Witnesses:
Mr J Clarke )
Dr H Harrison ) Department Officials
Mr A Sharp )

1.

The Chairperson: Our discussion will last about one hour as we have another important subject to discuss following this discussion. If we are close to finishing within one hour, then we will certainly go over that. However, if not, we may have to ask you to come back again on 7 February.

2.

I think you are already aware of my second point. There is great concern within our Committee, and far beyond, about the case of the attempted adoption of the twins on the Internet. Colleagues, and, indeed, the public outside want to know if this Bill covers that sort of thing.

3.

Mr Clarke: My opening comment was going to be about this case. As I left my office to come here, I received a communication from London. I have only glanced through it, but there is a meeting about this at official level tomorrow in London. Even before I got this communication, I would have been asking if the proposed Adoption (Intercountry Aspects) Bill addresses this issue and does the corresponding Act in England and Wales cover all of this issue? From my preliminary reading of the thing, there are one or two concerns that it does not.

4.

The Chairperson: This is a very important point.

5.

Mr Clarke: As I was saying at the beginning of this meeting, we are in the middle of something that people are currently looking at. There are provisions in the Bill that deal with the issue of bringing children into the country and ensuring that all assessments of couples are carried out by approved adoption agencies. That is a partial response to the issue which has been raised by this case. Having said that, there are difficulties; there are concerns that there could still be circumstances in which something could happen - not necessarily similar to what has happened in this case - and the Adoption (Intercountry Aspects) Act may not cover. That has been mentioned in statements that have already been made in the House of Commons.

6.

The Chairperson: Can we assume that the Minister and the Department will be looking very closely at this and submitting an amendment?

7.

Mr Clarke: Indeed. This could be good and bad, in the sense that the legislation is still in the form of a Bill.

8.

The Chairperson: Will you be looking at that very closely?

9.

Mr Clarke: Yes. We will have to.

10.

Mr J Kelly: Vetting seems to be the critical issue.

11.

Mr Clarke: The approval of the adoptive parents is critical. The Bill, as presently drafted, certainly addressed that to some extent. The home-study report must be done by an approved adoption agency. In this particular case that provision has been commenced in England and Wales, but it was not commenced at the operative moment, and that home-study report pre-dates that, so the legislation could not be operated retrospectively.

12.

The Chairperson: Can we assume that you will be putting forward an amendment? Obviously the Committee will be considering whether we should put forward an amendment.

13.

Mr Clarke: You are putting me in a difficult position, Mr Chairman. We will have to look at it very closely and very quickly.

14.

The Chairperson: Surely there is enough time between now 7 February to have that clarified beyond all doubt?

15.

Mr Clarke: Yes, indeed. I would like a bit more confidence myself.

16.

The Chairperson: Are Colleagues happy with that?

17.

We move on to the actual Bill itself, which we have to take clause by clause.

18.

This clause enables the Department of Health, Social Services and Public Safety to make regulations giving effect in Northern Ireland to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29 May 1993, known as the "Hague Convention".

19.

Mr Clarke: This is quite a wide-ranging regulation- making power, but it is constrained - indeed, the Bill is constrained - regarding the amendments to adoption legislation and regulations. It would permit them only for the purposes of giving effect to the International Convention (Hague Convention).

20.

The equivalent provision in the Intercountry Adoption Act in England and Wales has not been commenced, and there is a huge body of regulations that would be required to support this. The regulations have to be subject to negative resolution, so there will be consultation.

21.

People are now feeling constrained because they want to move ahead in this area, but we still have to consult with the Committee and others - particularly the agencies involved. I expect that these would be a very substantial set of regulations and, in a sense, this section is just paving the way for the real substance of much of what the legislation would be doing.

22.

Dr Hendron: Would the regulations be subordinate legislation?

23.

Mr Clarke: Yes.

24.

Ms Ramsey: Are you saying that this Bill comes from the Convention on Protection of Children at the Hague Convention in May 1993?

25.

Mr Clarke: The Intercountry Adoption Act in Great Britain stems from that. In the UK, in order to ratify and implement the Convention, it would have to have the appropriate legislation to carry out domestic law.

26.

Ms Ramsey: Has that taken us eight years?

27.

Mr Clarke: Yes, it has taken the United Kingdom that length of time.

28.

Mr McFarland: Is it true that for ignoring any of these regulations, one can be punished with the "massive" imprisonment of three months? That is an amazing deterrent for someone who is desperate for a child and wishes to circumvent the regulations. Is that the tariff in Great Britain for such an offence?

29.

Mr Clarke: It would be a similar tariff.

30.

Mr McFarland: Is it not a bit light, given that anyone who is likely to wish to skirt these regulations is someone who probably has been refused, or has had difficulty getting permission, and is therefore trying to bring children in without authority? As you know, in some cases the situation is one of desperation. Do you think that threatening them by saying "Behave yourself; do not do that or you will get three months in jail" is likely to be a deterrent, given the amounts of money and the effort involved in this?

31.

Mr Clarke: There is always an issue about the severity of penalties and I will point out an issue that may be related. This is broadly equivalent to other parts of the United Kingdom. So, what we would be doing is creating the offence within Northern Ireland of bringing a child in - in contravention, of the Convention. For example, if the whole thing were effective in the United Kingdom, you could bring the child through England and Wales. There would be practical issues if there were differences in penalties because there would be a way around that also.

32.

Mr McFarland: I was not questioning whether it should be different from England and Wales, but rather whether no one had wondered to themselves what deterrent effect three months imprisonment would have on the sort of people who are likely to offend. The question is, has the Department raised this with the Department of Health in England to suggest that, on reflection, waving the finger at someone and threatening them with three months might not have the effect of deterring someone who wishes to circumvent these regulations?

33.

Mr Sharp: The Bill tries to focus mostly on the interests of the child and not the punishment of the offender.

34.

Mr Clarke: We have not considered whether the present penalty is severe enough. As I said earlier, there is now an opportunity, in the broader context, to ask whether any consideration is being given to the tightening of the law in this area. The question of whether any consideration is being given to it is something I can certainly bring to tomorrow's meeting. It is one we might have difficulty operating independently, but I take your point.

35.

Dr Harrison: The ramifications of three months' imprisonment would be that the welfare of the child would also have to be considered, with steps having to be taken to secure its welfare. That would therefore also be a deterrent in itself, since a child could not remain with parents who had been imprisoned.

36.

Rev Robert Coulter: Returning to the issue of the three-month penalty, will the fine deter a repeat offence in the same way as a three-month sentence?

37.

Mr Clarke: Under this Bill, one could receive the maximum both for the prison sentence and the fine. Are you asking if the deterrent is adequate?

38.

Rev Robert Coulter: No. The point I am making is that three months in prison would automatically bar someone from repeating the offence, but would the fine have the same deterrent factor?

39.

Mr Clarke: It would be a conviction for the offence, and the penalty could be either a fine, a prison sentence or both. However, those are the maximum penalties. One could perhaps say that the deterrent effect of a large fine, given that it is already a very expensive operation overall, might not be so great.

40.

Rev Robert Coulter: Will the fine be on their record in the same way as a prison term would be?

41.

Mr Clarke: Yes. The fact of the conviction is on their record.

42.

The Chairperson: Clause 2 is about the central authority and accredited bodies. For the purpose of Article 6 of the Hague Convention, subsection 1 provides for the functions of a central authority in Northern Ireland to be discharged by the Department of Health, Social Services and Public Safety.

43.

