Examination of Witnesses (Questions 220 - 235) - Nicholson/Cantwell UK Parliament

Examination of Witnesses (Questions 220 - 235)

THURSDAY 3 MARCH 2005

Mr Nigel Cantwell, Ms Gill Haworth and Ms Naomi Angell

Q220 Chairman: Is there, or could there be, a set of criteria which would find general agreement? In a way you are both saying these are the sorts of things which would make us worry about the country. Is there a set of criteria? Could there be a set of criteria which would lead you to conclude that a particular country was not one in which adoption should be considered outside special cases?

Ms Angell: I think they would have to be reasonably general, because it is a huge range of concerns that have been raised. I would add to that I feel there should be a dialogue with countries where there is concern about their procedures. If there is a failure to respond in a reasonable way to those concerns over a period of time, that would cause concern. Different countries raise very different issues. As an illustration of that, for instance, in Guatemala the concern was on the provenance of relinquished children, that the people giving the children up for adoption may not be the mothers but were saying that they were, and what was put in place there was DNA testing by the British Embassy to provide those sorts of safeguards. In Cambodia children are not relinquished on the whole; it is mainly that they are abandoned, and it is very difficult then. DNA testing would not work, so one is having to look at very different solutions. I think any criteria would have to be broad and general.

Q221 Ann Coffey: Just to explore that a little bit more, if there could be a general agreement about what you might identify as being systemic abuse over a period of time, how would that information come into countries like the UK? Would UNICEF have a role in that?

Mr Cantwell: My feeling is that there is now a wide potential range of credible sources, in respect of possible abuse of systems. Obviously there are organisations such as UNICEF, such as Save the Children, etcetera, who have done or sponsored reports in different countries, and I would say quite often courageous reports, or on problems relating to inter country adoption, but let me come back to my very first example. I actually quite strongly believe that the authorities of the countries concerned—obviously not in all cases, but in many, many cases—are themselves the source of expressed concerns that could be picked up by countries such as the UK or any other receiving country. That is certainly the case in Cambodia where on several occasions the Authorities there have stated very clearly, "We are not in a position to deal with this, we cannot cope ", and yet the situation rolled on. There are local NGOs too: for example, in the case of Cambodia, there is a league for human rights which has done tremendous work on this. Then you have the consultation process that exists within the framework of the Hague Convention, for example, the special commissions. We had one such meeting in 2000, a large part of which was devoted to the case of Guatemala, there is the Committee on the Rights of the Child, the special rapporteurs, within the UN system itself. There is a whole range of sources of information, I think.

Ms Haworth: I would support that. Obviously, in addition, since 1 June 2003 we have been a contracting state to the Hague Convention, so we are in a much better position now to network and have a global view from people who will have had much more experience of inter-country adoption than we have. This is something that we need to flag up. In somewhere like Sweden, they have had really well organised specialist agencies working in inter-country adoption for getting on for 40 years, certainly 35 plus. We are very new arrivers here. I think we need to acknowledge that. There are lot of fellow central authorities whom we could get a lot of assistance from. Certainly the central authorities in Europe, I believe, meet from time to time, so there are possibilities there. There are agencies that meet under an organisation called Eurodopt. Unfortunately, we are not able to be full members of that because we do not have a system that allows us to meet their standards for membership, but it is again another forum that we can actually—

Chairman: What are we missing out on? What do we not have?

Q222 Baroness Howarth of Breckland: What do we not have?

Ms Haworth: We do not have specialist inter-country adoption agencies that have representatives in the overseas countries and that work collaboratively with them, and there are a number of countries that are closed to UK applicants because we do not have that system.

Q223 Chairman: Is that because there has always been ambivalence in Britain about inter country adoption?

Ms Haworth: I think that is one element, but there are other factors too, I think. We have a very strong and strengthening system of services in domestic adoption, and in a way we have been fore-runners there. What we have tried to do, understandably, because it is essential that we do not have a two-tier system for domestic and inter country adoption, we have tried to bring them closer, and that is absolutely right, but from the helpline's point of view we feel we are disadvantaged because we are trying to adapt a very strong domestic system to meet the very special and different needs of an inter-country adoption system, whereas other countries who do not have much of a tradition, if any, of domestic adoption have evolved their systems exclusively and specifically around inter-country adoption, and I think the two do not fit always very well. We do not have any specialist agency that has actually moved into offering a service to support adopters once they are approved and in making the arrangements for the match. They are left on their own to do that, unlike any applicants from any other European country, so far as I know.

