§ [The Deputy Chairman of Committees (Lord Haskel) in the Chair.]
§ The Deputy Chairman of Committees (Lord Haskel)
Perhaps I may remind the Committee that if a Division is called in the main Chamber, this Committee adjourns for 10 minutes to enable noble Lords to vote.
Clause 29 [General prohibitions on removal]:
§ Lord Clement-Jones
moved Amendment No. 67A:Page 19, line 4, leave out paragraphs (a) and (b) and insert—() a child is subject to a placement order,The noble Lord said: I rise to move Amendment No. 67A and speak to Amendments Nos. 67B, 67C and 67D, and in fact the clause stand-part debate following will also be relevant. These amendments follow closely, and indeed could have been grouped with, Amendments Nos. 51A, 52A, 54, 54A, 54B, 54C and 53A, which we spoke to when the Grand Committee previously met. They are, like those amendments, based on the premise that there should be a placement order in every case, even where consent to placement is forthcoming.
The aim of the amendments, and indeed of the clause stand part debates on Clauses 30, 31 and 33, is to ensure that once a placement order is made following judicial scrutiny, the placement should not be disrupted without the leave of the court, or the consent of the agency.
The advantage of this for the adopters is that they will know if a child is placed with them under a placement order, even if it was made by consent, but the placement cannot be disrupted by a parent who has changed his or her mind without the court being satisfied that there is sufficient change in circumstances to merit sanctioning a change. Conversely, a parent consenting to placement should do so only having taken into account that he or she cannot change his or her mind later without good cause.
As the proponents of the earlier amendments explained, the whole purpose of this is designed to reach some kind of certainty early in the day, but to avoid finality where parents give their consent to a placement without a court order. I beg to move.
§ Lord Campbell of Alloway
I support the concept of this amendment in the hope that it could perhaps commend itself to Government.
§ Baroness Howarth of Breckland
I have concerns because the provision follows on the making of a 182GC placement order in each circumstance. I am not convinced that is necessarily in the best interests of all adoptive families, and indeed of ordinary families, and certainly all children.
I believe the placement order should be in place to ensure that when a parent might change his or her mind, where there are difficult circumstances, the child is secure. There are circumstances in which families simply want to place their child for adoption, and social workers will say that one of the things that delays the progress of adoption is the time waiting for court hearings. I know that the noble Lord, Lord Clement-Jones, said that we should make time available if we pass this legislation. However, I was simply referring to waiting times at the moment for urgent issues, including criminal cases where children are witnesses and where they are supposed to be a priority. There is still a great difficulty about court time. I should prefer to see a situation where we have placement orders in circumstances that have been assessed as needing placement orders, and not have placement orders in other circumstances. Then, if you like, we would not need this convoluted process with which I was struggling—though I believe I have got my mind around it now—during the last debate.
§ Baroness Andrews
As the noble Lord. Lord Clement-Jones, has said, these amendments take us back to earlier amendments when we explored the differences in concept and application between placement with consent and the application for a placement order. The overall intention of the Bill, as I described it on Tuesday of this week, is to try to redistribute the power available to prospective adopters and birth parents, so that there is a more equal opportunity for birth parents to be fully informed and involved at an earlier stage so that irrevocable decisions are not taken. The noble Baroness described it as the "High Noon" situation at the point when the application for adoption is made.
I shall address the amendments in some detail because they are rather complex, although I appreciate the brevity with which the noble Lord introduced them. As part of these changes, the Bill must inevitably reflect those changed parameters when it comes to removing children from placement with consent. It has to ensure that the rights that are available to families involved are also matched by the security afforded at different stages of the process.
At the moment, through a combination of Clauses 18 and 51, the Bill ensures that in consent cases the parents can change their mind about placing the child for adoption at any stage up to the point at which an application for the final adoption order is made. It is worth emphasising this point. Although the birth families will have support to understand and explore the implications of what they are doing, we have gone to some pains to ensure that they can change their mind at any point.
Under Clause 41, there must be a minimum of 10 weeks between the child being placed with prospective adopters before they are able to make an application for adoption. So the Bill provides for parents to change 183GC their mind in consent cases and to have their children returned. That being so, we have attempted to provide within the range of options both care and flexibility in Clause 29.
Perhaps I may briefly outline what the clause is intended to do. Clauses 29 to 34 place restrictions on removing children subject to the placement provisions. Clause 29 sets out the general rules and Clauses 30 to 34 expand on those to cover placements both with consent under Clause 18 and under placement orders.
Clause 29 provides, first, that where a child has been placed for adoption with consent, or where the child is under six weeks of age—we have dispensed with the parent having to give consent for that period—it is an offence for anyone other than the adoption agency, whether that is a local authority or a voluntary agency, to remove the child from the prospective adopters. It also provides for the alternative situation; namely, Where the child is still waiting to be placed with prospective adopters and is being accommodated by the adoption agency, whether it be in a children's home or with foster parents. But, again, only the agency can remove the child. The same rule—that only the agency can remove the child from the placement—also applies where the parents withdraw their consent to placement under Clause 18. Clauses 30 to 32 set out what happens in those circumstances.
Where the parents have consented, it is only the adoption agency that can act to remove the child. Where the parents have withdrawn their consent, it is still the adoption agency that would remove the child and oversee the return to the parents. In addition, the adoption agency is able to remove the child from the placement at any point, regardless of whether the parents have requested the return of the child. For example, we are thinking of situations where the agency was concerned that the wrong judgment had been made and the placement was failing. In that situation the agency would be able to step in and remove the child.
The removal provisions work broadly as follows. Where a child is placed for adoption by consent and that consent is withdrawn, the child must be returned to the parent within 14 days. If consent is withdrawn before the child has been placed, the child must be returned to the family within the week. I should point out that we made that concession: we reduced the period from 14 to seven days after representations from the agencies involved in adoption.
The clause gives parents substantial rights to have the child returned if they change their minds. We obviously have to provide for those situations where the local authority does not think that that is the right thing to do, even where the parents have withdrawn their consent. Where that is the case, and provided that the authority considers that the significant-harm threshold is met, under Clause 21, the authority is under a duty to apply for a placement order.
Under Clause 29(2), once the authority has applied for the placement order, the child may be removed only with the leave of the court. Again, for consistency, 184GC depending on whether the child is placed or waiting for a placement, the local authority must make that application within the seven-day or the 14-day period. Once the application is made, until the issue is resolved, the child may be removed only with the court's leave. This is to minimise the disruption for the child, otherwise, the child might be returned to the parents and removed again if a placement order is made. I take to heart what the noble Baroness, Lady Howarth, said not only about the court time involved, but the processes and how they may affect the child.
I now turn to the placement order. The restrictions on removal, once a placement order has been made, are dealt with in Clause 33. Again, only the local authority may remove the child, and it can do so at any point. However, unlike a placement with consent under Clause 18, where a child is under a placement order, there is no provision for the parents to have their child returned to them as of right at their request. Their only option would be to apply to the court to have the placement order discharged. They would hope that in doing so, the court would provide that the child should be returned to them. Under the noble Lord's amendments, that would be the position in every case, because related to the discussion we had on Tuesday, there would be a placement order in every case.
I have described how the removal provisions work. The main point is that only the adoption agency may physically remove the child, but there is a caveat in the Bill. Subsections (6) and (7) of Clause 29 have made it clear that none of the provisions in Clauses 29 to 32 prevent the removal of a child who, for example, is arrested or removed as a result of a local authority or any other persons exercising a power conferred by any enactment. It is important to ensure that the removal provisions do not cut across local authority child protection powers under the Children Act. While these clauses reflect the right of parents to request the return of their child from placement with consent, at every stage up to the application of the final adoption order, they place the power of making the physical removal with the adoption agency.
We have done this because placement for adoption is a serious undertaking. It is of a different nature from a temporary foster placement or temporary respite in care homes. Given the different nature of placement for adoption, it is right to provide that where the parents ask for the return of the child, the parents simply cannot walk in and remove the child at will. Removal in whatever circumstances, whether from an actual adoptive placement or a pre-adoptive placement, has to be handled sensitively and consistently. We believe that the adoption agencies are right organisations to do that.