Mr Clarke: The concept of central authority is basic to the whole operation between countries. At present all intercountry adoption cases pass through the Department of Health in London. Home-study reports done on people living here will be passed through our Department to the central authority. In effect, though it is not designated as such, our own Department operates as a conduit to the central authority in London. This clause puts the existing procedures into law and establishes a central authority in London.

44.

In cases of prospective adopters living here, the home study reports would be done by an adoption agency here, passed to the Department, and the Department would pass those on. This sounds very convoluted but one of the historical reasons for it is that there has to be assurance that the home-study report is done by an approved adoption agency. Other countries would not take home-study reports direct from agencies. As a Department, we already get the home-study reports, and they are scrutinised by social services inspectorate - loosely, from an equality point of view. We are there to assure the central authority in London that these have been produced by an approved adoption society.

45.

Mr J Kelly: Does this apply to adoption within the island of Ireland?

46.

Mr Clarke: It is a slightly wider subject. Under this Bill, legally the South of Ireland is a foreign adoption. It is a designated country and those adoptions would be recognised in the UK. We should bear in mind that underpinning all this, intercountry adoption is already there. This is about regulating it and bringing things on to a statutory basis. I would surmise that intercountry adoption operating between us and the South is more likely to be in a family situation, in which case other factors apply. Adoptions within the family are set aside from the adoption agency, and that is just a practical approach.

47.

Mr Gallagher: Is it the case that an application for adoption must be made to central authority in England and is then passed back to a central authority here in Northern Ireland?

48.

Mr Clarke: Prospective adopters seek approval. They get a home-study report by an adoption agency here - it could be a trust or one of the voluntaries - and they get approval.

49.

Mr Sharp: The application comes from the trust to the Department. Once we have satisfied ourselves that everything has been done according to the rules, we pass it to the Department of Health in London. They attach to it a certificate of eligibility, which is what foreign countries are looking for. It has to be approved by the Department of Health, who accept that we have vetted it and accept that everything is in order. It goes from us to the Department of Health in London and then to whatever country.

50.

Mr Clarke: It is a rather procedural point.

51.

The Chairperson: Clause 3 amends the Adoption (Northern Ireland) Order 1987 to provide that, on an application to the court for a Convention adoption order, the order made will be a Convention adoption order and any such order will be subject to prescribed requirements.

52.

Mr Clarke: This is recognising Convention adoption orders, which are adoptions made in accordance with the Conventions.

53.

The Chairperson: Clause 4 amends article 39(1) of the 1987 Order to clarify the position with regard to Convention adoptions made outside the UK, Channel Islands and the Isle of Man. It is concerned with the legal status in Northern Ireland of children who are the subject of such adoptions.

54.

Mr Clarke: It is understood that adoption, under our domestic law, severs the birth ties and the legal links between a child and its birth parents. In effect this is creating the same legal status as those who are conventionally adopted. The legal position of the child is the same as if the adoption had been made within the jurisdiction.

55.

Unfortunately, some countries have adoptions which are sometimes called "simple adoptions", which are halfway houses of various sorts. Under this legislation, those "simple adoptions"would be recognised here, provided nobody challenged or raised any issues against it. Powers are granted to the High Court later in the Order to deal with any potential challenges.

56.

I do not know whether we quoted any situations in the explanatory document, but one that I can remember is if it is disadvantageous to the child to sever all connections - legal, financial or otherwise - with its birth parents. That child could be disadvantaged by us recognising a complete separation if it can, for example, inherit money. Powers are given to the High Court to deal with this. But basically the article is saying "simple adoptions" are automatically recognised here, but safeguards are provided.

57.

Mr J Kelly: Expanding on your last statement, are you saying that they sever all birth ties?

58.

Mr Clarke: In this country, and most Western European countries, adoption is viewed as the severing of all ties with the birth parents.

59.

Mr J Kelly: Coming back to what you are saying about the birth parents' nationality. You talked about legal things where there might be an inheritance. If a child from Vietnam or the Far East is adopted and subsequently discovers that a relative has left them an inheritance, does the legislation affect that kind of situation?

60.

Mr Clarke: It is slightly unclear. That is our adoption law. Adoption in this country means you have a complete break. I know in the modern world -

61.

Mr J Kelly: You go on to talk about inheritance -

62.

Mr Clarke: What I am saying is that the first part of that section states that those Convention adoption orders are just the same as our adoption orders. Their legal effect is exactly the same as ours. The bit at the end is a safeguard because if it was a "halfway house" type adoption of other countries, that could disadvantage the child. If it had stayed at home it could have inherited money, if it comes here the inheritance could be blocked; so it is a safeguard.

63.

Ms Hanna: You may have answered my question. Does the child takes on the nationality of the host country?

64.

Mr Clarke: When one gets the entry clearance to bring the child here for adoption that is part and parcel of that sort of immigration.

65.

Ms Hanna: There is no question of dual citizenship?

66.

Mr Clarke: Not under the adoption law, I am not expert enough to know, perhaps it could happen under other circumstances.

67.

The Chairperson: Clause 5 inserts a new Article 55A into the 1987 Order. This permits the High Court to annul, on application, a Convention adoption or a Convention adoption order on the ground that the particular adoption or order is contrary to public policy, or that the authority, which purported to authorise the adoption, was not so authorised.

68.

Mr Clarke: This is a limited power to set aside overseas adoption. It is a safeguard for the child's origins, in the sense that the Convention sets out many issues and the consents of various parties to the adoption. If it is challenged, the High Court can make a ruling, but it is a limited power to set aside an overseas adoption. This could be quite a serious matter as we are setting aside an adoption under the Convention, which would normally be recognised, and it is the High Court that will consider this matter.

69.

The Article continues -

"Except as provided by this Article the validity of a Convention adoption, a Convention adoption order, an overseas adoption or a determination shall not be impugned in proceedings in any court in Northern Ireland."

70.

As previously mentioned these Convention adoptions have the full validity of law. This is a limited power to challenge them. The person raising it would have to establish that it was contrary to public policy. If one asks what a contravention of public policy is that would have to be raised before the court, there is no clear line on that presently. One would have to demonstrate to the court that something had not been done in accordance with the Convention. If it has been done according to the Convention, and all the approvals are there, the court does not look any further. Our High Court does not rehear the whole case. It is only looking at whether the procedures were appropriate.

71.

Ms Ramsey: Does this mean that the court has limited power to set aside parts of the Convention?

72.

Mr Clarke: No that is not the case. This is a very limited power and to set aside even a single adoption made under the Convention would be a serious step. It would be a justifiable step if it were decided that the authority that authorised the adoption, or made the determination, was not competent, or there was something wrong procedurally.

73.

Ms Ramsey: Would you give us an example?

74.

Mr Clarke: We are relying on several things, for example, the authority in the foreign country that completes the home-study report, or the court in the foreign country that made some order or determination. Either may not have the appropriate power, and that could be demonstrated at a High Court here. This power is quite limited. It does not provide for a case to be reheard, as that could be disastrous if the child is adopted in another country. They would have to go through the whole process again. The situation is more likely to be raised when there is some real concern about the child - we have no practice in operating this here, or in England, yet. One has to apply to the court so one would presume that an issue has been raised in an application before the court and something has gone disastrously wrong. The court would be looking to see if all the procedures were in accordance with the Convention.

75.

Mr McFarland: I would like to enquire about article 55B, paragraph (2), which says that the High Court has no right to judge on this matter unless the child and the adoptive parents "habitually reside" in Northern Ireland. If I were rich, I could have my house in Dubai, my place in the Bahamas and my place here. What does "habitually reside" mean, as today people have homes all over the place? Some have summer houses in Majorca, et cetera.

76.