Q224 Baroness Howarth of Breckland: Accepting that this is a highly complex area and that we do have these very poorly-matching legal systems across the world, indeed, very much across different kinds of developed countries, what would you like to see in legislation that would make this different? What has been said about this draft Bill is that these provisions are uncontroversial and, therefore, every other witness is saying, "We accept this and we move on." You are the people who really understand what might make it better for children from other countries to be properly adopted and to prevent trafficking at this moment in time. You are key witnesses, and so we need to know from you what it is you would like to see that would make a difference?

Ms Angell: I feel much of the law has been put in place. Up until 1999 we had no legislation dedicated to inter-country adoption. We were having to fit into inter-country adoption very uncomfortably into domestic adoption legislation. Things are far better. We have been unable to join the international community, and there are still problems, and many of them are practical ones. I think the lack of an agency is a huge one if one looks at child protection as well: because I think British families are thrust more onto the less well-organised countries, Cambodia being one of them, because many of the best-organised countries do not want to work with British families. They do not want to work with individuals who are having to reinvent the wheel every time they do an adoption. They want to work with professional agencies who know exactly what they are doing and understand these incredibly complex structures of interfacing immigration law, domestic adoption law and the other legal systems as well, as well as all the practical considerations of doing one of the most important things that you do in your life, which is forming a new family and forming a relationship with your child. Until we have such agencies, I am not confident that the spirit of what we have been attempting to do in legislation will be achieved. There are other practical problems, way outside this Bill, one of which is the difficulty that families are having in getting home study reports, particularly in London at the moment. That is the gateway into being able to adopt from abroad and for it to be able to be fair in relation to other European countries, but I am very conscious that we are going out to some degree—

Q225 Baroness Howarth of Breckland: Going back to the draft Bill, in the absence of an agency that works in the way you have just described, what role would other adoption agencies have in advising the Secretary of State on imposing restrictions on adoption in particular countries? How would that advice reach the Secretary of State?

Ms Angell: When one thinks of adoption agencies, one is thinking of the local authorities or the voluntary adoption agencies, who are actually doing home study reports and, as far as Hague Convention adoptions are concerned, actually being involved in the matching stage of it as well. They will have some information, but I think it will be limited. I do not think there will be a huge amount that they will have which the central authority, the DfES, would not have. However, I think there is a later stage where there should be effective channels of communication which can feed information in, because there is a whole category of families who have to re-adopt in this country. It is the non-designated, non-convention adoptions, where the adoptions are not recognised by this country and they have to re-adopt here. It could also be the convention countries where the adoption has to be completed or done in this country; and then you get a raft of professionals involved—the local authority social workers doing the schedule two reports, the children's guardians and the judges—and they will gain a lot of information about what actually happened in that adoption, and there should be an effective channel of communication that can feed that information back in to the centre. The judges have done it to a degree by the recent decisions where they have been very critical of what has happened in some very notable and high-profile cases, but there should be a more effective channel than that.

Q226 Earl of Dundee: On the development of good practice by receiving countries, you made it very clear that you see as key to all this having specialist agencies, such as the Swedes do. Firstly, which other countries to your knowledge also do. Does Canada ? Then, on Lady Howarth's point of how the Bill can benefit from what you tell us is important, to what extent is there also two-way traffic between legislation and developing good practice before the law comes in? Thus how near are we to better arrangements anyway and can this Bill encourage them further?