In the light of that, the Government believe that the process of preparing them to be returned to their parents, and the actual process of return, should be handled by the adoption agency. As a consequence, where consent has been given to place a child for adoption where the local authority has applied for a placement order, the clauses have the effect of 185GC restricting parents under the Children Act to remove children who were voluntarily accommodated under Clause 20 of the Act.
Where such children are in voluntary accommodation and their parents have consented to place them for adoption, if consent is withdrawn, they no longer as now have the right to remove those children themselves. In those cases, too, it has to be the adoption agency which removes the child within the defined period. I want to stress that the removal of those rights applies only where the child has been placed for adoption or where applications for placement orders have been made. The wider rights of parents to recover children accommodated under the Children Act, not in connection with adoption, are not affected.
Finally, subsection (9) of Clause 29 imposes a penalty of three months' imprisonment and a fine of up to £5,000, or both, for breach of the removal provision.
I turn now to the details of the amendments. I understand that the motivation behind the amendments is to simplify the provisions. One consequence of removing the option for placement with parental consent under Clause 18, in favour of placement orders in relation to every child in every family, is that the placement order removal restrictions would obviously apply to all adoptive parents. That is reflected in the amendment. The overall effect of the amendment is that once the placement order is made, the child should be removed from the placement only by the decision of the local authority, and physically removed by the local authority. The parents would have no right to request removal of the child or to have the child returned to them within a set period, as they currently do in placement with consent under Clause 18.
We believe that where a placement order is necessary, that is broadly right. However, as the Committee will by now appreciate, we believe that there should be this alternative route for parents. The difficulty is that the amendments would not allow that. They would not allow parents the opportunity to change their minds before the point of application for the final adoption order. Even if the placement order were made with the consent of parents, once the placement order was made, that would be it—parents could not change their minds; they could not ask for their child's return. The only option would be to apply to the court under Clause 23 to discharge the placement order.
That is a major change from the current position whereby children voluntarily accommodated under Section 20 of the Children Act are placed for adoption. At the moment, parents can exercise their right to have the children back. Yet, those placements generally proceed very successfully on this voluntary basis. Under the proposed amendment, all such cases would be under placement orders and parents would lose their ability to secure the return of the child without going to court. The Government believe that it is worth keeping open the voluntary option.
186GC To reiterate, under our proposed provisions, when parents have given consent to placement and decide to withdraw, they can have their child returned without needing to go to court within the seven or 14-day period, depending on the situation of the child. The only exception is where the local authority has applied for a placement order. Although we do not think that that is complex, as we shall see when we come to look at the amendments in detail, a degree of complexity has certainly crept in.
Taking Amendments Nos. 67A, 67B and 67E together, part of the problem we seem to have uncovered is that Amendment No. 67E risks undermining the intentions of Amendments Nos. 67A and 67B. It is a rather complex matter. Amendments Nos. 67A and 67B amend subsection (1) of Clause 29, to remove references to Clause 18 and to provide that the restrictions on removal in Clause 29 apply to all placements. Although it is not entirely clear, I presume that that means placements whether the child is placed or awaiting a placement. I am not sure that the word "placement" itself actually delivers that.
I anticipate that this amendment needs to be read in the context of the proposal that Clause 33 should not stand part of the Bill. I am, as I said, therefore assuming that it is intended to apply in all cases. The intended effect is that only the adoption agency may remove a child from placement. As I said, that would leave an application to the court to discharge the placement order as the only recourse for parents in consent cases who have changed their mind.
However—if I am right and the amendments are intended to reflect the position whereby the parents of a child under a placement order who want the child back may not remove him without going to court to discharge the order—Amendment No. 67E seems to cut across this objective. The reason for that is that Amendment No. 67E amends subsection (6). As I said, the purpose of subsection (6) as drafted is to ensure that the removal provisions do not block removal by local authorities in relation to arrest or child protection powers.
However, the effect of Amendment No. 67E would be to restore parents' rights under the Children Act, so that they themselves could at any point remove a child voluntarily accommodated under Section 20 of that Act. Therefore, the adoption agency would not be the only one that could remove the child. The effect of the amendment would be that, where the child has been voluntarily accommodated before being placed, the child's parents could at any time turn up and remove the child from the placement. I think that that would undermine the intention behind Amendments Nos. 67A and 67B. We do not think that the amendment is desirable, and the noble Lord, Lord Clement-Jones, may agree with us.
In addition, where a child has been voluntarily accommodated but the local authority then decides that the child should be adopted and applies for a placement order, as currently drafted, subsection (2) of Clause 29 would prevent the parent or anyone else from removing the child without the leave of the court. 187GC One effect of Amendment No. 67E would be that, in such situations, the parents would be able to remove the child at any point. We do not think that that would be appropriate. When an application for a placement order has been made, the issue should be determined by the court. Pending resolution of the application, the court should have a say over whether the child is moved. Of course, the parents would be able to exercise their Section 20 removal rights unfettered at any time before the point at which an application for a placement order was made.
The matter is not straightforward, unlike those dealt with in the remaining amendments. Amendment No. 67C would delete subsection (3) which covers restrictions on removing children where an agency was authorised to place the child under Clause 18, but the child had not yet been placed with prospective adopters. The subsection would clearly not be necessary if there were no Clause 18 placements.
Amendment No. 67D reflects the forthcoming debate on stand part by deleting references to Clauses 31 and 32 from subsection (4), which provides that the general removal restrictions in Clause 29 are qualified by the specific provisions in the following clauses.
These amendments essentially flow from our earlier debates. If that point is accepted, then the thrust of the changes proposed by the amendments would be sensible. As I said, however, it could be argued that the restrictions on removing a child may be somewhat "rigid" for what is supposed to be a consensual, voluntary placement—which is our objective in Clauses 17 to 24—arrived at, we were assured earlier, after the briefest of court hearings. That indeed was part of the case that was made. However, there seems to be little scope for parents to change their minds under these proposals. We argue that Clause 18 is valuable and that the route it offers should be retained. Consequently, in all logic, the provisions in Clause 29 and later clauses need to be retained.
I have made it clear why we oppose in principle the thrust of the amendments. I have also set out why, regardless of our difficulties in principle, we have some concerns about their detailed operation. I am also conscious that we have necessarily dealt with this matter in a rather technical way. I should therefore be happy to provide to the noble Lord, Lord Clement-Jones, and to any other noble Lords, a detailed explanation in writing or in a briefing which we could organise. If that would be helpful I should be very happy to do it. I hope that the essence of the argument and the Government's position, as expressed in the clauses themselves, are clear.
§ 4.15 p.m.
§ Lord Clement-Jones
I thank the Minister for that extremely concise, precise and explicit explanation of the effect of these provisions. I have a vision of lawyers in the future poring over the noble Baroness's speech, because it will probably be the best gloss available, if this part of the Bill stands, on precisely what effect the provisions are designed to have.
188GC In many ways the length to which the noble Baroness, Lady Andrews, had to go in explaining how this part of the Bill would operate demonstrates its convoluted nature, and the reason why so many stakeholders believe that this is not the best way of proceeding. That is why, although it may appear to be slightly harsh in some cases, the placement order which goes to court—which then does not have Clauses 30, 31 and 33 involved, but simply requires one to apply to court, or the agency comes back and removes in those circumstances—is preferable as a much clearer way forward.
The noble Baroness, Lady Howarth—whose speech I found very interesting—described this part of the Bill as convoluted. Having done a fair amount of reading between our previous Sitting and today, she has clearly come to grips with it. It is very difficult. We on these Benches would much prefer to see something clearer which gave that certainty. The agency would have powers of removal if it applied to the court and the order was made. However, the point at which discussions truly occurred would be in court when the placement order was dealt with.