How do we judge what comes under the authority of the High Court here? If someone lives in Majorca for half the year and here for half the year, does that constitute "habitually" living here?

77.

Mr Clarke: I suspect that the court would have to determine whether someone's application gave rise to that issue.

78.

Mr McFarland: But it says that the High Court cannot consider the application unless the people are "habitually reside" here.

79.

Mr Sharp: It is a bit like the term "public policy". It has not been defined, and there have been many arguments in court about what habitual residence is; it depends on the circumstances of a particular case.

80.

Mr Clarke: I cannot give you a definitive answer. I suspect that each case would have to be considered separately and the meaning of "habitually resides" determined. I doubt whether the relevant period can be specified as six months, four months, or whatever.

81.

Mr McFarland: That seems to be quite a loose description for a piece of legislation.

82.

Mr Clarke: I could say that someone was "habitually" here if they lived here in one year but did not live here another year.

83.

Mr McFarland: That is the point that I am trying to raise: the term seems slightly loose. Should we consider putting in something firmer? Most people who live here are on the electoral register - whether they like it or not, whether they vote or not. That means that they have a house or somewhere to live, and determines whether they are habitually here. The term is slightly loose, given that it could decide whether the High Court is even allowed to consider an application.

84.

Mr Sharp: It would be difficult to define it too tightly. Circumstances can vary so much from case to case, and the person's intentions are an important factor.

85.

The Chairperson: Does European law cover it?

86.

Mr Clarke: We could consider whether there is something that we could put in.

87.

Rev Robert Coulter: The definition used in the Isle of Man allows people only 90 days out of the island if they are to be considered to be resident.

88.

The Chairperson: That is an interesting one. We will park that issue and come back to it. Mr Clarke, would you examine that important point and any European dimension?

89.

Mr Clarke: Yes.

90.

The Chairperson: Clause 6 deals with definitions.

91.

Mr Clarke: The clause inserts into article 2(2) of the 1987 Order the definitions relating to the Convention. The definition of "the Convention" is self-evident. "Convention adoption" is an adoption made outside the United Kingdom. "Convention adoption order" refers to orders that are made here, as opposed to those made abroad, which are simply called "Convention adoptions". "Convention country" is defined as a country in which the Convention is in force.

92.

The Chairperson: Clause 7 inserts a new paragraph (2A) in article 3 of the 1987 Order.

93.

Mr Clarke: Under the 1987 Order, as presently drafted, the trusts have a responsibility to provide an adoption service. That is a fairly general statement. This amendment simply brings the intercountry adoptions into the same raft of provisions. The way it is worded is to catch all foreign adoptions and not simply Convention adoptions, because that would create an anomaly as there is still the possibility of adoptions outside the Conventions. That is why you have this form of words and not the Convention adoption form of words.

94.

Ms Ramsey: It says that each trust is to maintain an adoption service for its area. In my experience of trusts, some provide a better service than others. Will there be a problem financially for trusts, or will they provide a better adoption service than there is at present?

95.

Mr Clarke: I do not want to comment too much on the quality of their service, as it would widen this debate too far. The adoption service is something that is already in the 1987 Order, with regard to domestic adoptions. This is saying that this intercountry adoption work comes within it. Intercountry adoptions are already there and trusts are already performing these functions. This is saying that it should form part of their adoption service, so that the same standards apply. There are intercountry dimensions, but basically they should be providing the same service. It is just a recognition that the same standards should apply in relation to the work that they do.

96.

With regard to your query on resources and whether this creates a requirement for additional resources, that is quite a tricky one to answer because they already perform the functions. It is already being done and this legislation gives it recognition in statute.

97.

The Chairperson: Some trusts or boards charge, and some do not. I have been involved in cases where the cost was £3,000. Are we talking about boards or trusts?

98.

Mr Clarke: Trusts.

99.

The Chairperson: Does the Department have a role here? Should something be included in the Bill about it? It seems unfair that the costs can vary from £3,000 to nothing across the trusts.

100.

Mr Clarke: That would arguably be ultra vires. Perhaps Dr Harrison could talk about the charges.

101.

Dr Harrison: As you know, trusts may charge for any service they deliver. The intercountry adoption service is the first children's services charges to be introduced. It was done because trusts did not have the resources to carry out intercountry adoption services on top of their existing domestic services. As far as I am aware, the current position is that trusts in three of the health and social services boards have introduced charges of £3,000. One board is still considering whether or not it will charge. It is a difficult issue that raises questions about equality of access to services. Members of the Committee will probably know that intercountry adoption is a very expensive process. All sorts of costs have to be met, not least the cost of visiting the country. Trusts are within their statutory rights in charging for this service.

102.

The Chairperson: It is difficult to do anything about costs to other countries. I accept your point about the statutory rights of trusts. Is there not a role for the Minister to produce guidance in order to get uniformity across trusts?

103.

Mr Clarke: There would be a guidance role. Obviously, the legislation has yet to be implemented. The special commission has made recommendations about itemised costs. Your point, Chairman, is about standardisation across trusts.

104.

The Chairperson: That is absolutely correct - uniformity is essential.

105.

Mr Clarke: These things are expensive, but standardisation across trusts is essential.

106.

The Chairperson: This may not be an issue for the Bill itself, and we are moving outside the remit of the Bill. I can think of at least three cases in which I have been involved over the past two years in which this issue has come up. It causes a lot of annoyance. It is a difficulty in the relationship between the Department and the boards and trusts in trying to do any audit tracking. Obviously, you will have to think about this.

107.

Mr Clarke: You have written to us about it. It has been raised before and we have an idea on how it should be addressed in the implementation of the guidelines.

108.

The Chairperson: Could you take that on board and come back to us?

109.

Mrs Robinson: I think it would be appropriate for this Committee to deal directly with the Minister on that issue. In the costings she should set down the necessity for uniformity across the four health boards. It would be unfair for a couple to discover that they paid £3,000 for an adoption and that someone else in another part of the Province paid £8,000. That would be scandalous. The issue in Northern Ireland is geography. It is better to have a heart attack in one locality as opposed to anywhere else in the province. Those ambiguities and inequalities exist. As a Committee, we should deal with the issue quickly and put down our marker.

110.

The Chairperson: That is a fair point.

111.

Mr Gallagher: Is there an equality dimension to this Bill? Has the issue arisen under that heading?

112.

Mr Clarke: The Bill is about the regulation of activity. It does not promote it. It is possible that there is an equality issue between different charges and so forth. However, that is slightly outside the context on which I can speak today.

113.

Mr J Kelly: Do you know why different rates exist?

114.

The Chairperson: It is probably to do with funding and the fact that each trust may have more or less money than the others. They have a statutory right to charge. However, the difference does not seem morally right. Obviously mistakes were made.

115.

Mr Clarke: It was pointed out to me that some local authorities charge more than our average. Equality is the key issue. The special commission linked to the Convention suggested insuring that adopters received an itemised statement. That is one way to find out what you are paying for. You can see that everyone is paying for the same type of thing.

116.

The Chairperson: The Committee will make a decision about the involvement of the Minister. If you can clarify any of these matters, perhaps you would let us know before you return on 7 February.

117.

Dr Harrison: The charging anomaly emerged because of the volume of enquiries in certain trusts in comparison with others. For example, trusts that currently do not charge have the least number of people seeking intercountry adoption and they are able to fit them into their standard agenda. That is most likely to change with the trends in intercountry adoption.

118.

The Chairperson: Clause 8 amends article 4 of the Order. The amendments provide that a voluntary adoption society may be approved to act as an adoption agency either for adoptions that are not intercountry adoptions or for all adoptions, including intercountry adoptions.

