INDEPENDENT REVIEW OF DETERMINATIONS

HC Deb 20 March 2002 vol 382 cc399-404

Mr. Brazier

I beg to move amendment No. 22, in page 9, line 31, leave out subsection (1) and insert '(1) Regulations under section 9 may establish a procedure under which any person in respect of whom a determination has been made by an adoption agency ma) apply to an organisation or panel, independent of any local authority or voluntary adoption agency but approved by the appropriate Minister for a review of that determination.'.

Mr. Deputy Speaker

With this it will be convenient to discuss amendment No. 23, in clause 14, page 10, line 40, leave out subsection (1) and insert— '(1) If as a result of an independent review any local authority is found to have failed, without reasonable cause, to comply with any of the duties imposed on them virtue of this Act, the appropriate Minister may make an order declaring that authority to be in default in respect of that duty.'.

Mr. Brazier

As the clause stands, most of the important detail is left to regulations. For those of us who have been pressing for many years for an independent appeals process for adoption-related matters, the clause is welcome. None the less, it is disappointing that the Minister said in Committee on 18 December at column 676 that regulations are likely to focus on only two matters—at least initially. They are, first, prospective adopters' suitability for the new national list, and secondly, the provision of information by adoption agencies.

Mr. Djanogly

The Minister may wish to clarify this, but I think that, following the Government's changes on access to information, the regulations will now focus on only one area.

Mr. Brazier

My understanding is that the review process will still focus on the two matters. Crucially, that does not seem to apply to other parts of the adoption process. In particular, it is not likely to apply to decisions on individual matchings. That is a come-down from the Secretary of State's apparent pledge on Second Reading, when he said: It is right that we build in independent review throughout the system"— his words— whether of the provision of information to adopted children about their birth families, or of decisions to place a child with a particular family"— the Secretary of State's very words— They are difficult issues."—[Official Report, 29 October 2001; Vol. 373, c. 659.] Explaining the need to limit the review process, the Minister in Committee stressed issues of resourcing. She claimed that the review process inevitably draws on the same over-tapped pool of professionals and social workers, who are in short supply and must come off their current tasks to review past ones. That is a weak argument. There is a strong case for lay involvement in the review process. None the less, there is a large range of other circumstances in which things can go badly wrong in the adoption process, and there is no redress for prospective adopters, other interested parties or the child.

Given the short time available, I shall not restate points made in Committee about how expensive judicial review is or the fact that the ombudsman is powerless and that there is little point in appealing to the local authority.

Our amendment No. 22 seeks, first, to extend the scope of reviews from qualifying determinations to all determinations. That does not automatically make all determinations subject to review. It merely allows the Secretary of State to set out such wider categories as he sees fit. Secondly, the amendment seeks to set up an independent framework for the hearing of such appeals. Amendment No. 23 is largely consequential. Under amendment No. 22, the Minister will be able to allow an independent appeal process across the entire range of activities, so it seems reasonable to limit the Minister's powers to the outcome of such appeals.

Mr. Dawson

By moving the amendments, is not the hon. Gentleman in danger of putting the interests of adults before those of children? Does he not run the risk that placement decisions and the efficient and proper implementation of placements will be subject to the activities of vexatious litigants?

Mr. Brazier

In Committee the hon. Gentleman discussed the matter at length. To summarise my argument, there are all sorts of ways of putting filters into the process. Perhaps the best answer to his intervention is to go straight on to some examples.

The current appeals procedure would not cover approved adopters who are denied a match with the child whom they wish to adopt, even if there is no other applicant for the child and has not been one for a long period. Surely there could be no clearer example of the vital interests of the child. As another example, if a care plan is not being heeded or a bad decision has been made, how will the child or the child's representative—perhaps a foster carer or an independent visitor—get justice?