There may well be issues about resources and about whether access to court is available and so on. However, when this House legislates, we assume that the resources will be made available to implement that legislation. We do that in relation to our NHS reform Bills every day of the week. If Bills are passed but resources are not available, we want to know why. The same would be true if we passed legislation simplifying the process so that placement orders had in each case to be dealt with in the court.
§ Baroness Andrews
I am grateful to the noble Lord for giving way. I think that much of the complexity attaches to the amendment rather than to the clauses themselves. We are dealing with three steps here. Under the clauses on placement by consent, one can ask for the child back. If one does, the agency must return the child within seven or 14 days depending on whether the child is placed or waiting to be placed. The only exception is if the local authority has to seek an adoption placement order. That is the essence of the clauses. However, I am grateful to him for describing what I thought was a complicated matter as he did. Nevertheless, I believe that it is simpler than he thinks.
§ Lord Clement-Jones
Clearly we have a philosophical difference as to whether it is the Government's scheme or the scheme proposed in our amendments that is complicated. I should think it self-evident that we would make progress on simplification if we removed three clauses from the Bill. As the Minister is shaking his head, we clearly have a different philosophy of regulation, too.
I do not think that we are going to get much further on the matter; this is the second stage of debate on it. I shall read very carefully what the Minister had to say. Nevertheless, there is still quite broad disagreement on this part of the Bill. I shall take on board what she said about Amendment No. 67E, and about its interaction with the 1989 Act. It may well be that there is a drafting 189GC flaw. Although we on these Benches are not always known for the precision of our amendments, we have at least had a useful debate on this broad point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 67B to 67E not moved.]
§ Clause 29 agreed to.
§ Clause 30 agreed to.
§ Clause 31 agreed to.
§ Clause 32 agreed to.
§ Clause 33 agreed to.
§ Clause 34 [Return of child in other cases]:
§ [Amendment No. 68 not moved.]
§ Clause 34 agreed to.
§ Clauses 35 to 37 agreed to.
§ 4.30 p.m.
Baroness Barker moved Amendment No. 69:
After Clause 37, insert the following new clause—
§ "REGISTRATION OF PRIVATE FOSTER PARENTS
§ For section 69 of the 1989 Act (power to prohibit private fostering) there is substituted—
§ "REGISTRATION OF PRIVATE FOSTER PARENTS
- (1) Every local authority shall keep a register of persons who act as private foster parents within their area.
- (2) A local authority shall not register any person as a private foster parent unless it is satisfied that he is fit to act as a private foster parent.
- (3) The Secretary of State shall make provision, pursuant to section 1(2) of the Adoption and Children Act 2002, as to the considerations to which a local authority is to have regard in reaching a decision as to whether to register a person as a private foster parent.
- (4) A local authority shall cancel the registration of any person under section (1) if—
- (a) it appears to them that the circumstances of the case are such that they would be justified in refusing to register that person as a private foster parent;
- (b) the care provided by that person for any privately fostered child is, in the opinion of the authority, inadequate having regard to the needs of that child; or
- (c) the premises in which any privately fostered child is or would be accommodated are not suitable for that purpose.
- (5) No person shall act as a private foster parent unless he is registered under subsection (1).
- (6) A person who contravenes subsection (5) shall be guilty of an offence.
- (7) A person guilty of an offence under subsection (6) shall be liable on summary conviction to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the standard scale, or to both.
- (8) A person aggrieved by the refusal of a local authority to register him as a private foster parent may appeal to the court in accordance with paragraph 8 of Schedule 8 to this Act.""
§ The noble Baroness said: I rise to move Amendment No. 69 standing in my name and that of the noble Lord, Lord Chan. At the outset, I pass on to the Committee the apology of the noble Lord, Lord Chan, for not being able to be here today.190GC
§ The amendment deals with a very important and much overlooked subject; namely, that of private fostering. My interest in, and my entire knowledge of, this subject were sparked when I started to read the Bill; I was previously unaware that private fostering arrangements are permissible. I suppose that that was because I had missed one very small but significant fact; that Victoria Climbié was a privately fostered child. In the months since her death, there has been a great deal written and discussed, principally in the social work journals, about private fostering.
§ Many people are genuinely unaware that certainly since 1989 there has been a legal duty upon anybody who privately fosters a child to notify his or her local authority. In fact and in practice, very few people do so.
§ It may help Members of the Committee if I explain to them, as it was explained to me, what the term "private fostering" really means. It means a wholly private arrangement between birth parents and any private individual to look after a child for a length of time. Such arrangements are fairly common. It is impossible to be more precise because nobody knows how many private fostering arrangements there are.
§ This issue has been the subject of study over many years. In 1973, Mr Bob Holman produced a report entitled Trading in Children. In it he talked about the fact that there were any number of children in these long-term but wholly unregulated relationships. He concluded, at that time, that they were perhaps some of the most vulnerable children in our society. Interestingly, in 1973 he called for a system of registration. His findings were ignored then; and hence earlier on last year, in the wake of the Victoria Climbié case, he was back on television saying exactly the same things that he had said in 1973.
§ In 1997, BAAF—the British Association for Adoption and Fostering—did some work with the African Family Advisory Service and, as a result, it produced its report entitled A Very Private Practice. It is perhaps the most comprehensive study of this subject in this country, and it makes for some rather horrifying reading. Its main finding was that, although local authorities have a duty to look after any child who they may have reason to believe is in a private fostering arrangement, in practice very few can do it. It is impossible to find many local authorities which know how many children are in such arrangements. If these children are not known about, they are quite often extremely vulnerable.
§ What A Very Private Practice did discover and talked about were the different types of arrangements which exist. It is not uncommon in this country for children who have been here all their lives to hit adolescence, with all the horrors that that brings for them and their families, and to go off and live with another member of the family for a period of time. That is not really what we are talking about here. We are talking about a large number of children, many from particular minority communities, whose birth families remain in their country of origin but who are sent to this country by their parents in the belief that in this country they will have a better life.191GC
§ There is also another subset of children; the children of people in this country who are often students — medical students and so on—who come from a culture where it is normal and accepted practice to send children to extend members of the family to be looked after for quite long periods of time. Therefore, there are not only the matters of children's vulnerability, about which we have spoken so far, but there are also, for some of them, acute issues about culture and distance from their parents.
§ It is the case that notification is supposed to be given to local authorities. It is also the case that that rarely happens. That is not because people are defying the law; in most cases, it is because they simply do not know that they have to. Most people just do not know; they have come to a working arrangement that may exist within their family, so why should they tell anybody about it?
§ There are also, however, arrangements which are commercial transactions.
§ The Deputy Chairman of Committees
There is a Division in the Chamber. The Committee stands adjourned for 10 minutes.
[The Sitting was suspended for a Division in the House from 4.37 to 4.47 p.m.]
§ Baroness Barker
Noble Lords may well remember the period when The Times newspaper was not published for a year. On the first day after the end of the dispute when the paper reappeared, Bernard Levin started his column with the words, "As I was saying before I was so rudely interrupted".
Before the Division was called I was setting out some of the background to some of the studies that have been done on the subject of private fostering. It is important to look at the Government's response. In 1998 the Department of Health, responding to publications by BAAF, said that at that time the Government did not consider that a new system of regulation was necessary as there was already a wide range of regulations associated with the offences which might occur in relation to private fostering and adoption.
In 1999 the Department of Health said that the Government would take steps to enforce current regulations on private fostering more effectively and that legislation would also be introduced to target private fostering regulations and placements lasting more than 42 days. That legislation has not been forthcoming. However, two things did happen. One was that a leaflet was produced for professional staff, principally for teachers, to make them aware of the existing provisions surrounding private fostering. A leaflet was produced which was intended to inform private fosterers of their responsibilities but, as far as I have been able to determine, the leaflet appeared only on the Department of Health website and, therefore, did not have much currency within the general population.
192GC It is also worth noting that, over this period of time, all other forms of childcare, with the exception of nannies, have come under increasing regulation and this is the one remaining area where children may be away from their parents for an extended period of time without any supervision or inspection by anybody.
