overturned, even if that were in the best interests of the child and it was not appropriate for that person to be considered the child of individuals who might have abducted or abused them. As individuals become more mobile and recognition under UK law of adoption orders made outside the British isles becomes more commonplace, it is important that a protection remains for those who have been adopted in circumstances that we would not want to happen or be recognised in the UK.

Photo of Robert Walter Robert Walter Conservative, North Dorset

The Minister is describing procedures and protections, but those are the ones that we have given to the central authority. Why are we now saying that the central authority that we have set up is not competent, and that we need an extra measure—one that she said had never been used in 25 years—through the High Court?

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

The central authority is important in relation to the procedures undertaken to carry out the adoption order. My argument remains that it is possible to consider circumstances in which all those procedures had been correctly followed, but it would be morally repugnant for the adoption order to continue to be recognised. It is important to point out that the clause also relates to overseas adoptions that are not made under convention procedures. The amendments could put children's best interests at a disadvantage. Even given the very high test that I outlined, they would make it impossible to overturn an order in exceptional circumstances.

The hon. Member for East Worthing and Shoreham suggested that the Government might be drawing back from ratifying the Hague convention, but I reassure him that we are not. We are consulting on the regulations and guidance that are necessary to bring into force the provisions of the 1999 Act that will allow

ratification of the convention. We intend to ratify in the spring, after making regulations for England, Wales and Scotland under the Act and regulations for Northern Ireland under the equivalent 2001 Northern Ireland legislation.

Given the reassurance on our commitment to the Hague convention and my other points, I hope that the hon. Member for North Dorset will withdraw the amendment.

Photo of Robert Walter Robert Walter Conservative, North Dorset 12:00, 11 December 2001

The Minister made a number of interesting points in her deliberations on the amendments. The most interesting was that the provision exists in the Adoption Act 1976 but it has never been used. That is a good reason to question whether we should repeat the phraseology in subsequent legislation, particularly given that we introduced a central authority under the Adoption (Intercountry Aspects) Act to ensure that adoptions fall within the bounds of generally agreed public policy.

I am concerned about the effect that perpetuating the expression in the clause might have on an adoption that is approved by the central authorities in two contracting states—the Minister referred to non-convention states, which I shall mention later—that have agreed to abide by all the provisions of the Hague convention. The High Court could overturn what those competent authorities do, which could lead to all sorts of pain and suffering, particularly on the part of the adopted child. What will we do with a child who has been adopted according to the laws of two member states and is living with its new adopted parents in the United Kingdom? Should we deport it on the ground that the High Court decides that it is contrary to public policy for the parents to have that adopted child in their care? I ask the Minister to think again.

I said that no reservations were permitted under the convention. The Minister cites article 24, which states:

''The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly''— that word does not appear in the Bill—

''contrary to its public policy, taking into account the best interests of the child.''

It says that the adoption may be refused, not annulled. The refusal of the adoption would come at a much earlier stage, when the adoption agencies and the competent authorities were involved—

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

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

Photo of Robert Walter Robert Walter Conservative, North Dorset

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

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.