Ms Haworth: I think to some degree, in terms of providing the potential for specialist agencies to be created, it is already there in legislation in that there would be provision for those voluntary adoption agencies and presumably the statutory agencies too, but certainly, if I restrict myself to voluntaries who are offering an inter-country adoption service at present, it would be possible for them to apply to be registered to be what is commonly known as a linking agency to actually undertake that particular function. The 2002 Act, when implemented, will make it more possible for other organisations to join in that activity because the thresholds for accreditation and the inspection standards would be lowered in such a way that it would not be such a big leap for new organisations to come in as adoption agencies for that particular purpose, but obviously it comes down to resources. These services are costly to set up, they are unpredictable because countries can change and close their programmes overnight; so if you are starting off with two countries and then there is a moratorium introduced, it is a bit of a challenge for any small NGOs to consider taking that step, although there would be the provision to do that. Some of the difference between ourselves and countries in Europe and Scandinavia, the majority, if not all of whom, have specialist agencies—we are really out on a limb here—is the way in which the cost of inter-country adoption is met in the UK. Obviously there is a cost, but who pays is a big question. In the UK, in order that a service could be provided in the early 1990s, when it was not so common at all before regulations and guidance were introduced, local authorities were not really volunteering to offer to provide home studies, and what was allowed was for fees to be charged to the applicants in order that the local authorities could provide a service that was not going to be a further burden on them, and was not going to detract from their work, key as it is, in domestic adoption. Those fees now have risen to £5,000 for a home study preparation in some agencies; so before people even move off first base they have got a large fee to pay. If you compare with countries overseas that have specialist agencies, other receiving states, they do not charge for home studies, it is seen as a statutory responsibility. They may make a charge for the linking arrangements, but they will not make a charge necessarily (I know hardly any who do) for that statutory provision, whereas the agency, say, in Scandinavia might get a grant from the Justice Ministry or they might get some start-up monies, the ongoing service is paid for by the applicants, but our applicants are already at a disadvantage because they are paying so much for the statutory provision. So there are all sorts of hurdles to overcome if we are going to get to a point of maximising the chance of the range of specialist agencies that we need.

Q227 Baroness Nicholson of Winterbourne: A couple of points of clarification. Mr Cantwell's knowledge is very large, clearly, but he did mention the USA as an example. Would Mr Cantwell not agree, however, that the USA is neither a ratifier of the United Nations Convention on the Rights of the Child, nor of the Hague Convention for Inter-Country Adoption and, of course, does not come under the European Convention on Human Rights and is therefore not pertinent to this debate?

Mr Cantwell: I would agree that the USA is not pertinent to this debate. I used the USA simply as an example of a receiving country, but I would agree, I am certainly not putting it up as a good example.

Q228 Baroness Nicholson of Winterbourne: Since she is not bound by the conventions that all other countries in the globe such as the CRC, other than Somalia, are bound by, and since she could not be bound by that so she continues to pass life sentences on minors, for example, in contravention, is it not a bit of a red herring?

Mr Cantwell: I am sorry. It certainly was not meant to be. It was meant to be purely illustrative.

Q229 Baroness Nicholson of Winterbourne: The second point Article 21(b) of the United Nation's Convention of the Rights of the Child, does it not lay down very clearly the criteria under which inter-country adoption may be considered by a country as a method of child protection? Does it not state clearly that all other methods of caring for that child in its country of origin—and then it lays those out, including fostering, including other forms of care—must have been tried and that if the child cannot in any other way be cared for in its country of origin; only then can inter-country adoption possibly be considered as a method of child protection? Does that not lay down any criteria, and is there any valid reason for departing from those criteria for the United Kingdom?

Mr Cantwell: It lays down, let us say, the criteria of process, almost by elimination, of attempts to find alternative care for the child, and, indeed, under the preceding Article, the attempt must be made to return the child to the family. This is, I think, a key point—I hope it is not a red herring—In terms of inter-country adoption problems, in a large number of cases, and sometimes the majority, we are not looking at children who are being adopted from institutions, we are looking at children who are being adopted from families.This is, in my view, one of the major indicators that something is going wrong when you suddenly discover in a given country—which, as Baroness Nicholson knows was the case in Romania, it was also the case in Albania early in the 1990s which they seem to have resolved. Once that balance starts to change, then this is an extraordinarily dangerous indication that something is going wrong, very wrong, with the system. To come back to your specific question, yes, the convention sets out the criterion for process, but it does not resolve the issue of whether children should in specific cases be retained in the country in a non-family situation—and this is not resolved in the Hague Convention either—as opposed to being offered the possibility of going abroad. This leads me to another, I think, fundamental issue. Talking of "public policy", maybe it would be good to try to introduce it into public policy: perhaps we can get away from this idea that the receiving countries are those expressing the demand for children and the countries of origin are supplying those children, and rather try to turn it round to ensure that the countries of origin, when they feel it necessary for given children in their country, can make application to potential receiving countries so that, if it exists, if the demand is there, the receiving countries are those that would then supply a response to that demand.