One of the categories of children who frequently are mentioned in relation to private fostering regulations are children who come to this country to stay in language schools. However—the Minister will correct me if I am wrong—I believe that language schools now come within the Ofsted provisions and, indeed, in some cases under the provisions of the Care Standards Act.
The reason for moving the amendment, which I fully accept may be deficient in some respects, is to highlight the need to update the law in this respect. The Social Services Inspectorate has produced a document, By Private Arrangement, which is a consultation document setting out inspection arrangements for supervising children in private foster care. It is a document which draws upon much of the earlier work about which I have spoken. The deficiencies of the existing regulatory framework are highlighted quite graphically in that. When the Social Services Inspectorate set out to do this work, it set itself a target of finding eight local authorities that it could examine in detail—it found only five. Therefore, it had to find others and make some extrapolations. The fact that the SSI was unable to find eight local authorities which could provide it with the information that it needed speaks volumes.
There is one other reason which is fairly compelling for considering this matter now. As I said, all other forms of childcare have been increasingly regulated over the past few years; private fostering has not. Sir William Utting, in his report in 1997 entitled, People Like Us, referred to private fostering as a potential honey-pot for paedophiles and people who seek to do harm to children. It is the sincere belief of many of the organisations working in this field that, as regulation is increasingly effective in all other forms of childcare, the potential for abuse within private fostering is increasing. As someone who believes passionately that anyone who wishes to be considered fit to assume care and responsibility of a child has a duty to prove that that is so, I believe that that is a loophole which should be closed, and should be closed now.
I anticipate that in his reply, the Minister will put forward the argument that the noble Lord, Lord Laming, is currently conducting an inquiry and, although that inquiry has been delayed yet again, it will come to public view probably in the latter part of this year.
That report will inevitably appear after we have completed deliberations of the Bill, and I suspect, after it has been further reviewed in another place. If the Committee does not take this step now, when will there be another opportunity in the legislative timetable to address the issue?
193GC I suspect that I will be accused of being somewhat premature in raising the issue now in the light of the inquiry by the noble Lord, Lord Laming. However, I contend that the issues surrounding private fostering have not changed since the 1973 report was put forward; that many of those issues remain to be addressed; that whatever the outcome of the report of the noble Lord, Lord Laming—a report which cannot and will not be ignored—there exists a loophole which enables children to be placed in the most vulnerable of situations. Therefore, it is not premature to consider the issue now. I beg to move.
§ Earl Howe
I rise briefly to support this amendment which seems to fill a serious and longstanding gap in the law relating to fostering. The problem with private fostering, as the noble Baroness, Lady Barker, indicated is that we do not know how big the problem is. That there is a problem is not in doubt. Five years ago, the Utting report flagged up some serious concerns about the risks to children who have been privately fostered. While it is perfectly true that local authorities have some powers that they can deploy where necessary, not many do so with any degree of energy.
Even if one sets aside the obvious risks of private foster carers abusing the children in their charge, and such people are obviously wholly unsuitable to act as surrogate parents, there are other, perhaps less visible, risks.
In 1988, the African Family Advisory Service found that local authorities and private foster carers had little or no knowledge of the children's medical histories, particularly crucial sometimes in West African children who may have sickle cell disorders, for example. It is estimated that between 80 and 90 per cent of private foster placements involve West African children. Privately fostered children were often passed around like parcels from one set of foster parents to another, without any control whatever. There was no formal system to enable local authorities to keep track of where children were, and not a few children disappeared altogether.
Children suffered behavioural and other problems due to unsatisfactory placements, and where West African children were with white foster parents, their cultural and racial identity was not respected or understood. There is no reason to believe that if a similar survey were carried out today, the results would not be identical. One has to ask what possible reason the Government could have for not following the recommendation of Utting that private foster carers, like all other foster carers, should be subject to a system of approval and registration. Even childminders are subject to registration.
There is a vast difference between a situation where a child is entrusted to the care of a friend or a neighbour for a day or two, and the situation where a child is handed over indefinitely to the care of strangers without any prior investigation into the suitability of those people to look after the child. The risks are huge. Indeed, Utting stated that privately fostered children appear to be more vulnerable to 194GC abuse and neglect than children in local authority foster care. Signposts, the report of the 1993 Social Services Inspectorate Inspections, referred to,very real concerns about the welfare of the children".Against that background, the existing law is weak. It seems crazy that a local authority which wants to remove a child from the home of a private foster carer can do so only if it applies to the court. If an authority wants to remove a child from one of its own foster carers, there are emergency procedures that it can trigger, and the child can be removed without delay. However, a private foster parent, unapproved and unregulated, is in this sense legally on a par with birth parents, and that has to be a huge anomaly.
The status quo should not, I believe, be an option for the Government, and I hope that they will look with favour on this amendment.
§ 5 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
I am very grateful to the noble Baroness, Lady Barker, for bringing this matter to our attention.
When we debated the passage of the Care Standards Act we had a long discussion on the whole area of private fostering, and I recognise it is an important area of concern. As both the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, have suggested, it raises concerns about the welfare of children who are privately fostered.
At the moment, private fostering is an agreement where a child under the age of 16, or under 18 if disabled, is cared for by someone who is not a parent, step parent, or has parental responsibility, or is a close relative, for a significant length of time; in other words, 28 days or more. The Children Act 1989 provides a legal framework for notification that requires the private foster carer, and the person with parental responsibility, to notify the local council of the proposed private foster care arrangement.
Once the local authority knows about the impending arrangement, the Children Act requires the local authority to satisfy itself that the welfare of the child is being satisfactorily safeguarded and promoted by others by supervising, regulating and advising it in respect of the private placement. The local authority is then required to visit at specified intervals and to report on those visits. The local authority must satisfy itself that the foster parents' household and accommodation are satisfactory, and it has the power to impose requirements, or if there are serious concerns, to prohibit the fostering arrangement.
As the noble Baroness, Lady Barker, suggested, there are very different circumstances under which private fostering takes place. We know that common types of private fostering arrangements include the practice of African children being sent to England in order to benefit from a good education; or, as the noble Baroness suggested, many teenagers move in with the parents of boyfriends or girlfriends following family rifts, and others stay with school friends, or neighbours following family disagreements, separations, or indeed divorce.
195GC Clearly this is a legislative framework intended to provide adequate protection, but as the noble Baroness, Lady Barker, suggested, and as the recently published SSI report confirmed, there are issues of concern. The noble Baroness is right that only five out of eight councils which in a sample survey were asked for information were able to provide a significant sample of children and carers. As a result, a further five authorities were then asked to provide some basic information in order to supplement the inspection task.
This report confirmed the lack of awareness by carers to notify the arrangement to local authorities, and also highlighted the lack of awareness by local authority social services departments of their responsibilities to privately fostered children. I well understand the importance of this issue. I accept that Amendment No. 69 would require local councils to keep a register of private foster carers in their area. It would also require the council to be satisfied that the premises are suitable and that the person,is fit to act as a private foster parent",in order to register him or her.
Under this proposed new clause, potential private foster carers would be required to register with local councils prior to entering a private foster arrangement. Private foster carers failing to register would commit a criminal offence. This matter was discussed not only during the debates on the Care Standards Act, but also during the Report stage of this Bill in another place.
I should outline the Government's position on a registration scheme. We are looking most carefully at it, although it is fair to say that we remain to be convinced that a scheme as proposed by the noble Baroness would solve all the problems that currently exist. Some of the discussion that is taking place is essentially as follows. If a heavy-handed regulatory approach were adopted, it might succeed only in pushing private fostering further underground. It would not solve the significant obstacle of the lack of notification of private foster arrangements, which is one of the key issues that we face at the moment. Nor does it seek to overcome the problem that private foster carers do not currently see any benefits themselves in registration and, therefore, would probably continue to operate without telling the local authority.
A blanket approach to registration may not work as successfully as suggested by the noble Baroness. However, I readily acknowledge that there is no doubt that the current arrangements are unsatisfactory. That is why my honourable friend Jacqui Smith announced a government review of the situation earlier in the year. There is a wide range of stakeholders involved, including Members of Parliament and private foster carers. The review is focusing on the existing arrangements within Part IX of the Children Act, and will consider whether they are robust enough to protect vulnerable children while they are living away from their parents.
