HC Deb 20 May 2002 vol 386 cc35-43

Proceedings for an offence by virtue of section 9, 57, 90, 91, 92 or 119—

  1. (a) may not be brought more than six years after the commission of the offence but, subject to that,
  2. (b) may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.
In relation to Scotland, "the prosecutor" is to be read as "the procurator fiscal".'.—[Jacqui Smith.]

Brought up, and read the First time.

Jacqui Smith

I beg to move, That the clause be read a Second time.

Mr. Speaker

With this it will be convenient to discuss the following: Government amendments Nos. 30, 31, 233, 62, 63, 32, 144 and 145.

Amendment No. 130, in clause 128, page 72, line 13, leave out from "that" to end of line 14 and insert— the person may attend and be heard.'.

Government amendment No. 226.

Amendment No. 131, in page 72, line 32, leave out from "and" to "at" in line 33 and insert— who has not given notice under subsection (4) of that section.'.

Government amendments Nos. 235 to 237.

Jacqui Smith

The amendments deal with offences and proceedings relating to adoption, and new clause 14 has its roots in the scrutiny by the Special Standing Committee. Clause 95(2)(a) sets a three-year time limit for bringing proceedings for all offences under the Bill. The net effect of that is to extend the time limit for summary only offences from the standard six months to three years, and to place a three-year time limit on the either-way offences, which are not normally time limited.

Members of the Special Standing Committee will recall that concerns were expressed about the three-year time limit. Offenders could escape prosecution, it was suggested, if the offence came to the attention of the authorities more than three years after it was committed. Under the operation of the current three-year inspection cycle, inspectors could discover too late that an offence had been committed immediately after their last inspection. Members of the Committee also suggested that unlawful activities might not come to light until several years after the offences were committed.

As we undertook to do, we have examined those concerns and we agree that issues need to he addressed by amendment. We considered when each offence would be likely to come to the attention of the authorities. In that context, we concluded that the Bill deals with three groups of offences, each of which we intend to provide for differently.

The first group comprises offences under clauses 81 and 83, relating to issues involving inter-country adoption, which we have just discussed. Each contains an either-way offence triable before a magistrates court or a Crown court, which provides for a higher penalty than the Bill's summary only offences. As there would have to be exceptional reasons for placing a time limit on an either-way offence, we shall remove the current time limit on the two either-way offences.

In the second group, all the other offences are summary only and may be tried only in a magistrates court. We are removing the time limit from most of those—in a moment I shall explain which summary offences will be treated differently—as we would expect the adoption agency or prosecuting authority to receive information or notice soon after the offence was committed.

Such offences are linked to activities in which the agency is involved, and it should soon learn of an offence or expect to be informed by others involved—for example, where the court orders the prospective adopters to return the child to the agency or the birth parents remove the child from the prospective adopters without the leave of the court. Therefore, we shall remove the three-year time limit, allowing the standard six-month time limit for most summary only offences to apply automatically.

To reiterate, those are offences that we would expect to be discovered within that six-month time limit. However, as members of the Committee pointed out, some may go unnoticed by the adoption agency or other authorities where an agency is not involved in making arrangements for an adoption. In the bipartisan spirit in which we are considering the legislation, although that will not happen often, I have to say that it was the hon. Member for East Worthing and Shoreham (Tim Loughton) who raised the issue in Committee. Moreover, the agency may itself commit an offence soon after an inspection visit, and that may not be discovered until three years later when the next visit takes place.

We considered extending the time limit to four years to provide for the three-year inspection cycle, but we were concerned that cases in which, for example, arrangements are made for the private adoption of a baby or an infant, or even of an unborn child, might be missed. The offence could be concealed, perhaps until the child needed to enter primary school. The new clause therefore sets a new time limit of six years for bringing proceedings for offences under clauses 9, 57, 90, 91, 92, and 119.

We think that that will provide sufficient scope to bring prosecutions against those who arrange private adoptions. The prosecuting authorities will be able to decide that if no harm has come to the child, it is not in the public interest to prosecute the parents. However, the longer time limit provides sufficient scope for the authorities to bring prosecutions against those who arranged or facilitated that private adoption. That is why we decided to set a time of six years.

The new clause extends to Scotland as well as to England and Wales, as it imposes a time limit in respect of clause 119 that extends to Scotland.

Government amendments Nos. 30, 31 and 32 relate to my earlier arguments about the series of amendments that change the legal burden in the defence provisions to an evidential burden to comply with recent court judgments on that point. I know that hon. Members were listening carefully when I outlined the reasons for that. To counterbalance the change in the burden of evidence, the amendments also amend the formulation used in the clause—that someone neither knew nor had reasonable cause to believe"— to the question of whether they knew or had reason to suspect", which provides a higher test.