Further examples include a child being moved on unwillingly to yet another set of foster carers, foster carers being refused permission to adopt a child whom they have fostered for years—the hon. Member for Lancaster and Wyre (Mr. Dawson) will know that the Government-commissioned research produced in Cardiff two years ago showed that some local authorities never allowed foster parents to adopt—and approved couples who are again and again refused matchings. I could go on. I shall give two other examples, before returning to a more detailed case. What will happen when information has been retained on a child's background? All those who served on the Committee heard strong testimony about the importance of getting that information released. There is currently no recourse if the local authority refuses to give the parents information about the child's history, which is so vital if the child has been abused. Above all, what recourse will there be for whistleblowers in the social services system? Such people are brave professionals who often write off their entire careers by putting principle before their own interest for the sake of children.

It might be helpful if I describe in detail an actual example at the end of that list of hypotheticals. Mr. and Mrs. J, who live in central London, would have liked to appeal on several grounds. No avenue of appeal was available to them, and the Bill, as currently worded, would not provide one. They said to the Adoption Forum: We live in a very mixed area, racially speaking. Our circle of friends and acquaintances is also mixed. We adopted a 7-year-old white English boy from our local authority in 1996 and, with the usual ups and downs, it is a stable and happy relationship for my husband, me and our boy. In 1999 we applied to adopt his mixed-race … half-sister, then 13. We had grown very fond of her after regular contact ordered by our local authority and she had been moved several times in foster care and expressed a desire with live with us. Our local authority refused the placement on the grounds that she was of mixed race and we were not. We did our utmost to try to persuade them but nothing was achieved. We still abide by the contact order. The girl is still in foster care (she has been in several placements) which we all value. But we believe the girl, our relationship with the girl and, inevitably, with our son, too, have been ill-served by the decision not to allow the placement". Surely such a case is worth a review? However, as the clause is worded, without amendment No. 22, it would not get one—unless the Minister's thinking changes.

The clause also establishes an appeal structure. There is a concern that, under the clause as currently worded, the appeal might not be truly independent. For example, it might be considered by people from the local authority involved, and the adoption agency might be made to pay for it. In the case of voluntary agencies, that could be disastrous and would be a burden on local authorities, too.

The Government have a mass of tribunals stretching across many different Departments, covering everything from employment to parking fines. Surely our most vulnerable children—those in the care system whom we in Parliament have failed in all too many cases—are worth an independent appeal heard by a properly constituted independent panel.

Mr. Djanogly

I rise to support amendments Nos. 22 and 23, which relate to the new procedures to be put in place for what the Bill refers to as an "independent review of determinations". As it turns out, that title is rather ambitious. Two issues seem to be involved in reviewing what counts as a qualifying determination, as my hon. Friend the Member for Canterbury (Mr. Brazier) suggested.

My hon. Friend also mentioned that on Second Reading the Secretary of State said: It is right that we build in independent review throughout the system".—[Official Report, 29 October 2001; Vol. 373, c. 659.] I draw attention to the word "throughout". That does not describe what has happened, as things have turned out.

We know little about the purpose of the proposed review panels. We do not know who will sit on them, how and when they will be convened, what their procedures will be, or the time limits for convening them. Indeed, in Committee, the Government did not even know when the system would be introduced.

We need to consider why review panels are important. Gradually over the past 30 years, people have lost confidence in the adoption system. Many potential adopters feel that they have received unfair treatment at the hands of agencies and social workers, that their wishes have been sidelined, that delays in the system are unacceptable, or that a decision made in the adoption process was wrong. Currently, complaints go through councils, where one can go through three stages of complaint procedure. Of course, one is taking one's complaint to the very same council that one has the complaint against, which is hardly an independent process. Alternatively, in some cases, one may be able to go to judicial review, but that is a very expensive process, open only to a very few.

9.45 pm

The main thrust behind the Bill is to emphasise the importance of the child who, under clause 1, is to receive paramount status. That being the case, it becomes more important that other parties to the adoption process should receive an independent right to redress. I would certainly accept that a properly convened, easy-access, low-cost and informal panel system would work well. That would allow for any person, including natural parents and adoptive parents, to apply in relation to any adoption agency determination. That is proposed by the amendment, and I fully support it.