196GC We have had meetings involving the major stakeholders, and other government departments, covering issues such as notification of private arrangements, and standards and thresholds of involvement in private fostering arrangements. Private foster carers, those who are being cared for privately, and their parents, are being interviewed. An account of their experiences will be used to further the process of reaching conclusions in terms of the review.
In addition, as the noble Baroness suggested, we anticipate that the findings from the Climbié inquiry in the autumn will also be very relevant to our deliberations as to how we should take the process forward. I understand why the noble Baroness presses us on legislation at the moment; that is entirely consistent with what she has been saying over the past two years. However, it would be unwise to rush into legislation without knowing the conclusions of the review, or, indeed, of the review of the noble Lord, Lord Laming. As I said, that inquiry is due to report in the autumn.
As I promised during the passage of the Care Standards Act, we have taken this opportunity to send reminders to local authorities as regards their responsibility. As the noble Baroness suggested, we have produced leaflets in order to raise public awareness about this issue. The leaflet went wider than the Department of Health website, though I recognise that there is always more that can be done. In the light of the noble Baroness's comments, I shall look into how effective we are being and consider whether we need to improve our efforts in that direction. I also recognise the point that she made about language schools. I understand that language schools are not classed as schools and therefore are not regulated by the DfES or Ofsted. We are trying to encourage a voluntary accreditation scheme as one way forward.
I know that the noble Earl, Lord Howe, raised the issue of the contrast between the regulation of private fostering and regulation in other areas such as child minding. I fully acknowledge that child minding has been treated differently and that was the subject of our debate during the Care Standards Bill. It reflects to some extent the differing circumstances in which child minding operates. Child minders tend to undertake their duties on a self-employed basis in expectation of regular payment. That is significantly not the case in the vast majority of private foster care arrangements. I can assure noble Lords that as part of the current review of private fostering, we will examine the arrangements surrounding the child minding registration scheme in order to evaluate how effective it is and whether elements of the scheme could usefully be applied to private foster care.
On the point raised by the noble Baroness as to whether there will be another opportunity to legislate on private foster care, she knows that I cannot anticipate future legislative opportunities. However, in my four years or so with a remit in health and social care, we have already taken two Acts through the legislative process. The Adoption and Children Bill 197GC will be the third if it is enacted. Without giving any commitments, I am sure that there will be further opportunities for legislation in the future.
I can assure the noble Baroness that the points she makes the Government accept are important. We accept that the current situation is unsatisfactory. We do not think that a blanket registration scheme is necessarily the answer, but we will, of course, look at that carefully in the light of the current review and the conclusions of the noble Lord, Lord Laming.
§ Lord Northbourne
Before the noble Lord sits clown, I should like to make one fairly obvious point that is too often ignored. It is no good our sitting here making laws unless the resources are made available to carry out the obligations that they impose. I am sure that the noble Baroness will agree that at present some social services departments are so overstretched they do not know whether they are coming or going.
§ Lord Hunt of Kings Heath
The noble Lord takes us back to a debate last week about the willingness and capability of local authorities to take on responsibilities when we were discussing adoption support services. He makes an important point that it relies on local authorities doing the job properly. That is, of course, partly to do with funding and the spending review settlement for local authorities' social services departments in the future was a very good one, with an average of 6 per cent. real growth over a three-year period. However, it is also to do with the effectiveness of management within local authorities. The chief inspector's letter to local authorities was intended to remind them of their responsibilities, but it is clear from the SSI survey that more needs to be done in that direction.
§ Lord Hunt of Kings Heath
No, my noble friend cannot draw me. She knows that I cannot give future commitment to legislation. The noble Baroness, Lady Barker, was concerned that if we miss the opportunity of legislating on private foster care in the Bill, we would be passing up the chance of doing so for a number of years to come. My point was that in fact this was the third Bill relating to social care issues that we have taken through the House in the past two or three years. I was saying that I am sure that there will be opportunities in the future for further legislation.
§ Lord Hunt of Kings Heath
There is no doubt that if, for instance, one wanted to introduce a statutory registration scheme in part or in whole, which is being suggested, legislation would be required.
§ Baroness Barker
With some difficulty I resist the temptation to follow the noble Lord, Lord Northbourne, on one of my favourite subjects; the funding of social services departments. I thank the Minister for his reply. There are, however, a couple of 198GC points that need to be made. The noble Lord talked about the great fear when childminding legislation was introduced that childminding would go underground. The evidence is that it has not and that the registration process has worked extremely well. Both parents as users, and single people who operate as childminders, value registration as being important. I cannot see why childminding, in which a child is very rarely with a childminder overnight, should be more strictly regulated than private fostering.
§ 5.15 p.m.
§ Lord Hunt of Kings Heath
I am grateful to the noble Baroness for giving way. The point I was making is that there are differing circumstances. Unlike childminders, many adults who engage in private fostering do not receive remuneration for it. Therefore, the circumstances are different in relation to whether those private foster carers would wholeheartedly embrace a regulatory system. I also said that as part of the review we will look at how the registration for childminders is working, and indeed if there are good things about that which we could relate to the area of private fosterers, we will certainly look to do that.
§ Baroness Barker
I thank the Minister for the clarification and I welcome it. However, on the basis of some of the evidence I have read so far, I am not sure that he is wholly correct about the nature of the relationship between birth parents and private fosterers. In a great many cases, a financial transaction takes place. However, we will not dwell on that.
The point I wish to make is about timing. I do not see why, in the light of 30 years of research and experience, it is not possible to draw from that some of the clear points which recur time and time again. However, I accept that the report of the noble Lord, Lord Laming, will be a very important piece of this particular jigsaw.
One of the problems I have with the process the Minister has outlined is this. The noble Lord, Lord Northbourne, made a good point about what we say here and laws that we make have only limited effect; what happens on the ground is more important. It is quite clear that thousands of people are in breach of the existing regulations simply because they do not know about them. It is getting the information out to people and making them aware that causes the problem.
When the report of the noble Lord, Lord Laming, is produced and when the Government produce their response, a great deal of attention will be focused on this matter. It would be sad if the Government were deemed to be reactive to one particular incident, when all this work has been going on ahead. In withdrawing my amendment and accepting what the Minister says, I would at some further stage like to seek an assurance from him that the provisions of the existing law will be used by the department later this year—when there will be increased attention on this subject—to get the message across about the need to notify private fostering arrangements. Furthermore, there should be 199GC more targeted messages for communities among whom this is a bigger issue than it is in regard to the general public. For the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 38 to 42 agreed to.
Clause 43 [Notice of intention to adopt]:
§ Lord Hunt of Kings Heath
moved Amendment No. 69A:Page 27, line 12, leave out from first "the" to second "the" and insert "investigation must, so far as practicable, includeThe noble Lord said: This is a minor amendment which completes a change to the Bill, the substance of which was made in another place.
Where an adoption is not happening through an adoption agency—so-called "non-agency cases"— Clause 43 provides that the adoptive applicant has to give notice to the local authority in which he has his home. The local authority then has to arrange for an investigation and report to the court on the case and the suitability of the adopters—an important safeguard for children in cases where an adoption agency has not been involved in selecting and matching the adopters for the child.
At Report stage in another place we introduced amendments to reshape subsection (9) to cover cases where an applicant fulfils the domicile requirements in Clause 47 but does not in law currently have his home in a local authority in England and Wales, perhaps because he is a member of the Armed Forces or a diplomat temporarily stationed abroad. We did not want to block those individuals from adopting under British law simply on those grounds. Therefore, subsection (9) was amended to allow in those cases for us to prescribe in regulations which should be the appropriate local authority where the applicant did not currently have his home in the United Kingdom.