Government amendments Nos. 144 and 145 will ensure that only an evidential burden is placed on the defendant, and that clause 115(3) is compatible with article 6 of the European convention on human rights. They also align the clauses with the defences for electronic distribution of advertisements in the Tobacco Advertising and Promotion Bill.

I now turn to Government amendments Nos. 62 and 63. When clause 97, which was then clause 96, was considered in Committee on 4 December, we—I am using the royal we, because I was not present on that day—agreed to consider the drafting of the clause. The Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Doncaster, Central (Ms Winterton), set out the following areas for examination: first, whether there should be an automatic bar on the identification of children in the county court and the High Court to match that already in place in the magistrates court; secondly, whether county courts should have the ability to revert to open court in individual cases; and thirdly, whether to tighten the wording of the clause to ensure the anonymity of those involved in adoption proceedings.

Amendment No. 62 deals with the second of those points. The Government have considered whether county courts should have the ability to sit in open court in individual cases, and we believe that it is important that the family courts have sufficient flexibility to carry out their duties without unnecessary bureaucracy and without causing unnecessary delay. It would be undesirable for a case that is being dealt with at an otherwise suitable court centre to be transferred to the High Court solely to allow judgment that does not even identify the child concerned to be given in public. Amendment No. 62 gives county court judges the discretion to hear adoption proceedings in public when they consider it appropriate to do so—for example, where it is in the child's best interests or in the public interest.

Through amendment No. 62 we are modernising and clarifying the language used in the Bill by substituting for the phrases "in chambers" and "in camera" the phrase "in private". That clarifies the policy intention by ensuring that only those concerned with the case are present and that the public are not admitted. Recent case law has again stressed that "in chambers" is not the same as "in private", so non-parties could seek to enter a hearing in chambers. The amendment updates the clause with the more modern terminology of heard and determined in private", which provides consistency with the language used in the rest of the statute book.

On the first point raised in Committee, the Government have considered the issue of the identification of children involved in adoption proceedings, and we believe that there should be an automatic bar on the identification of children in the county court and the High Court to match that already in place in the magistrates court. Amendment No. 63 therefore inserts in the Children Act 1989 a reference to the Bill, to align the protection of children under that Act and the Bill.

That will ensure that children are protected at all levels of courts by making it an offence to publish any material that is intended to identify, or likely to identify, first, any child as being involved in any proceedings before the courts in which any power under the Bill may be exercised by the court with respect to that or to any other child or, secondly, an address or school as being that of a child involved in any such proceedings.

I believe that the amendments have fulfilled the commitment that my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department made in Committee to consider the points that arose, and I hope that in the light of that explanation, hon. Members will support the new clause.

4.30 pm
Tim Loughton (East Worthing and Shoreham)

I acknowledge the Minister's characteristic graciousness in alluding to the useful debate in Committee. Practical and useful points were made there, and in the interests of bipartisanship, I must acknowledge that the Government have generally taken them on board. However, I fear that that will make for a boring debate this afternoon, as is witnessed by the lack of hon. Members in the Chamber.

I broadly welcome the amendments. I am especially pleased about new clause 14 and the consequential amendments that change the basis of the six-month and three-year restrictions that currently apply. We had a good debate in Committee about offences that are often undetected for a long time and hidden by those who are clever at getting around the law. There are shortcomings in part of the inspection system, but the work of the National Care Standards Commission will improve matters in future. Some agencies are inspected on a three-year cycle and the prosecution period is limited to three years, whereas it may take a long time after inspections for some matters to come out of the woodwork. The measure is therefore wholly sensible, and we welcome it.

We welcome the application of the new clause to the more serious case of private adoptions. Like private fostering, those are an unknown quantity. We know that some cases have sprung from lack of proper checks, which is understandable because the private adoptions and fostering have not been officially recognised.

Government amendments Nos. 30, 31 and 32 deal with the change to the evidential basis for the burden of proof, which echoes recent arguments in Committee on the Tobacco Advertising and Promotion Bill. The Minister has not had the pleasure of being party to those debates, but I have, as I try to juggle those responsibilities with my others in connection with this Bill.

The amendments are consistent with those that we considered to the Tobacco Advertising and Promotion Bill. However, it always pains me when I read phrases such as:

only applies if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned". I fear that plain English has not prevailed.

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton)

I did not say that.

Tim Loughton

The Minister says that she did not say that, but that is the wording of her amendment. I fully realise that it is legalistic jargon, but such terrible English pains me, and it seems to be used all the time nowadays.

Amendments Nos. 62 and 63 refer to the change to proceedings in court. Amendment No. 63 refers to the Administration of Justice Act 1960. The Minister responded positively to sensible points that were made in Committee to ensure the anonymity of vulnerable children in sensitive circumstances. I shall not shed tears for the dismissal of the terms "in camera" and "in chambers". It may sadden lawyers, but it is good news for laymen and supporters of plain English.