119.

Mr Clarke: This provides a vehicle whereby the Department can approve voluntary adoption agencies for the purposes of intercountry adoption. It is a check on standards, so that the other country can be assured that the agency carrying out these functions has official approval. It splits general adoptions and intercountry adoptions. It will enable voluntary adoption agencies - there are only two here at present - to carry out intercountry adoption, if they apply and are approved.

120.

The Chairperson: It has been pointed out to me that in Britain you can have independent assessors. What is the position here with this Bill? Have I got that wrong?

121.

Mr Sharp: Could you clarify what you mean by independent assessors, as we are not familiar with that term?

122.

The Chairperson: I cannot clarify it.

123.

Mr Sharp: This came up in your consultations. We looked at it but were not quite sure what it was.

124.

The Chairperson: There seems to be such a thing and I am seeking information from you.

125.

Dr Harrison: Private individuals in England have carried out adoption assessments - perhaps that is what you are thinking of. This Bill will actually do away with that. In future, all adoption assessments will be carried out by approved adoption agencies.

126.

Mr Clarke: That brings us back to the issue we talked about earlier.

127.

The Chairperson: Is that similar to what is happening in England, only we are now doing away with that system?

128.

Dr Harrison: We have never had that.

129.

The Chairperson: Do they still have it or have they done away with that?

130.

Mr Clarke: In relation to intercountry adoptions, they would be prevented from having that. This provision would address the present difficulty.

131.

The Chairperson: They cannot do it for intercountry adoptions, but they can do it for adoptions within the country. Is that right?

132.

Mr Clarke: I cannot speak authoritatively for England but I suspect that that is the case. I probably heard that there are independent people.

133.

The Chairperson: Clause 9 inserts a new paragraph in article 13 of the Order. It provides that where a child habitually resident outside the United Kingdom, the Channel Islands and the Isle of Man is to be adopted in Northern Ireland by an adoption order other than a Convention adoption order, the child is required to have had its home with the prospective adopters for a period of at least six months before an adoption order may be made. The period of six months is only to apply to those cases where the placement of the child was made by an adoption agency.

134.

Mr Clarke: Effectively, this is to ensure that the child is placed with the prospective adopters for a period of time before the adoption process can be completed. Obviously, in any adoption there has to be a time for bedding in.

135.

Mr McFarland: Forgive me, I am a little dozy, but can you explain the last two lines of clause 9 which state that:

"paragraph (1) shall have effect as if the reference to the preceding 13 weeks were a reference to the preceding 6 months."

136.

In what context does the 13-week term apply? All other references are to periods of 12 or six months.

137.

Mr Clarke: The period of residence which applies in the Adoption (Northern Ireland) Order 1987 is 13 weeks. The trouble with this legislation is that it necessitates the amendment of other pieces of legislation. I can read the Order now, because I have it in front of me.

138.

Mr McFarland: Can you explain the clause?

139.

Mr Clarke: I appreciate your confusion, because I myself find it necessary to cross-reference between the pieces of legislation. The 1987 Order stipulates that an adoption order shall not be made unless the child has, at all times during the preceding 13 weeks, had his home with the applicants, or one of them. That is where the period of 13 weeks comes from.

140.

Mr McFarland: Does this clause then state that the words "six months" are to be inserted where the term "13 weeks" appears.

141.

Mr Clarke: Yes.

142.

Mr McFarland: Is there not an easier way to make this clear?

143.

Mr Clarke: That is a drafting issue. I am not sure if there is an easier way of expressing this. When other pieces of legislation are being amended, it is sorely tempting to try to rewrite everything, and to keep it all together.

144.

The Chairperson: Clause 10 concerns the registration of certain intercountry adoptions. It provides for the registrar general to keep records of certain intercountry adoptions. Subsection (1) provides for an amendment to article 50 of the 1987 Order which, in addition to entries currently made pursuant to adoption orders, will require the registrar general to make such entries in the Adopted Children Register as may be required under article 53 of the Order as amended by clause 10(2).

145.

Mr Clarke: This provision is largely concerned with procedure. It relates to the records kept by the registrar general and the entries made in his register. The underlying aim is to allow people, at a later stage in their lives, to find out about their birth parents. Openness in adoption is taking increasing priority. The clause is designed to ensure that the records and the registrar general's office are helpful to those seeking this type of information.

146.

The Chairperson: Clause 11 inserts two new paragraphs in article 2 of the 1987 Order. Paragraph (3A) extends the interpretation of the 1987 Order on arrangements for adoption.

147.

Mr Clarke: This is a key provision, and I am glad we have taken the opportunity to discuss it. The key words are:

"references to arrangements for the adoption of a child include references to arrangements for an assessment for the purpose of indicating whether a person is suitable to adopt a child or not."

148.

That links in with the requirement that assessment for the purposes of adoption must be carried out by an adoption agency. At present, under the 1987 Order, a domestic adoption may only be carried out by an adoption agency, with exceptions made in the case of relatives. The insertion of this provision clarifies the arrangements for assessment.

149.

In the 1987 Order

"arrangements for the adoption of a child"

are words that already exist. The Bill spells out that

"arrangements for the adoption of a child include references to arrangements for an assessment for the purpose of indicating whether a person is suitable to adopt a child or not."

150.

That is essentially the home-study report and its inclusion is a key part of the legislation. It ensures that any home-study reports are carried out by approved adoption agencies. It incorporates the existing legislation. I may not have explained that - it is a rather convoluted matter unless the pieces of legislation can been seen simultaneously.

151.

Ms Ramsey: I would like to return to the issue of the twins who are currently in the news. If we take on board that people have to overcome many complex issues in order to adopt, can a person go to America or wherever, adopt a child and come back here without the Department's knowledge?

152.

Mr Clarke: Legally they could not do that.

153.

Mr Sharp: They could, but they would need entry clearance. That would be the issue.

154.

Mr Clarke: We do not want to get too involved in the details of the case. The couple went to the United States armed with a home-study report, which had been produced, not by an approved adoption agency in accordance with the legislation, but through a loophole in the law. The relevant provisions of the Adoption (Intercountry Aspects) Act 1999 had not yet been adopted in England. If the Act were in place, the provision would impact on that type of case, in that persons would be known to the UK authorities because they would have had a home-study report done.

155.

Mrs Robinson: Alan Sharp dealt with prison sentences meted out to people who have bypassed the legal procedures. Can he clarify whether it is a matter of policy that the child, having been taken into care, does not go back to parents who have been in jail? Moreover, can those same parents go through the proper channels next time to apply for an adoption, or are they deemed unsuitable and struck off the register?

156.

Dr Harrison: That is a difficult question. I am sure you appreciate that each individual case needs to be looked at on its own merits. In the event of parents going to prison, the trust would have to act to secure the welfare of the children. Whether or not the child would automatically be taken from them would depend on their circumstances. The trust would need to investigate a whole range of issues. As to whether the parents would be prevented from going through the proper channels again, we could not say. They would be entitled to be assessed as suitable adopters and their circumstances would be examined carefully.

157.

Mrs Robinson: My concern is that people who have bypassed the legal procedures may not be suitable parents. They may have avoided the system because they would never be deemed suitable.

158.

Dr Harrison: Absolutely. However, the fact that they bypassed the system does not necessarily mean that they would not be suitable parents. You are quite right in concern about people bypassing the system and their reasons for doing so. In some cases it is ignorance.

159.

Mrs Robinson: It would tell you something, about the applications and that would be taken into consideration.

160.