We further amended subsection (5) to make it clear that while the report to the court and the investigation are the responsibility of the local authority, it could arrange for elements of them to be carried out by other suitable organisations. For example, in the case of step parent adoption applications by service families stationed overseas, we would envisage that the Service Families Adoption Agency—a registered voluntary adoption agency—would conduct the investigation and visit the family, as required by Clause 41(7), and would pass the results to the relevant local authority. If the authority was satisfied, it would then submit the report to the court.
Amendment No. 69A completes this change by amending subsection (6), which sets out what the report to the court should cover, to remove the reference to the local authority. This makes it consistent with the position in subsection (5). So the local authority must arrange for the report but may delegate the actual preparation to another body. But whoever does it, the report must as far as practicable cover the suitability of the adopters and any other 200GC matters relevant to the operation of Clause 1, for example, the range of issues set out in the welfare checklist.
I hope that on that basis Members of the Committee will support this minor amendment which completes a change we introduced in another place, which was welcomed as a useful additional flexibility for those British families temporarily stationed overseas such as service families and diplomats. I beg to move.
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Suitability of adopters]:
§ Earl Howe
moved Amendment No. 70:Page 27, line 39, at end insert—() A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.The noble Earl said: I come now to an amendment which enables us to debate another critically important clause in the Bill, Clause 44. This clause relates to the regulations to be made covering the suitability of persons wishing to adopt a child. It is for me a rather depressing state of affairs that the Bill could consign a matter of such central relevance as this to mere secondary legislation.
I shall not anticipate the debate that we shall have shortly on whether unmarried as well as married couples should be able to become adoptive parents. That is a debate on its own. There is a whole range of other issues which are of the utmost significance for any assessment of whether two particular people are, or are not, fit to become adopters. Clause 44(2) specifies that proper regard should be had to the need for stability and permanence in their relationship.
Stability and permanence are, of course, indispensable qualities in any adoptive placement, but how are they to be determined? What are the indicators of likely stability and permanence, and who will be the judge of them? What other qualities should there be alongside those? Surely, for example, there should be an ability to provide a loving and safe home for the child; an ability to provide the wherewithal for the child's upbringing; an understanding of the individual needs and difficulties of the child; a commitment by the partners to each other as well as to the child; an absence of criminal background or any unsuitable domestic history; and many other qualities besides.
I do not suggest that the face of the Bill should carry every element of the checklist that an adoption agency will be charged with filling out when reaching its conclusions, but we surely ought to have some idea of, and be able to debate, those which the Government regard as being of central importance.
Unfortunately, Clause 44 gives us almost no pointers. That is why I suggest, once again, that the regulations to be placed before us under the clause should be subject to the affirmative procedure in order to guarantee both Houses of Parliament the right to debate them.
201GC I fully concede that this is not something that the Delegated Powers Committee of your Lordships' House felt was necessary. However, this Committee is entitled to take a different view from the Select Committee. It may do so in the light of issues of policy which of course the Select Committee is not empowered to take into account. Bearing in mind that no draft regulations are before this Committee, and that we are not in a position to consider these matters in any depth, I submit that this suggestion is not unreasonable.
I am aware that in their White Paper the Government committed themselves to carrying out a fundamental review of the adoption assessment process, and no doubt we shall have to await the outcome of that exercise. The regulations will, of course, take the results of the review into account.
Meanwhile, however, my noble friend Lord Campbell of Alloway has made a very creative and considered attempt to point Ministers in the right direction on these regulations. I will let him speak to them in his own way. I very much support the thrust of what he proposes which represents a distillation of the matters that we discussed on the first day in Committee. I beg to move.
§ 5.30 p.m.
§ Lord Campbell of Alloway
I support Amendment No. 70. The presentation of these three grouped amendments to Clause 44 which bear my name starts with Amendment No. 7OZC. That is the trigger clause in primary legislation which determines the legal efficacy of the subordinate legislation under Amendments Nos. 70ZA and 70ZB. I shall not speak to Amendment No. 70ZB as it is in the next grouping. I support it. It is in the name of the noble Lord, Lord Northbourne.
The subordinate legislation under Amendment Nos. 70ZA and 70ZB has to be approved after Royal Assent as proposed in Amendment No. 70. Having considered that, Members of the Committee have been considering this matter with a short reference to the true effect on enforcement of judicial review, which is the only effective means. At the outset, for reasons that are already wholly apparent, perhaps I may make a formal request, which could herald a formal Motion, that Clause 44 should be committed with Clause 4 and Clauses 48 to 51 for debate on the Floor of the House, to which some reference has already been made on Second Reading.
Amendment No. 70ZC is a DIY effort to crystallise a principle; there is no form of hubris about whether it is totally correct. I am seeking to convey the suggestion that the principle is correct, and this could serve as a vehicle for implementing that principle.
The purpose is to limit the exercise of discretion, which is a wholly exceptional circumstance, and to exclude financial constraints. That is in accordance with a precedent that has already been set by the courts on misuse of assessment for special educational needs to curtail expenditure, and the courts have stamped on that.
202GC It serves as a useful precedent for the situation with which we are faced; that is, the matter to which the Minister referred at col. 80 of the Official Report on 27th June, albeit in context with Amendment No. 16 to Clause 4, tabled by my noble friend Lord Howe. Again, in a way and in another context it runs parallel with this. Of course, both seek to establish in primary legislation the parameters in the case of Clause 4, so that there shall be no exercise of discretion beyond what is stated on the face of the Bill—in this case the parameters.
As my noble friend Lord Howe said, it is wholly apparent now that no draft of these implementing regulations, statutory guidance, will be available for your Lordships' consideration before Royal Assent. Is it not wholly requisite that the nature and extent of the exercise of discretion should be considered by your Lordships and establish that in these situations by primary legislation to define and clarify the status of the legal efficacy of the subordinate legislation, which is on its way? Would it not also enhance the due process of parliamentary approval when we come to approve under Amendment No. 70, which is the ultimate safeguard, save for the courts on judicial review to which I shall turn shortly.
This is a very emotive subject and I try to keep it non-emotive. On an objective analysis, I ask whether it is not consistent with the intent of this Bill that these abandoned children should be entitled to some priority—I stress that and it involves financial priority on resources—for their own sakes and for the interests of society.
One then comes to Amendment No. 70ZA. It seeks merely to reflect the substance of the Committee's debate on Amendment No. 7, other than on subsection (5). Again, the opinion of the Committee is sought; this is a probing amendment. I have kept off the turf on subsection (5) because that now lies squarely within the province of the Minister. He has his letters of 20th and 21st June and it would not be appropriate for me at this stage to seek to anticipate. At least I thought it not proper to do so and I trust that the Minister in due course will give his attention to this.
Perhaps I may mop up a few cross-references, because the patchwork is getting very complex and it may help. To a limited extent, paragraph (a) of Amendment No. 70ZA, which is to do with representation and caring for the child, is considered in Amendment No. 66. At some stage, and assuredly not today—or I shall not deal with it—Members of the Committee will have to consider Article 6 of the European Convention on Human Rights and Article 12 of the United Nations convention.
Today we have Amendments Nos. 115A and 116ZA as supplementary to the Marshalled list, which I support. I prefer my drafting in paragraph (a) on this issue. It is expressed to ensure that the child is heard but I commend the concept of Amendment No. 116ZA as amending primary legislation and affecting children of general application and putting it on the face of the Bill. That is one way in which one removes oneself from the dilemma of not seeing the drafts of 203GC regulations before Royal Assent. So this is an important amendment, albeit that it has come in at the last moment.
The structure of the Bill in Clause 44(1) and (2) has been followed in this amendment, subject to Amendment No. 70ZC which affords a qualified duty as regards exercise of discretion. I draw the distinction, which is firm, that there is no absolute duty as proposed by the amendment of my noble friend, Lord Howe, as supported by many noble Lords, including the right reverend Prelate the Bishop of Oxford and myself, on the grounds that, when discretion has already been exercised on an assessment, there really should be no further discretion to decline to implement the assessment.