It is important to appreciate that, as things stand, even if the panels are formed, they will be available only to one party—the prospective adoptive parents—and then only in relation to their being refused permission to adopt, and then only to those who make it to the formal stage of the adoption process. However, only 10 per cent. of those who apply get to the formal stage of the adoption process in the first place, which means that the measure would apply to 4 per cent. of prospective adoptive parents.

This is being called an independent review system but I would hardly call it a full and comprehensive system. It is turning out to be little more than a sham. It does nothing to demand a review of a child who is moved between foster carers, or to allow for a review of the suitability of a child for adoption with particular prospective parents. It gives no recourse to a review of delays in the process, or to the giving of parental consent to adoption, or to assessing whether the child's views have been taken into account in the process. There is no provision for a review of the parents' assessment for support—if they are to get any at all—or issues relating to the content of or access to the three adoption registers; or, indeed, inter-country adoptions.

For all those reasons, I support the amendments.

Jacqui Smith

Hon. Members have expressed concerns about various different stages of the adoption process, and their conclusion has been that the independent review process should be extended to all those stages. I hope to demonstrate not that I do not believe that those are justifiable concerns, but that, given the other structures that are in place, I do not believe that an extension of the independent review process would be the most appropriate way of dealing with those concerns.

As the White Paper made clear, the intended purpose of the independent review mechanism is to build confidence in the adopter assessment process, to address concerns that there was bias or that a decision was not soundly based and—to reassure the hon. Member for Canterbury (Mr. Brazier)—to provide a means for an independent review of some of the decisions made on the access to information provisions introduced by the Government. I reassure him that that remains a purpose of the independent review. It was never intended, as appears to be the intention behind the amendments, as a means of micro-managing the day-to-day business of adoption agencies.

The hon. Gentleman referred to foster carers who, for four years, have been blocked from adopting. Under clause 41(4), they can apply, regardless of the local authority's views, if they have had care of the child for one year. Adoption standard B5 emphasises that assessment for foster carers should be speedier; four months, rather than eight.

The hon. Gentleman again raised his concern about the use of the independent review mechanism with regard to adoption agency determinations about matches between children and approved adopters. I undertook to consider whether, as we consulted on the use of the independent review mechanism, that might be an appropriate determination to be considered. The consultation is due to take place in the autumn. We have also undertaken initially to implement the independent review mechanism in 2003 and, as I said, to consult on the extension that he referred to in Committee.

I hope that I can reassure hon. Members by outlining some of the regulatory and quality assurance mechanisms. Some are enshrined in the Bill and many involve independent scrutiny, which I hope will overcome some of the concerns that have been mentioned.

As a starting point, the Bill places every agency under a statutory obligation to make the child's welfare the paramount consideration in any decision relating to the adoption of a child. All adoption agencies will be regulated by the independent National Care Standards Commission. Voluntary agencies will have to be registered to perform their functions legally. The NCSC will set national minimum standards for all agencies covering the facilities, staff, qualifications, skills and procedures that should be in place for the organisation properly to perform the functions of an adoption agency. All voluntary adoption agencies and local authorities will be subject to regular independent inspection by the commission against those standards.

Aside from the overall regulatory structure, as we touched on earlier, local authorities have to set up complaints procedures under the Children Act 1989 in respect of children and the Local Authority Social Services Act 1970 in respect of adults. Both procedures require an independent person to be appointed to supervise the conduct of the complaints process, which we are reforming and improving.

In relation to the hon. Gentleman's concerns about young people—

It being Two hours after the commencement of proceedings, MR. SPEAKER, pursuant to Orders [29 October, 23 January and this day] put the Question already proposed from the Chair.

Amendment negatived.

Mr. Speaker then put the remaining Questions necessary for the disposal of the business to be concluded at that hour.