Clause 91 - Prohibition of certain payments

Adoption and Children Bill – in a Public Bill Committee at 11:00 am on 15th January 2002.

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Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 11:00 am, 15th January 2002

I beg to move amendment No. 259, in page 50, line 5, leave out from 'in' to end of line 6.

Having discussed restrictions on arrangements and reports, we come to the prohibition of certain payments. That safeguard is important because some individuals are prepared to engage in the despicable business of buying and selling children for adoption and do not recognise the needs of those children. It is essential that the welfare and needs of children be safeguarded.

The extent of the penalty in the clause acknowledges the seriousness of such activities. Individuals who are convicted face a prison term of up to six months, a fine of up to £10,000, or both. That is tougher than the current penalty under section 57 of the Adoption Act 1976, which the clause largely restates. The current penalty involves a prison term not exceeding three months, a fine not exceeding £5,000, or both. We are right to increase the penalty and thus the deterrent because children need protection.

The clause prohibits the exchange of any money in adoptions, other than that excepted in clause 92, which covers the payment of legitimate expenses incurred by adoption agencies and persons who apply or propose to apply for adoption or for the transfer of parental responsibility orders. Subsection (1) provides that the clause applies to any payment—other than the

payments set out in clause 92—which is made in adopting a child, consenting to an adoption, or removing to a place outside the British islands for the purpose of adoption a child who is a Commonwealth citizen or who is habitually resident in the United Kingdom. The subsection also applies to any payment that is made in connection with steps taken to arrange an adoption under clause 88(2), to which I shall return when I discuss the amendment.

Subsection (3) provides that an offence is committed if a person makes any payment to which the clause applies, agrees or offers to make any such payment, or receives, agrees to receive, or attempts to obtain any such payment. Subsection (4) provides for the toughened penalty that I outlined. It will ensure that there is a strong deterrent to discourage those who use financial reward to induce others to act in contravention of clauses 91, 82, 88 and 90.

The amendment is intended is to strengthen the connection between the steps taken under clause 88, which I spelled out in some detail, and the restriction in clause 91 on payments being made in taking such steps. Clause 88 makes it clear that only adoption agencies and persons acting in pursuance of a High Court order may take specified steps in relation to adoption, other than in certain circumstances—if the prospective adopter, or one of the adopters, is a parent, step-parent, relative or guardian of the child.

Clause 91 restricts the exchange of money in adoptions, and payments that fall under it are prohibited unless excepted by clause 92. As the Bill is currently drafted, clause 91(1) does not catch three of the nine steps specified in clause 88. Those are:

''asking a person other than an adoption agency to provide a child for adoption''

in clause 88(2)(a),

''asking a person other than an adoption agency to provide prospective adopters for a child''

in clause 88(2)(b), and

''receiving a child . . . in contravention of paragraph (e)''

with a view to adopting or allowing another person to adopt the child without an adoption agency being involved, which is dealt with in clause 88(2)(f). Therefore, any payment made for—or consideration of a person taking—any of those steps is not an offence. The amendment will make such payments unlawful and will ensure that clause 91(1) covers all nine of the steps in clause 88.

By including the three other steps under clause 91(1), we increase the safeguards for vulnerable children and provide the means to penalise those who make inappropriate payments, agree or offer to make such payments, or agree to receive such payments. For example, as well as those who approach a birth parent directly—under clause 88(2)(a)—we want to ensure that intermediaries are caught by the provisions. Someone who offered money to an intermediary would also be caught, such as a person offering money to someone involved in giving

advice and support to pregnant mothers or in providing care for children.

A person, X, might be eager to find a mother who is willing to give up her child for adoption; he approaches Y, a nurse who works in a maternity clinic, and offers Y money to approach new mothers who are experiencing problems and who might be persuaded that their difficulties could be easily resolved by giving up their newborn child for adoption. In respect of clause 88(2)(b), a parent may be unwilling to keep a child, but not want to put the child into the care of the local authority. That parent may offer money to an intermediary to find prospective adopters and then give the child up freely or negotiate some reward for the exchange of the child. The amendment would restrict that payment. Finally, in respect of clause 88(2)(f), those who, as part of a financial transaction, place a child with another person for that person or another to adopt will be penalised.