Mr Clarke: Presumably, in a particular case, you are faced with the dilemma that if the child has formed a relationship with the family, you cannot simply say they are not suitable to adopt. You would have to look at the particular case. The courts would be involved.

161.

Dr Harrison: It would depend on the individual circumstances.

162.

Mr McFarland: There was the recent case of a couple who had fostered two children with whom they had developed a bond. Social Services then decided to move the children. The family ran away to Ireland and the children were taken from the foster parents, but they are now united as a fully adopted family. That is a happy story despite Social Service's best efforts.

163.

Ms Ramsey: If the child's rights are paramount and if the child and the foster family have bonded, some foster parents might say that a fine or a six-month jail sentence might be worth serving. What do you think about that?

164.

Mr Clarke: Complex human relationships could underlie all those things. As Dr Harrison has already mentioned, that would be a matter for the courts to decide. Sending someone to prison for three months may have a detrimental effect on the child. People underpin all human relationships under all those circumstances. Hard and fast rules are sometimes best left to the courts.

165.

Dr Harrison: There are highly individual circumstances in each case that require the courts' determination. It is a difficult area.

166.

The Chairperson: Clause 12 inserts an additional article 58ZA into the 1987 Order. The new article makes it a criminal offence for a person habitually resident in the British Islands into bring to the United Kingdom for the purpose of adoption a child who is habitually resident outside those islands unless they comply with requirements to be prescribed by regulations. The term "British Islands" is defined as meaning the United Kingdom, the Channel Islands and the Isle of Man.

167.

Mr Clarke: This is one of the more direct provisions. It makes it an offence to bring a child into the country in contravention of the regulations, which will be copious and which are undoubtedly being examined in the context of the Adoption (Intercountry Aspects) Act 1999 in England and Wales as we speak. I imagine that full restrictions will be tight.

168.

Mr McFarland: Clauses 11 and 13 mention the United Kingdom, the Channel Islands and the Isle of Man. However, for some reason clause 12 elects to use "the British Islands" and its definition in 58ZA "a person habitually resident in the British Islands who at any time brings into the United Kingdom...". Why does clause 12 not say the person habitually resident in the Channel Islands and the Isle of Man, who at any time brings into the United Kingdom for the purpose of the adoption of a child. If a person is habitually resident in the United Kingdom, they would not be bringing a child into it.

169.

I do not understand why "the United Kingdom, the Channel Islands and the Isle of Man" was used on one page and then "the British Islands" is introduced. The British Islands could be confused with British Isles, but you set out its definition. It is more a drafting question than a legal question.

170.

Mr Clarke: We are talking about the creation of an offence. The Adoption (Intercountry Aspects) Bill can only address offences in Northern Ireland but it would be incongruous of us to say that it was an offence to bring a child into Northern Ireland in contravention of the regulations without mentioning the other parts of the United Kingdom. In cases where there is freedom of movement, for instance between Great Britain and here, the child could be brought into England and then brought over here. But that is creating an offence in Northern Ireland. That offence already exists under legislation in Great Britain. By bringing a child into the United Kingdom, the offence is being created in Northern Ireland. The emphasis is not on where the child is coming in. The offence is committed in Northern Ireland by whoever is bringing the child into the British Islands.

171.

Mr McFarland: The United Kingdom is the United Kingdom of Great Britain and Northern Ireland. In clause 12 should "United Kingdom" read "Great Britain, the Channel Islands and the Isle of Man"? Northern Ireland is in the United Kingdom.

172.

Mr Clarke: It is a technical and legal matter, but I will try to explain it. If someone brings a child into England, the child enters the United Kingdom in England. The Bill makes it an offence in Northern Ireland for the person who brought the child into, for example, England. If it were not couched in that way, the person would not have committed an offence if he or she had brought the child into England first and then came to Northern Ireland. It is to do with where the offence is being created.

173.

Mr McFarland: Until now, the clauses have referred to bringing a child into the United Kingdom. Clause 11 specifies the United Kingdom - which is Great Britain and Northern Ireland - the Channel Islands and the Isle of Man. I thought that the Isle of Man and the Channel Islands were part of the United Kingdom.

174.

Mr Clarke: They are not.

175.

Mr McFarland: Why have the Channel Islands and the Isle of Man not been mentioned elsewhere in the Bill when the United Kingdom has been mentioned? Clause 11 is the first time you have moved away from the term "United Kingdom" and specified it as "the United Kingdom, the Channel Islands and the Isle of Man". Northern Ireland is in the United Kingdom and if you are resident there you are not bringing a child in anywhere.

176.

The Chairperson: Mr McFarland has a point that needs to be resolved. It does seem a bit odd. The terms "British Islands" and "British Isles" are confusing.

177.

Mr Berry: That matter must be cleared up.

178.

Mr McFarland: I would like this matter parked until the Committee gets clarification on it.

179.

Having mentioned the United Kingdom elsewhere in the Bill, why has the Channel Islands and the Isle of Man been introduced. Perhaps they should have been mentioned when the United Kingdom was mentioned previously.

180.

Clause 11 mentions the United Kingdom, the Channel Islands and the Isle of Man. Clause 12 then introduces a new definition of "the British Islands". Why is the United Kingdom, the Channel Island and Isle of Man acceptable in clause 11 but not in clause 12? It is close enough to the British Isles, which includes Ireland - although some would dispute that - to be confusing. "Isles" is a Scottish word. Someone from abroad using correct English might refer to the British Islands rather than the British Isles. There is a potential for confusion.

181.

Like all legal matters, the clearer you can make this the better, so that nobody from the far end of the world who is reading this is in any doubt as to what you are speaking about. I am not having a go at you, but could you please have a look at this. Can you explain why, in clauses 11 and 13, it is all right to refer to something, while clause 12 introduces a new terminology which is confusing.

182.

Mr Clarke: I can. I do not want to take up too much of your time talking about this.

183.

The Chairperson: We will park this until next time.

184.

Mr Berry: The issue that Alan McFarland raised will be parked and we will wait until Mr Clarke comes back to us with clarification.

185.

Have there been many criminal offences in Northern Ireland?

186.

Mr Clarke: There is no offence at the moment, so by definition there have been none. If you are asking whether we are aware of any incidents, I can answer your question. We have anecdotal evidence.

187.

Dr Harrison: Children have been brought into Northern Ireland by people who are not approved adopters.

188.

Mr Berry: What has happened?

189.

Dr Harrison: The trust has been notified and has had to approve them retrospectively - in every case, I think. Obviously this is not desirable.

190.

Mr Berry: This clause deals with that issue.

191.

Mr J Kelly: I am confused by Alan McFarland's intervention. I do not know whether he is making a political point or -

192.

Mr McFarland: No, not at all. I just think that the drafting is confusing.

193.

The Chairperson: We are parking that anyway.

194.

Mr J Kelly: In clause 12 (5) it says:

"In this Article 'the British Islands' means the United Kingdom, the Channel Islands and the Isle of Man."

In clause 11 it says:

"under the law of a country or territory outside the United Kingdom, the Channel Islands and the Isle of Man."

It is fairly clear to me.

195.

The Chairperson: We are coming back to that anyway.

196.

Rev Robert Coulter: What is the legal basis for the difference in the penalty for the offence between clause 1 and clause 12?

197.

Mr Clarke: You have raised a point that is worth going over. This is linked to the provision in the existing Adoption (Northern Ireland) Order 1987. A new article will be inserted into the 1987 Order. The 1987 Order already incorporates the offence of taking a child out of the jurisdiction, with a corresponding penalty. This is the other way round and creates a new offence of bringing a child into the jurisdiction. The penalty for that offence is consistent with the one that sits alongside in the 1987 Order. That is the straightforward answer. The penalty for the first one is consistent with an existing provision in the law. I do not know whether that is a conclusive argument.