The Minister might have said more about amendments Nos. 235 to 237, which single out the treatment of corporate bodies and partnerships. I may have missed her comments but I do not think that she referred to those amendments. The hon. Member for Lancaster and Wyre (Mr. Dawson) may want to speak about his amendments, with which we have some sympathy.

We believe that the Minister listened to the discussions in Committee, and the amendments are broadly sensible, so we welcome them.

Mr. Hilton Dawson (Lancaster and Wyre)

Two of the amendments in this group—Nos. 130 and 131—are in my name. I will not press amendment No. 131, which has been largely accepted by the Government: Government amendment No. 226 is very similar to it, so I will not waste anyone's time quibbling. That amendment relates to amendment No. 111, which we discussed on Thursday. It was the shining example among my 30-plus amendments: the Government accepted it completely. With that little triumph achieved, we will quickly pass on and feel that we are working on the same lines.

I hope that we can also be on the same lines over amendment No. 130 which is similarly about the participation of parents and of anyone who has an involvement in these issues; perhaps it is particularly about the participation of parents, though. The Bill basically says that someone who has given consent for a placement or for adoption need not be required to attend court unless the court insists on it. The amendment says that the person, whether at placement order stage, at the stage of variation of such an order, or at adoption order stage, has a right to attend and be heard.

This is a matter of fundamental human rights. It is about the proper participation of parents in perhaps the most fundamental decisions that any parent can make about the future of their child, and perhaps the most fundamental decisions that any court can make about the future of children. It is not an amendment tabled by some idiosyncratic Labour Back Bencher. It is supported by a vast range of children's organisations. I think that almost every children's organisation that has been involved in making representations on the Bill supports it.

The amendment relates to the concerns that many of us have—unfortunately, we did not have time to air those concerns on Thursday; I hope that we will get the chance later today to refer to them—about the nature of consent under the Bill. The Children Act 1989 is to be changed fundamentally. Parental responsibility could be transferred to other authorities—to the local authority, to the agency, to the adoptive parent—without going through court. Fundamental decisions could be taken at the consent stage, without taking every case to court for a placement order. Huge decisions about children's lives could be taken under the scrutiny of the Children and Family Court Advisory and Support Service—we will return to that point later—without involving the courts. In fact, without returning to court, decisions could be taken that militate against previous court decisions concerning Children Act section 8 orders, residence, or contact.

In essence, the amendment would enable parents to "attend and be heard" at crucial court proceedings at the stage of placement, of possible revocation of placement, and certainly of adoption hearings. The argument might be advanced that, if accepted, the amendment would introduce another stage, through which those who have perhaps not attended to their children's best interests could disrupt, delay and prevaricate over the best efforts of all concerned to meet the interests of vulnerable children. However, I have greater faith than that in the court process and in those who work with children.

I hope that it will be accepted that parents have a right to attend and be heard at these crucial stages, and to participate not just in discussions about whether adoption will proceed, but about crucial issues such as contact with extended family and siblings. It is a matter of human rights and—most importantly—of the best interests of children, so I hope that the amendment will be supported.

Sandra Gidley

I, too, welcome Government new clause 14, and echo the frustration expressed about our proceedings in Committee. Certain hon. Members were delighted when any of their amendments were accepted, and felt that the Government were ignoring them. I am pleased to say that that is no longer the case, as most of our concerns have been addressed through this group of amendments, which will probably improve the process.

I greatly sympathise with amendment No. 130, which was tabled by the hon. Member for Lancaster and Wyre (Mr. Dawson). A change in emphasis whereby parents would have the right to be present at a hearing is a sound one. Although we can find our way around the system with ease because we do so every day, not everybody feels that way. We tend to forget how difficult it is for others to realise that they have to do certain things at a certain time—such as applying to be present at a hearing—particularly if they are going through a traumatic and stressful time. Anything that would help such people to be part of the process is very welcome.

Through our constituency surgery cases, we have all discovered how easy it is to be wise after the event and establish what should have been done. However, if parents can be involved at every stage, such situations might decrease. In certain cases, social services could decide that the parents are not doing a very good job and put the child up for adoption themselves. In such cases in particular—I am thinking of one fairly close to home—parents often feel victimised by the system and by social services, and excluded from the whole process.

4.45 pm

I do not want to go into the rights or wrongs of individual cases, but I contend that it is fairer to encourage the parents to be there. It is also fairer for social services departments if the parents are involved. The parents may not like what happens, but they will be able to witness the process and, probably, take part in it in some way.

Many of the adoption agencies have raised concerns about the human rights aspects. I hope that the Minister will explain how the Bill fits in with the human rights legislation, especially relating to the rights to a fair trial and to a family life.

