RESTRICTIONS ON REMOVAL OF CHILD PENDING ADOPTION (Hansard, 28 October 1975)

§ Mr. Andrew F. Bennett
I beg to move Amendment No. 161, in page 19, line 31, at end insert— '(4) Any application by a parent or guardian under subsection (2) of this section to remove the child must be heard within 28 days of the application being made. ' In Committee, considerable concern was expressed about the problem of frivolous or misguided applications for adoption. The Minister agreed to re-examine the matter and this amendment is designed to see whether there can be some safeguard for the parents. My particular concern is that the courts are the last resort. While one accepts that the courts should be able to make the final decision, if we are to have good case work done it is far more important that cases are kept out of the courts as far as possible. But if they go into the courts, it is essential that they should be decided quickly so that anxiety and uncertainty are not prolonged.
I hope that my hon. Friend will either meet the point now or will at least agree to monitor the legislation in practice with a view to legislating again at an early date, if necessary.

§ Dr. Owen
I am certainly prepared to monitor the working of the Bill and, if necessary, make changes. I believe that at the moment there are good reasons for resisting the amendment. However, I have consulted the Home Office and the Lord Chancellor's Office, and it is considered that a time limit for application to remove a child is unnecessary. In the county court, an application is heard at not less than one clear day's notice to all the parties, and in the magistrates' court not even one day's notice is required in any event. Matters affecting children can be given high priority in the courts and when parties are quick to inform the court that an application is urgent, it can be disposed of speedily.
On frivolous or misguided applications, subject to consultations the Adoption 1465 Agency Regulations, which apply to local authorities and approved societies, will specify that applications under Clause 14(2) should be made at not less than assistant director level for local authority applications and a similar level for approved adoption societies. The directors' association welcomes this provision and will be giving guidance to its members. I think that this reply will meet the point put by my hon. Friend.

§ Mr. Andrew F. Bennett
I beg to ask leave to withdraw the amendment.

§ Mr. Andrew F. Bennett
I beg to move Amendment No. 163, in page 20, line 17, leave out from 'is' to end of line 21 and insert 'may, if appropriate, remove the child from the actual custody of the applicant or of the prospective adopter in pursuance of its general duty to promote the welfare of the child under section 12 of the Children Act 1948, notwithstanding the provisions of subsection (1) or (2) of this section. ' This causes me far more concern than Amendment No. 161. We are considering a matter in which this legislation upsets existing practice. It has been accepted over the years that one should take the advice of the social worker who was supervising a particular case.
If this legislation goes through in its present form, without amendment, it will be possible for the foster parent to take a unilateral decision which may not be in the best interests of the child. This may eventually be decided in the courts, but it is important that we retain the authority of the social worker. The amendment is designed to do that and to ensure that if a course is in the best interests of the child the social worker can pursue it, and that the scheme cannot be upset by the unilateral action of the foster parent.
The problem arises where one has a child placed in a very satisfactory foster home for nearly five years and it is clear that the intention of the local authority, the social worker and the natural parents is that the child will be returned at some time to the natural parents. Just before the five-year point arrives, if a social worker feels that a foster parent is particularly possessive and may want to take 1466 advantage of the five-year period, the social worker has to face a difficult choice of taking the child back to the natural parents at that point, which may not be the appropriate point, or to move the child to a different foster home. A great deal was made of this in Committee and many felt that the provision in the Bill was unsatisfactory. We want to be careful not to erode the authority of the social worker and give too much authority to the foster parent, who may not be the best person to exercise it.

§ Dr. Owen
This point was discussed in Committee. These amendments are designed to give local authorities the power of veto over adoption or custodianship applications by foster parents regarding children in care.
The British Association of Social Workers proposed these amendments because of its objections to allowing foster parents unilateral rights over a child in care, especially when those powers are triggered by a child remaining in a foster home for a particular period of time". The Committee discussed this, and since then I have consulted the Home Office and the Scottish Office and I am satisfied that the provisions in Clauses 28 and 39 do not prevent a local authority from removing a child who is at risk, by means of emergency procedure for obtaining a warrant or authorisation allowing the child to be removed to a place of safety.
The advantages and disadvantages of allowing foster parents to apply for adoption or custodianship without the consent of the local authority in whose care the child is were fully discussed and the Committee accepted the Government's arguments in favour of the time limits and decided not to accept an amendment moved by my hon. Friend the Member for Stockport, North (Mr. Andrew F. Bennett).
Safeguards built into the legislation protecting local authorities' perfectly legitimate interests are real and sufficient. We have to take a balance of view in this matter, and I say to my hon. Friend, who has made his views clear throughout, that we should see how the legislation goes. I hope that his fears will not be fulfilled.

§ Mr. McElhone
I beg to move Amendment No. 29, in page 21, line 4, at end insert— '(8) In relation to Scotland, subsection (3) of this section does not apply where the removal of the child is authorised, in terms of Part III of the Social Work (Scotland) Act 1968, by a justice of the peace or a children's hearing'. The purpose of this amendment is to provide a Scottish application for provisions which were included for Great Britain in Clause 28 by the Standing Committee. The provisions, which appear now as Clause 28(3), limit the circumstances in which a child can be removed by a local authority from the possession of a person with whom the child has had his home for over five years, and who has applied, or given notice of an application, to adopt the child. Clause 28(3) already provides that a local authority shall not be able to remove a child who is in the care of that authority except with the leave of a court.
It is necessary in Scottish terms for any provision governing the removal of a child to have regard to the provisions of Part III of the Social Work (Scotland) Act 1968 governing place of safety orders made on the authority of a court, justice of the peace or children's hearing. This is done by Amendment No. 29, which provides that the restriction on removal imposed by Clause 28(3) shall not apply where removal of the child is authorised either by a justice of the peace, in the case of the emergency procedure provided under Section 37(2) of the Act, as now amended by Clause 67, or by a children's hearing, under Section 37(4) or Section 40(7) of the Act after the child has been brought before a hearing.
The power of the sheriff under Section 37(2) is preserved by the reference in Clause 28(3) to removal with the leave of a court".