198.

Rev Robert Coulter: It is not, because it says in clause 1(3)(b):

"provide that any person who contravenes any provision of the regulations is to be guilty"

and the penalty is there.

199.

Mr Clarke: That means the regulations made under clause 1. You have raised an interesting issue. The line we have taken in clause 12 is to be consistent with the existing adoption law, which is why that offence is stated there. There is a consistency issue. We would be amending our own adoption law in relation to something that is not covered by this.

200.

The Chairperson: We are parking clause 12 until 7 February. Obviously, this link with clause 1 is very important.

201.

Mr McFarland: If we discover something like this, which is confusing and affects a clause that we have passed already, is there not logic to parking that clause? Clause 1 would be parked temporarily until this issue is resolved, because the Committee may recommend altering clause 1 to "six months".

202.

Mr Clarke: You have raised an anomaly on the offence issue.

203.

The Chairperson: We have agreed to clause 1, but I have consulted with the Committee Clerk and we can park clause 1 along with clause 12. It is somewhat unusual to agree a clause and go back on it but it is important that we have clarification. We have gone well past the scheduled hour but we will stop at this point because we have a very busy second session.

Members present:
Dr Hendron (Chairperson)
Mr Gallagher (Deputy Chairperson)
Mr Berry
Rev Robert Coulter
Ms Hanna
Mr J Kelly
Mr McFarland
Ms McWilliams
Mrs I Robinson

Witnesses:
Mr J Clarke ) Department of Health, Social
Dr H Harrison ) Services and Public Safety
Mr A Sharp )

204.

The Chairperson: Thank you for coming, and I apologise for keeping you waiting.

205.

We reached clause 12 the last time we met. We had also some queries, which we can perhaps leave to the end.

206.

Mr Clarke: This is the part of the Convention that deals with reciprocity. It says that we in the jurisdiction would recognise the decisions of the authorities in the Convention country, which would include those that had the powers to authorise and annul adoptions. It is worded in that way because the authorities themselves will vary from country to country, and because we are dealing with a very long list of countries. It also states that the decisions would be recognised here, but that would be subject to a provision in clause 12. Clause 12 states that the power of the other country's authority to make these determinations is challengeable in the High Court here. Therefore, it is mainly a technical provision to do with reciprocity.

207.

The Chairperson: In the memorandum it states that this clause

"effects minor and consequential amendments to the 1987 Order, the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 and the Adoption (Hague Convention) Act (Northern Ireland) 1969."

208.

Mr Clarke: We do not have any particular notes. We are just taking the clauses as they read regarding their definition of things. For example, an overseas adoption means the same here as it does in the legislation operating in England, which is the Adoption Act 1976. They are really technical amendments and are not substantive.

209.

The Chairperson: We raised the question about the case of the twins on the Internet, but we will come to that later.

210.

The Chairperson: Clause 15 defines certain terms used in the Bill.

211.

Mr Clarke: Again, I do not have any specific points to note, but clause 15 is an interpretation provision.

212.

Mr Clarke: The Committee may wish to talk about the commencement provision.

213.

The Chairperson: The schedule sets out the text of the Convention. It is based directly on the Convention, so I doubt if it will be queried.

214.

Mr Clarke: It was reproduced in the schedule because the purpose of the Convention was to make regulations et cetera. Therefore, including the text of the Convention will be of importance when regulations are made. It will show that the regulations are within the vines of the legislation.

215.

The Chairperson: We shall now return to some queries we have had.

216.

Mr McFarland: Do the financial effects of the Bill have to be passed?

217.

The Chairperson: That matter has to be addressed. Is it correct that the Kilshaw and Internet twins' case will not be covered by the Bill but by United Kingdom legislation.

218.

Mr Clarke: We do not want to cover United Kingdom- wide legislation because at present a lot of issues are being considered regarding the potential loopholes and safeguards for children.

219.

The Chairperson: Is the loophole discovered in the Kilshaw case part and parcel of that?

220.

Mr Clarke: Yes, that is part and parcel of it. I could say more about that, but the situation across the United Kingdom is fluid at present with regard to what needs to be done to close that loophole.

221.

The Chairperson: Will Northern Ireland need new legislation for that or will it be covered in United Kingdom legislation?

222.

Mr Clarke: The preference is to have separate Northern Ireland legislation.

223.

The Chairperson: Please keep the Committee informed on that matter. Will we need to amend the legislation? If changes have to be made, will they have to be made to primary legislation? That is a problem for the Committee.

224.

Mr Clarke: It is a problem for all of us because it is a matter of timing. I do not know what the amendments will be, but it is likely that there will be a need for primary legislation to deal with some of the loopholes. Some of the legislation would go further if other issues such as immigration needed to be addressed.

225.

The Chairperson: Will the passage of this legislation have to be halted unless that is clarified?

226.

Mr Clarke: This legislation contains safeguards. One safeguard is the home study report, which would close one important loophole. There is also the provision about restrictions on bringing children to Northern Ireland from abroad, which is in contravention of regulations. Those provisions will have to be introduced as they are important safeguards for children.

227.

Ms McWilliams: Did the Kilshaws circumvent the home study report or was that not in the legislation?

228.

Mr Clarke: My understanding is that, in England and Wales, the home study provision is the aspect of the Adoption (Intercountry Aspects) Act 1999 that was introduced. However, it had not been commenced at the relevant time for the home study report carried out in the Kilshaw case. In other words, we cannot say that they circumvented the law because it was not in operation at that time.

229.

Ms McWilliams: At least that matter has been addressed in this legislation.

230.

Mr Clarke: That is correct, and that is why I made the comment about commencement at that moment, it is an appointed day commencement provision, which does not rely on any subordinate rule or regulation.

231.

The Chairperson: Our problem is that the Committee stage must go to print by 6 April 2001, so that just gives us March. Whatever we do has to happen before that date.

232.

Mr Clarke: I am trying to be as helpful as I can.

233.

The Chairperson: I appreciate that. It is very complex.

234.

Mr Clarke: My perception is that we will see primary legislation in England and Wales between now and then. If we can pick up some of that legislation, that is all well and good. However, the safeguards have to be in place. Another safeguard is bringing the child into the United Kingdom without being in contravention of the legislation.

235.

The Chairperson: Shall we continue as normal then?

236.

Mr Clarke: That is our stance, otherwise we could be holding this open for some time.

237.

Ms McWilliams: I asked one of the adoption agencies for help with the Bill, and they pointed out that they were concerned about the resource implications. Although the numbers are small, their view was that carrying out the home study visits would add to the workload of the registered bodies. Their argument was that, if they are asked to carry out that work with a limited budget, it may affect domestic adoptions. It seems that domestic adoptions in Northern Ireland are proportionately lower than elsewhere, which is of some concern. However, if they are asked to carry out more of those type of adoptions, will it eat into the budget? The explanatory memorandum says that it would not, but what is your view?

238.

Dr Harrison: At present, the number of intercountry adoption applications in Northern Ireland are low in comparison with areas in England and Wales. We do not encounter the problem that the Kilshaw case demonstrated, in that all of our intercountry adoption home study reports have been carried out by qualified social workers from registered adoption agencies. The number of intercountry adoption applications is rising, but an issue that arose at the last Committee meeting was that couples are being charged for the home study report. My understanding is that all boards and trusts will begin to charge for such a report. Technically, therefore, the service should be self-financing, enabling sessional workers to be brought in as necessary. Alternatively, it should enable the work to be subcontracted to voluntary organisations.