The Committee will agree that making payments in relation to adoption is inappropriate, except in specific and excepted cases. It is certainly inappropriate to use adoption to make a profit. The restrictions in clause 91, strengthened by Government amendment No. 259 with its explicit links to clause 88, provide the protection to ensure that such practices do not find their way into our adoption system.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 11:15 am, 15th January 2002

We are in full agreement with the clause. The Minister is right to say that legislation must prevent people from profiting from adoption. However, I query the wording of what is left after the amendment—perhaps I missed an amendment debated earlier that adds to subsection (1)(d). I appreciate the steps outlined by the Minister, but as it stands the amendment simply deletes the last parts of the last three lines of paragraph (d) so that subsection (1) reads, in part:

''This section applies to any payment (other than an excepted payment) which is made for or in consideration of . . . a person (who is neither an adoption agency nor acting in pursuance of an order of the High Court) taking any step mentioned''.

What is ''any step mentioned''? Surely, there must be a reference to particular eventualities in a previous part of the Bill; otherwise anyone who is not an adoption agency or acting in pursuance of a High Court order will be caught for ''taking any step mentioned''. I am sure that there must be a reason why the clause is worded in such a way, but it is not obvious without additional explanatory notes that explain some of the Government's amendments.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is the sort of explanation that I was after. If it is correct, I am happy to proceed with the clause.

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

Perhaps I can help. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd)—

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

The hon. Member for Meirionnydd Nant Conwy should deliver on his promises.

The amendment will leave out from ''in'' to the end of line 6 only, so that the subsection will refer to

''a person (who is neither an adoption agency nor acting in pursuance an order of the High Court) taking any step mentioned in section 88(2)''.

I hope that with that clarification we can proceed.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I have one technical query. How does the restriction in subsection (1)(c) relate to adoptive parents from abroad, who, making a payment for an adopted child from this country, then make a payment that covers travel expenses and other items? How is that excluded, so that they are not prosecuted for paying a fee that is not a profiteering fee?

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

We shall debate clause 92, which relates to excepted payments, later. The intention of that clause is that precisely the sort of payment to which the hon. Gentleman refers would be included in the excepted payments, if it was ''reasonably incurred'' in relation to an adoption. For example, a payment made for the child's travel and for someone to accompany a child from one country to another would be excepted under clause 92, if that was done within the restraint of relatives or parents—I shall correct myself if that is not the correct restraint. The situation described by the hon. Gentleman would not be prohibited by clause 91.

Photo of Robert Walter Robert Walter Conservative, North Dorset

The clause is one of the more important clauses in the Bill, especially as it relates to intercountry adoptions. I should like to probe the Minister on the prohibition of payments. The clause is specific with regard to payments made in respect of

''removing from the United Kingdom a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom'',

but not in respect of children coming in the other direction.

Some of the worst examples of payments for intercountry adoptions relate to children who have been ''bought'' in other countries. Excessive payments have been made to agents in those other countries, some of them masquerading as lawyers and claiming extortionate fees for arranging adoptions. Will the Minister give me some assurance that either this or another clause—I may have been remiss in not examining the Bill closely enough—will cover those payments that we would all like to prohibit?

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

The hon. Member for North Dorset (Mr. Walter) rightly suggests that payments should not be made when bringing children into this country for adoption, if they are not under the auspices of an adoption agency or travelling with their adoptive parents. The hon. Gentleman's point is covered by the restrictions in clause 88 on arranging adoptions. There is a direct link between the restrictions on arranging

adoptions and any payment that might be made for arranging them. I will correct myself if I am wrong, but I suspect that the situation outlined by the hon. Gentleman may be covered by the restrictions in clause 88. Therefore, it would be prohibited under clause 91.

There is no excepted payment for a child's travel into the United Kingdom, as we require it to be accompanied by its adoptive parents in those circumstances. If an intercountry adoption had happened abroad, the child would have to return with its adoptive parents. That and the restrictions in clause 88 deal with the hon. Gentleman's concerns.

Question put and agreed to.

Clause 91, as amended, ordered to stand part of the Bill.