On the question of judicial review, there is a considerable measure of misunderstanding as to its effect. First, it is a branch of administrative law, in which "unreasonable" has a wholly technical meaning that is not generally understood. It is a purely discretionary remedy within the inherent jurisdiction of the High Court. It may set aside an exercise of discretion if it is contrary to construction—that is, construction of these regulations or statutory guidance—as applicable to the facts of each particular case, but it is does not, and never can, substitute its own opinion on the merits for those of others who made the decision.
Although the court would have decided otherwise—and, on many occasions, had said so—I have had the conduct of a case on more than one occasion where I have been told, "It's all very well Mr Campbell, we think you're quite right on the merits, but we're not concerned with merits; we're concerned with something quite different." What the courts are concerned with is whether anybody in the same position as the local authority, or provider of services, and so on, or anybody properly directing himself, could—I repeat, could—have made this decision; it is not "would" have made it. If anybody could have made it, they do not say that it is unreasonable, and they do not set it aside. They will only set it aside as unreasonable in the technical sense if they conclude that nobody could have made it.
As must be quite apparent, it is not a wholly effective mechanism. I have conducted more than 50 cases in judicial review, and we all know that it is not an effective mechanism. It is effective as far as it goes, but it is not a review of the merits on appeal by way of a rehearing; and so it is of limited consequence. It may also set aside a decision for unfairness in the administrative process, because it is an administrative jurisdiction, on bias, on the grounds that it was unreasonable in the strict sense to which I referred, or on grounds of error of law as a matter of construction where the devil lies in the detail of the drafting. If challenged, an objective exercise of discretion under Amendment No. 70ZC would be upheld, so on that there would be no problem.
The question of whether deviation from statutory guidance is permissible—the Minister was good enough to write to me about this—is entirely 204GC dependent on the construction of the document. The noble Lord wrote on 26th June to draw my attention to a certain authority of 16th March 1996, in which the reasoning, wholly related to the circumstances of that case, was in effect somewhat elliptical.
The importance of mentioning this at this stage is that that decision did not reach the Court of Appeal; it did not reach the Appellate Committee of your Lordships' House; and it has not the status of a leading authority of general application. It is respectfully suggested that it could not be relied upon as a safe or satisfactory precedent for the drafting of statutory guidance under this Bill. I am grateful, and I apologise for having taken some time.
§ 5.45 p.m.
§ Baroness Blatch
I should like first to support very strongly the notion of using the affirmative resolution procedure. Probably the most critical part of the whole adoption process is making the match between those who are adopting and the child. I cannot think of anything more important than that. I was disappointed to hear the noble Lord, Lord Campbell of Alloway, refer to the fact that we shall not see the draft regulations, guidance or papers regarding the information which will serve as the criteria on which judgments on suitable adoptive placements will be based.
The suitability of any person in regard to adoption, and having regard to the need for, in the first place, stability and permanence of relationship, can mean many things to many people. What we know is that, in the past and in the present, there has been much subjectivity and not enough objectivity. Some prejudicial views have been applied by some involved in the adoption process. So the more we know and the more clearly we can ascertain the criteria laid down to make these judgments, the better it will be. It is so important to know against what criteria those judgments will be made. This should be a matter for the House. That is particularly true if we are not able to see the draft regulations during the Bill's passage.
I should like to comment very briefly on the issue of recommitment. I have enormous sympathy for the notion of recommitting important parts of the Bill. My difficulty is that I do not approve of the Grand Committee process at all. Many do not attend our Sittings in Committee but would be interested in some of our debates. If we went round the Table, I suspect that we would all have a different view on what is important in the Bill, and that other parts of the Bill would be thought appropriate for recommitment. It is a great pity that, when the Bill is considered on the Floor of the House, those rather stricter procedures will kick in. In the Chamber we shall not have this valuable iterative process. That will be lost, and I believe that it is a great pity.
Therefore, I start from the business of saying that the arguments used by the noble Lord, Lord Campbell of Alloway, are appropriate for opposing the whole Grand Committee system itself. I have more difficulty 205GC in saying that little parts of the Bill should be recommitted. However, that is a matter for the Committee to consider.
I believe that we should strive for the greatest possible objectivity and the greatest possible clarity. If we really intend that adoption processes are to work, and if we are to make the most suitable matches between adoptive parents and the children to be adopted, the matter is important enough to come before the Houses of Parliament for their endorsement.
§ Baroness Howarth of Breckland
When I sought to rise earlier, I had planned on making a different point. I should now like first to comment on the intervention of the noble Baroness, Lady Blatch, regarding objectivity. I remind the Committee that there was a departmental investigation into many of the allegations of lack of objectivity in adoption proceedings. That investigation showed that social workers mainly demonstrated objectivity, and that many of the strange stories were myths and legends and not part of practice. We should continually remind ourselves that social workers and adoption workers are making extraordinarily complex decisions in these family situations. We should do all we can to support them in what we say in this Committee and this House.
I leave the legal points to the noble Lord, Lord Campbell of Alloway, and shall concentrate on practice issues. I shall, however, deal with two of the points he made. The first is that I have absolute sympathy with Members about the wish to see what is in the regulations, as they will address the very heart and emotion of the Bill. I agree with the noble Baroness, Lady Blatch, that matching is the core and most important point. That is why I do not agree with the noble Lord that we should deal with parts of the matter off the Floor of the House. The regulations will give an importance to some parts of the Bill which I believe they do not have in comparison with other parts of the Bill. Some people simply want to take a particular view—perhaps a dogmatic view; and clearly I have my own views—on those parts.
We should debate the whole of the Bill in Grand Committee. When we reach the next stage, people will have an opportunity to put those points. The proposal would give undue weight to certain issues, whereas those who are interested in this work should become involved in the broader issues.
I support one part of the proposals. Perhaps I should also say that I am having some difficulty following where we are in relation to the amendments. I support the proposal on independent guidance and representation of the child made by the noble Lord, Lord Campbell of Alloway, and the noble Earl, Earl Howe, in Amendment No. 70ZA. This would be a useful check on some of the issues we raised in relation to regulation. It is very difficult to discuss the detail of regulation because regulation itself cannot be written in Committee; it has to be clarified in consultation. In Committee, issues that do not have much relevance to actual practice are approached differently.
206GC If every child in the adoption process had an advocate with a position that differed from that of the placement authority and the local authority, we could ensure a check on the social work. Such advocates would know whether the child was concerned about the placement and be able to iterate those concerns to the court. I therefore support the proposal that every child should have the opportunity of independent representation. I think that that would address some of the other issues underlying our concerns.
§ Baroness Thomas of Walliswood
I shall, if I may, briefly support the point that has just been made. We sometimes talk about the wishes and thoughts of the child—and I was guilty of this and made the same mistake when dealing with the subject very early in our first Sitting—whereas we should be considering the effective representation of the child's interests in court. There are so many whose interests differ from those of the child.
§ Lord Hunt of Kings Heath
The debate on this group of amendments is very important. In many cases, it links to the debate that we shall have shortly on unmarried couples. I well recognise that we need to consider these matters very carefully indeed. I have listened with great interest to the noble Lord, Lord Campbell of Alloway, in his request that particular clauses be recommitted. He will know that that is a matter for the usual channels. I shall of course ensure that the usual channels are apprised of his wish.
As far as the noble Baroness, Lady, Blatch—who is now not in her place—is concerned, my own experience of Grand Committee—
§ Lord Northbourne
It might be appropriat e for me to inform the Minister that the noble Baroness, Lady Blatch, told me that, unfortunately, she has to be in North London. She said that she was not walking out in high dudgeon.
§ Lord Hunt of Kings Heath
I am relieved to hear that. The general issue of Grand Committee is of course not for this Committee to discuss. We are in our fourth day of debate and it has been an extremely helpful and useful process and very stimulating.
Clause 44 amplifies the general power in Clause 9 of the Bill to make regulations in respect of the functions of adoption agencies and adoption support agencies. Subsection (1) provides that regulations under Clause 9 may make provision as to the matters to be taken into account by an adoption agency in determining or making any report in respect of the suitability of any persons to adopt a child.