239.

You may be aware that the Family Care Society is already undertaking a number of home study reports for certain trusts in the Province. Therefore there should not be any major resource implications for boards and trusts.

240.

The Chairperson: Thank you very much. Before we return to matters arising from clause 1, can I draw your attention to this email, which the Committee Clerk has received from Faith Henderson. She says

"I would like to convey, as an intercountry adoptive parent, some of my concerns in relation to the Intercountry Aspects Bill."

241.

She talks about the lack of training available for staff in adoption agencies involved in that specialised area. She continues

"This sometimes leads to unnecessary and frustrating time lapses in processing the home study to the panel."

She goes on to say

"it is realised it is not in the Bill's remit to address post-placement health status confirmation. This, I feel, is neglected to the children, parents and professionals involved's detriment. Finance is always referred to - but as Ms de Brún stated on 4/12/00, 'the benefits, happiness and fulfilment of childless couples and their adopted children in a good home cannot be overestimated' ".

242.

We shall refer that to the Minister. It does not directly concern our work on the Bill, but it is important that it be recorded. We shall move back to clause 1, and hand over to Mr Clarke.

243.

Ms McWilliams: I have read this, and although I am aware that the issue of post-placement health checks does not relate to this Bill, the question of training came up indirectly when the Bill was first laid before the House, because of the issue of the umbrella body and its state of development, as well as related local aspects. Do you have anything specific to say on the financial implications? Is the Bill required to address any special expertise and training not already covered in the Adoption (Intercountry Aspects) Act 1999?

244.

Dr Harrison: Training is certainly a big issue. Training for social workers carrying out home study reports relating to intercountry adoption applications arose in the social services inspection of adoption services. We have training recommendations on the question in the overview report, which is due in May 2001. The Department will be looking at the resources associated with the training recommendations to see whether we can find the additional sums required. The Bill need not address anything like that at the moment.

245.

The Chairperson: We shall go back to clause 1. The Committee had asked for clarification on the difference between the term of imprisonment referred to in clause 1 and that referred to in clause 12. If my memory serves me well, the terms in question were of three and six months respectively.

246.

Mr Clarke: I am unsure in which order I should take those. The penalty in clause 12 was an amendment to the existing Adoption (Northern Ireland) Order 1987, which already includes a penalty for taking a child out of the jurisdiction. It introduces into the domestic Order the offence of bringing a child into the jurisdiction. The penalty in the existing Adoption (Northern Ireland) Order 1987 is stated at level 5 on the standard scale, or a prison term not exceeding six months. We decided to be consistent with our own Order, since the Adoption (Intercountry Aspects) Act 1999 in Great Britain has three-months imprisonment rather than a six-month term. The Committee has highlighted the issue of consistency. The three-month penalty in clause 1 reflects the position of the Adoption (Intercountry Aspects) Act 1999 in England and Wales. Therefore, there is the issue of consistency in terms of the maximum penalty.

247.

The Chairperson: I am looking at the Bill. In clause 1(3)(b), on line 12, it says

"provide that any person who contravenes any provision of the regulations is to be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months" .

Should that not read six months?

248.

Mr Clarke: It is level 5 on the standard scale or six months in clause 12. That clause inserts the amendment to the 1987 Order. Six months is consistent with the offence that already exists in the 1987 Order - the taking of a child outside the country. It would appear slightly anomalous to differentiate between two provisions sitting alongside one other in the 1987 Order - one concerning the taking of a child out of a country in contravention of the law and the other bringing a child in.

249.

Mr McFarland: Although those are small offences, three months is unlikely to deter anyone who is attempting to do that. The sort of person who will do it illegally will undoubtedly do it anyway. Six months makes a better stab at that. We should harmonise the prison term at six months, as that would stand a better chance of working as a deterrent.

250.

Mr Clarke: That is a policy matter, but where is this coming from?

251.

The Chairperson: If you use words like 'not exceeding six months,' it indicates that it could still be a maximum of six months.

252.

Mr Clarke: I appreciate that those are all maximum sentences. However, courts are notorious for not issuing them fully.

253.

Mr McFarland: If the Committee takes this view - that six months should be harmonised - are you able to take that on and make it happen, or are we introducing Committee amendments to the legislation once again?

254.

Mr Clarke: I am quite happy to -

255.

Mr McFarland: If the Committee wishes to raise the term to six months in clause 1, and harmonise that with the Bill, is the Department able to simply take it off, redraft it and solve the problem? Otherwise, are we introducing amendments before the House?

256.

Mr Clarke: That is purely procedure. I have no problem with taking it away and changing the penalty.

257.

Ms McWilliams: Will the Department do it?

258.

The Chairperson: Will the Department do it, or will we do it? Do we want to do it?

259.

Mr McFarland: It is easier for the Department to do it. We would have the whole rigmarole of introducing amendments.

260.

Mr Clarke: I am a little uncertain about the procedures. However, I would have no problem with taking it away and doing what is necessary to make it consistent.

261.

The Chairperson: If the Committee agrees, we can write to the Department, suggesting a change to "not exceeding six months".

262.

Mr McFarland: The view of the Committee is that the Department should consider the matter. When we spotted such anomalies in the past, the Department officials would ask us to leave it with them to sort it out. We would be happy to do that.

263.

Mr Clarke: I shall not argue about the consistency point. I would, however, alert you to the fact that that penalty would be inconsistent with what applies other parts of the UK. We are already inconsistent in relation to the penalty for the other offence. We shall examine the matter.

264.

The Chairperson: We shall write a letter.

265.

Is the Committee content that the Bill should read "six months" instead of "three months"?

266.

Mr McFarland: Would there be any implications, if we were to change it to "six months"?

267.

Mr Clarke: I cannot see any implications. It would still be a case for a Magistrate's Court, and it would not cause any difficulty if we were to make that change. The only issue is that the provisions would be different from those that apply in the rest of the UK. The Bill is already different to the GB legislation in relation to the existing offence, anyway.

268.

The Chairperson: The Bill will read "not exceeding".

269.

Mr Clarke: Yes.

270.

The Chairperson: The Committee felt that in the new paragraphs to be inserted into the 1987 Order, the words "habitually reside" should be defined.

271.

Mr Clarke: Needless to say, we have been dashing around trying to see what others think about it. "Habitual residence" is defined only in case law. The House of Lords defines it as a person's abode in a particular place or country which he has adopted voluntarily for settled purposes for the time being, whether long or short-term.

272.

The meaning of "habitually resident" depends on a number of factors, including the person's intention to continue to reside in a country. Having a fixed period that could be regarded as habitual residence would not work. A person could have been here for only a short time but have the obvious intention to reside here for a longer period or indefinitely. The term does not have a tidy definition, but there are reasons for that.

273.

Mr McFarland: If there is case law on this, and the House of Lords described it in those terms, and that is the system, then I do not see why we should not use it.

274.

Mr Clarke: It is subject to change.

275.

The Chairperson: We could try.

276.

Ms McWilliams: How much money have you got?

277.

Mr Clarke: We will use their inherent discretion.

278.

Rev Robert Coulter: The noble Lords can be rather abstract at times.

279.

The Chairperson: They can, except when it comes to funds.

280.

The Committee was concerned about the charging arrangements for inter-country adoption assessments. As agreed by the Committee, a letter was sent to the Minister on that subject. I remember that there were big variations.

281.

Mr Clarke: The subject of the letter was the inconsistency. Apparently, two trusts do not charge at all at the moment. That might change.