Jacqui Smith

My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) is right to say that we are in accord on amendments Nos. 226 and 111—the latter was debated last week—and on his amendment No. 131. He should not be so modest about the impact that he has had on the course of the legislation.

The Government acknowledge the importance of ensuring that the views of parties to proceedings are appropriately put before the court. The way in which views of the parties—for example, the birth parents of the child—are put before the court will vary in different circumstances and in different types of proceedings. The requirements in the Bill to notify parents and guardians of adoption hearings represent minimum requirements to be set out in court rules. We have already said in Committee that the full detail on representation and party status in proceedings will be set out in secondary legislation such as court rules. We can do that by virtue of the wide rule-making power contained in clause 128(1). We have of course listened closely to Members on both sides of the Special Standing Committee on this issue and we will consider the points made by them when we come to consult on detailed proposals.

Amendment No. 130 clarifies that a parent or guardian can attend a hearing for a placement order, for a variation or revocation of such an order, or for an adoption order, and may be heard as to their view regarding the proceedings. That is not necessary, because it is legally implicit in the current drafting that notice is given to a person for the same purpose that he is entitled to receive it—that is, to give or withhold consent, apply for leave or whatever. The amendment would not add anything of substance to what is implicit in the Bill.

The hon. Member for East Worthing and Shoreham (Tim Loughton) invited me to comment on amendments Nos. 235, 236 and 237. As he suggested, clause 130 makes provision in relation to offences by bodies corporate and unincorporated bodies. If an offence under the Bill is proved to have been committed with the consent or connivance of, or owing to the neglect of, an officer of a body corporate or an unincorporated body, that officer himself, as well as the body, is guilty of the offence. In cases in which the affairs of a body corporate are managed by its members rather than by officers, the provisions of the clause apply equally to members as to officers.

Amendment No. 235 inserts three new subsections into clause 130. It clarifies the position on taking proceedings against unincorporated bodies under the Bill. The amendment provides for the procedural provisions that already apply to the prosecution of corporate bodies to apply to the prosecution of unincorporated bodies. The second new subsection provides for any fine imposed on an unincorporated body on its conviction for an offence under the Bill to be paid from the funds of the body, rather than from the funds of its individual members.

Amendment No. 237 inserts another new subsection into clause 130. It makes specific provision in respect of partnerships, which are a type of unincorporated body. The amendment provides that if an offence is committed by a partnership and it can be proved that it has been committed with the consent or connivance of a particular partner, or that it is attributable to the neglect of a particular partner, that partner as well as the partnership is guilty of an offence. That aligns the provisions on partnerships with the provisions already included in the clause on bodies corporate and unincorporated bodies more generally, and makes the potential criminal liability of a partner clear.

Tim Loughton

I thank the Minister for her clear explanation of the three Government amendments.

I said earlier that we were potentially sympathetic to amendment No. 130. I feel even more sympathetic to it after hearing it explained by the hon. Member for Lancaster and Wyre (Mr. Dawson). We discussed the issue in Committee, in the context of another part of the Bill. It was generally felt then that information should be made readily available at various stages of the adoption process through various court procedures. Given the emotional state in which people may be when giving up children for adoption, it is even more incumbent on the system to give them every opportunity to participate, to know what they are entitled to, and to be satisfied that the procedures are taking place in accordance with the law and in a fair and balanced way.

I have no doubt that, as the Minister said, what is already in the Bill makes that legally implicit, as she put it, because notice is given. The Minister also said that the Bill set out minimum requirements for court rules, rather than a requirement for the full explanation that would eventually be on offer. I do not disagree, but, as I have said, we are talking about people who are fairly vulnerable emotionally. If I were involved in an adoption process and received notification from the court that unless I wished or was required to attend I need not do so, I would take that almost as an invitation not to turn up. It would, I think, be more positive and more sensitive to put this more clearly and fairly, and say that a person is entitled to turn up and entitled to speak if he or she sees fit. That, I believe, is the intention of the amendment.

The hon. Member for Lancaster and Wyre pitched it fairly high, saying that this was a fundamental human right. It is certainly a fundamental human right for people to be fully involved in the process, but I think it only fair and sensible—in order to achieve an equitable result that everyone will accept long after the matter has passed through all the necessary court stages—to make clear to people exactly what they can do, and are entitled to do. That is all that the amendment proposes.

I doubt whether the hon. Gentleman wants to press the amendment to a vote, but I wanted to reinforce its aims in the hope that the Minister would beef up the directions given to courts when their rules were being established, rather than treating the requirement as a minimum requirement and letting it slip through as such. I think there is a world of difference between being negative and being positive—encouraging people and telling them their rights.

Madam Deputy Speaker (Sylvia Heal)

I remind Members that we are not in Committee. I was perhaps rather generous in allowing the hon. Member for East Worthing and Shoreham (Tim Loughton) to speak again.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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