Q230 Baroness Nicholson of Winterbourne: Mr Cantwell, thank you for that excellent clarification of your earlier point, but what you are indicating is that the criteria for domestic adoption in the UK are widely different from the criteria that the United Kingdom and other countries use when receiving foreign children. In other words, you have indicated, for example, that a stay in an institution is unacceptable and that a family setting in a foreign country is preferable to that, despite the contrary indicative points in culture, in language, all the things we know about, which are in the United Nations Convention on the Rights of the Child to which the United Kingdom is bound and which in 1998 the European Union Council of Ministers declared was an integral part of the implementation of the Treaty of Rome. Therefore, we are bound by this completely. Given this great variation in terms of criteria, and given that we are looking to legislation, what do you feel this law should contain, if anything, which would enable the United Kingdom to deal fairly, as fairly with non-national children and their families as it deals with national children and their families? A simple clear example is parental links. As you correctly say, the bulk of the children being brought into richer countries do not now any longer come from institutions. Indeed, very few of them are orphans, three per cent of them, Romania, for example, and here we have 35,000 institutionalised children, and other countries, including Member States, have considerably more. Therefore, institution is a method of child protection under the UNCRC. What should we do in this legislation to bring a greater measure of fairness in terms of those children's rights and their parents' rights, given the very high purchasing power already indicated by Mrs Haworth that is being used at the moment? What could we do in this piece of legislation to protect the foreign children, their families' rights better than is happening at the moment?

Q231 Chairman: I am going to ask you to answer that briefly, I am afraid. I will give you an opportunity of coming back to the Committee in writing at a later stage, but we are very, very tight on time now, so if you could give as brief an answer as you can.

Mr Cantwell: I will be extremely brief. I have to profess ignorance on the precise content of UK law on this issue, partly because I do not live here any more, but also I am not quite certain, at least in its current outline, or content, if you wish, how one might introduce this idea into this piece of legislation.

Q232 Baroness Nicholson of Winterbourne: Two points. One we have had pointed out to us that the Family Law Bar Association said that clause 8(3) of the draft Bill makes it a criminal offence to bring a child into the UK in breach of a condition imposed by that clause, but there is no similar expressed criminal sanction under clause 7 for bringing a child into the UK under a blanket ban for restricted traffic?

Q233 Chairman: Naomi Angell, you are a legal officer, I believe, and it is clause 7 and 8?

Ms Angell: I agree with that.

Q234 Chairman: This is the issue of criminal sanctions?

Ms Angell: It does seem it is a gap.

Q235 Chairman: It should be in there, you think?

Ms Angell: If it is going to be for the special conditions an offence, then it has to make sense that it is going to be for the restrictions.

Ms Haworth: Can I say in addition, in our written evidence we have pointed out some of the problems that have arisen with the implementation of the 2002 Act and the 1999 Act and some of those problems are ensuring that there are still loopholes that people can get round the restrictions, and I think that is something that really does need to be seriously addressed. I would like to say, just for the record, that the actual picture of children coming in from overseas countries from families and not being from institutions and it not being state of origin led is a picture of inter country adoption that currently I do not recognise. Children come into the UK because they do not have the possibility of family life in other countries; maybe for young children there might be, older children not, but the picture that Baroness Nicholson or Nigel Cantwell painted is not one that I can actually agree with.

Chairman: That is helpful. I am going to have to ask you to leave it there, I am afraid, but in thanking you very much can I say this. Though this is a narrow area of the Bill, we have indicated that we almost need a whole new draft bill on adoption. What I would ask you to do when you go away is to look at the Bill and see if there are specific things around it that you think ought to be in there that you want to draw our attention to, or anything that did not come up this morning that should have done, obviously tell us that too. I f there is anything that in your view should be in the Bill around this fairly narrow area, please write in to us. Can I thank you all very much for your attendance.