282.

The Chairperson: It was not that way about a year ago. I think that there were more trusts that did not charge.

283.

Mr Clarke: Your previous letter mentioned a much higher level - about £10,000 or thereabouts. Or was it £3,000? However, two trusts, as I understand it, do not charge at the moment. Your letter touched on the inconsistency in the approach to that.

284.

The Chairperson: That clause was agreed last time, so we do not need to agree it again. Is everyone happy with that?

285.

The Committee questioned the use of the term "British Islands" rather than "United Kingdom", which is used elsewhere in the Bill.

286.

Mr Clarke: It seems to be the result of a difference between draftsmen, draftsladies, as in the previous case. This is an amendment to the 1987 Order, in which the term "British Islands" was used. The only reason why "British Islands" is used in this clause - which amends the 1987 Adoption Order - is for the sake of consistency. It would otherwise be inconsistent with the rest of the 1987 Order. "British Islands" is of course defined in this Bill.

287.

Mr McFarland: I refer you to clause 7, which says:

"In Article 3 of the 1987 Order . the United Kingdom the Channel Islands and the Isle of Man".

288.

In clause 8, it says:

"United Kingdom the Channel Islands and the Isle of Man.

289.

Clause 9 of the Bill, which refers to article 13(4)(b) of the 1987 Order says

"United Kingdom, the Channel Islands and the Isle of Man".

290.

Clause 11 of the Bill, which refers to article 2(3A) and (3B)(b) of the 1987 Order says

"United Kingdom, the Channel Islands and the Isle of Man".

291.

Those references are also included at the end of the clause.

292.

Therefore, considering the argument that the Bill should be consistent with the 1987 Order, why should we suddenly change the term to "the British Islands" in the Bill?

293.

Mr Clarke: The way the term is used is consistent. The different provisions that you are referring to relate to different concepts. On the one hand, we are talking about orders made in certain countries, and, in the other case, we are talking about the offence of bringing a child into a designated area, which is referred to as "the British Islands".

294.

Mr McFarland: There are four other articles in the 1987 Order that use the terms "United Kingdom, the Channel Islands and the Isle of Man", and those are referred to in clauses 7, 8, 9 and 11, of the Bill. Another article in the 1987 Order, which uses different terminology, is referred to in clause 12 of the Bill. In clause 13 of the Bill, the term has gone back to "United Kingdom, the Channel Islands and the Isle of Man". I have not gone any further than that to see where else in the Bill such references are made. It seems daft that, in the middle of the Bill, we should have one definition that is at variance with all the other definitions that have been used. We have an opportunity to make the terms consistent, so that there will be no doubt about what "British Isles", "British Islands" does or does not include.

295.

Rev Robert Coulter: Clause 12 of the Bill refers to a new article 58ZA(1) of the 1987 Order and refers to

"A person habitually resident in the British Islands who at any time brings into the United Kingdom for the purpose of adopting a child".

296.

Mr Clarke: We are endeavouring to make it an offence triable in Northern Ireland for a person to bring a child into what is defined as "the British Islands". That is a different matter from the issues of adoption orders made in other jurisdictions. The terminology is being used for a different purpose. The Bill uses the term "the British Islands" with reference to the commission of the offence of bringing a child into the Channel Islands. That offence could be brought to trial in Northern Ireland, if that person moved through the Channel Islands and came to Northern Ireland.

297.

Ms McWilliams: Is the difficulty just about the nomenclature, or is it a legal issue?

298.

Mr Clarke: It is a technical, drafting point and is there to cover the offence.

299.

The Chairperson: So, there is a legal reason.

300.

Mr Clarke: There is the issue of freedom of movement between the Channel Islands and the rest of the UK. I am not an expert, although I have dealt with this issue in previous legislation. For certain purposes, the Channel Islands are being treated as if they were in the UK, although they are not legally or technically part of the UK. That is what this provision addresses.

301.

Mr McFarland: Let us follow the logic in this matter. Clause 12 of the Bill relates to article 58ZA(5) of the 1987 Order, which states that:

" 'the British Islands' means the United Kingdom, the Channel Islands and the Isle of Man".

302.

We are talking about the "United Kingdom, the Channel Islands and the Isle of Man". The four clauses that we talked about earlier contained the phrase "United Kingdom, the Channel Islands and the Isle of Man".

303.

I cannot understand why all the other articles mentioned refer to "the United Kingdom, the Channel Islands and the Isle of Man" but this article refers to "the British Islands" is it a draftsman's foible? Nobody seems to have picked this up, which is a good reason for us to do so now. We should have some consistency through this. Someone living at the far end of the world and struggling with the Intercountry Adoption Act, trying to understand whether he or she can get in through the Isle of Man or not, should have absolutely no doubt about the matter.

304.

The Chairperson: There may be a legal point, designed to get the culprits, or whatever. However, if that is not the case and it is just a lack of consistency in the terminology, it should be examined, otherwise we are going to go round and round again.

305.

Mr Clarke: I am not especially hung up about it. I have been advised that the draftsperson who drew up article 58 of the 1987 Order used the term "British Islands". I have no hesitation in saying that the draftsman with whom I am dealing now would not use that terminology. It is for consistency with article 58, which deals with the removal of children from Northern Ireland. This clause deals with bringing children into Northern Ireland. It is a legal question whether you could use this Bill to make general amendments to the 1987 Order. The purpose of the Bill is to deal with intercountry adoption.

306.

Mr McFarland: Surely, the whole idea was to make amendments to the Order.

307.

Mr Clarke: For the purposes of intercountry adoption.

308.

The Chairperson: Should we leave it alone?

309.

Mr Clarke: I can only advise. I do not know whether it is within the powers of a Bill that is supposed to be about intercountry adoption to make amendments to other aspects of adoption law.

310.

The Chairperson: I would need a week to look into all of that. It is important, and Mr McFarland was right to raise it.

311.

Mr Clarke: We have approached the draftsmen on the issue. Technically the legislation works, but it is a drafting matter.

312.

Rev Robert Coulter: Are the Channel Islands and the Isle of Man part of the United Kingdom?

313.

Mr Clarke: They are not, but, for many purposes they are treated as if they were. The Bill, as drafted, works. It is a drafting point whether we want to spell it out instead of using "British Islands". To make it tidy, we would have to take the "British Islands" references from the Adoption Order 1987 and spell them out. As a layman, I cannot say whether this Bill can cover that.

314.

Mr McFarland: I am not going to die in a ditch about this. I was trying to be helpful to the Department by pointing out that it would be confusing for a layperson, trying to read this, that there are different definitions of a thing in the same document. We had a problem with the last Bill that we dealt with. It was not clear whether person A, B or C was telling C, A or D who was responsible. We asked the Department to clarify it, which they did. In the end, everyone could understand the Bill - even me. It is a drafting problem. It is slightly dangerous to have different definitions for something in two consecutive clauses.

315.

The Chairperson: Did the legal draftsmen say that it had to be that way?

316.

Mr Clarke: That would be putting it a bit strongly. He said that, in the 1987 Order, the preference would have been to use "the United Kingdom, the Channel Islands, and the Isle of Man". Article 68 was couched in different terms. How far do we want to amend other legislation in the interests of consistency? I would be misquoting the draftsman if I were to say that he said that it was legally impossible to do that.

317.

The Chairperson: I suppose that it is a bit late in the day to change that. Should we just leave it as it is?

318.

Ms McWilliams: We should leave it. It has implications for clause 13 of the Bill.

319.

The Chairperson: I thank Mr Clarke, Dr Harrison and Mr Sharp for attending today.

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