Subsection (2) makes clear that the regulations may make provision to ensure that adoption agencies pay proper regard to the stability and permanence of the relationship between prospective adopters when determining their suitability to adopt. The requirements on the stability and permanence of the relationship between prospective adopters, set out in the regulations made under this clause, will apply to the assessment of both married and unmarried prospective adopters. It is on that basis that I readily 207GC acknowledge that this is a very important part of both the Bill and, of course, of our future success—one readily hopes and expects—in improving the overall quality of the adoption service.
In that context, it is entirely understandable that Members of the Committee want to flesh out as much detail as possible as to what is likely to be in the regulations. I fully understand the points that noble Lords are making. I know that there is disappointment that draft regulations are not available and I will come on to the review that we are currently undertaking in this area. In our defence, Clause 44 was introduced at a late stage of the deliberations of the Bill in another place. There simply has not been time to work up draft regulations, which is why we will issue our proposals on the fundamental review of the adopter assessment process for full public consultation later in the year.
When we come to the substantive question, which essentially is how much we put in primary or secondary legislation, we have a balance to draw. On the one hand, the more precise the primary legislation, the more inflexible it could be in practice. In making difficult judgments in relation to prospective adopters, we have to put trust in adoption agencies and the social workers and give them proper discretion. I do not believe, therefore, that it would be wise to set out in primary legislation, or even in regulations, rules so precise that people who would make good adoptive parents were ruled out because for good reasons they may not meet precisely one of the conditions in the legislation.
On the other hand, there is no doubt that all Members of the Committee want to feel assured that stability and permanence in a relationship mean just that and that, as far as one can ever determine the future relationship of any couple, whether they are married or not, those making the judgment feel that the relationship is strong and will last. We all want to give security to the adopted child.
I hope that the Committee will find it helpful if I say, by way of introduction, that I will take away all the points that have been raised in this debate because I am determined to see that we get the right balance. It might also be helpful if I set out the Government's current thinking on what exactly we mean by an "enduring family relationship" and by "stability and permanence".
The concept of family life has been considered in recent case law, although with the noble Lord, Lord Campbell of Alloway present it is somewhat foolhardy of me to mention case law, as I have discovered already from our earlier debate on statutory guidance.
§ 6 p.m.
§ The Deputy Chairman of Committees (Lord Brougham and Vaux)
A Division has been called. The Committee stands adjourned until 6.10 p.m.
§ [The Sitting was suspended for a Division in the House from 6 to 6.10 p.m.]208GC
§ Lord Hunt of Kings Heath
As I was saying, the concept of family life has been considered in recent case law as including,two adult lifetime partners whose relationship is long term and characterised by an emotional and financial commitment and interdependence".That would perhaps provide a starting point for consideration by adoption agencies and the courts, which will look at a range of evidence in coming to a decision about whether the couple has an enduring family relationship. The word "enduring" in the definition of a couple will reinforce the fact that the relationship should be a stable one that both partners intend should last.
We are carrying out a fundamental review of the adopter assessment process and the operation of adoption panels. This review is being taken forward in close collaboration with key stakeholders. The objective of the review is to ensure that the adopter education, training and assessment system is transparent and results in approved adopters who are empowered to meet the needs of the range of children and young people requiring adoption.
The scope of the review will include the range of criteria used for the assessment of potential adopters and the consistency of their application across the country, with a view to improving the process in the future. This will include the issue of judging stability and permanence in a relationship.
As under the present adopter assessment system, it is likely that there will be a number of ways in which adoption agencies will consider the stability of a couple's relationship. These will apply both in cases where a couple applies to adopt jointly and in cases where an individual with a partner applies to adopt as a single person.
At present, as part of the adopter assessment process, a home study takes place over a period of several months. A designated social worker visits the prospective adopters at home in order to establish a detailed view of the prospective adopters, any family members and any other people living in their home.
A professional social worker also typically works through real-life situations with the prospective adopters in order to assess the evidence of the stability of their relationship. The prospective adopters and the social worker will discuss issues such as how they would expect to handle disagreements about the child, and how they currently handle disagreements about other family members.
In addition, adoption agencies ask for confidential personal references about prospective adopters. Personal referees are usually asked to comment on all aspects of the relationship between the prospective adopters, including the amount of time they spend together and the leisure and recreational activities they share.
My sense is that most potential adopters who go through this process find it to be a pretty tough process indeed. We have read of concerns among potential 209GC adopters who have described the process as lengthy, often intrusive, sometimes over-intrusive, and certainly difficult.
I do not comment on that. It should be a tough process, because the judgment that has to be made is an important one. But nobody should be under any misapprehension that decisions to approve prospective adopters are made in a frivolous or light-touch way. That is part of the confidence that must be given to the new system.
We then come to the question raised by the noble Earl, Lord Howe. It is: given that these regulations are so important, should they be undertaken by the affirmative rather than the negative procedure? We had a debate about this earlier, and perhaps there are further amendments to come on other regulations. In deciding on mainly negative regulation—there are three regulations that will be affirmative in this Bill—we are following current practice in relation to such legislation. As the noble Earl, Lord Howe, suggested, the Select Committee of your Lordships' House which considered the matter raised no objection.
However, I recognise the force of the argument put forward by the noble Earl. I also recognise that these are important regulations. I should tell him that I am prepared to consider this matter between now and the Report stage. The noble Earl has made an extremely important point. As I said earlier, I want to ensure that this debate about the balance between how much discretion and flexibility is allowed at local level and what precise matters should be put on the face of the Bill, or in regulations, is carefully considered. I shall be happy to engage in further discussion on that balance between the Committee and the Report stage.
However, I repeat: one has to be extremely careful not to try to define too much in legislation and then allow less discretion to the social workers and the adoption agencies, which would exclude some potentially very good people who were being considered for adoption. That is the balance and the dilemma that we face in this area, but I accept that we must give a clear view as to what we mean by a "stable and enduring relationship". It is important that the broad parameters of that are known and discussed. The consultation process later in the year will be very important in that regard. That is why I have sympathy with the noble Earl's suggestion; namely, that when regulations in this area come before your Lordships' House we ought to consider whether they should be dealt with under the affirmative resolution procedure. I am sure that the noble Earl would not take that as a precedent for any other amendments that he may table in relation to other regulations.
I turn to the very helpful amendments of the noble Lord, Lord Campbell of Alloway. I accept that he is trying to tease out some of the issues in relation to the judgments that will fall to be made as regards Clause 44 of the Bill. The noble Lord has also raised a number of important issues, such as the right of the child to be heard, the question of how we ensure that local authorities do the right thing, and how we monitor the situation. In addition, going back to our debate of a 210GC week ago when we talked about adoption support services, the noble Lord also raised the question of what duty there is on a local authority to provide such services after the assessment.
I come to the question of the voice of the child. We have of course already discussed this issue. There is no question that the Government believe that the child's wishes and feelings should actively he sought and fully taken into account. It is a key value that underpins our National Adoption Standards. In addition, Clause (1)(4)(a) of the Bill requires adoption agencies, and courts, to have regard to,the child's ascertainable wishes and feelings regarding the decision",when coming to any decision relating to the adoption of a child. That is an overarching principle. The procedures that adoption agencies, and the courts, will operate for determining the child's wishes and feelings will vary depending on the age and understanding of the child, the stage of the adoption process, and the circumstances of the case. These procedures will he set out for adoption agencies in regulations and guidance, and for courts in court rules and guidance.
As I explained to the Committee previously, these regulations and guidances are not available now, as we intend to consult extensively. We have already made clear that there will be explicit obligations on adoption agencies to consult the child at specified stages of the adoption process, to record their views, to ensure that their views are considered by the decision making process—for example by adoption panels—and, where they are not acted upon, to record the reasons why not.
The detail of the regulations will be subject to consultation but, as a matter of good practice, we would expect the views of the child on any suggested match with prospective adopters to be sought and taken into account in the light of the child's age and understanding. This should take place before any match between a child and a set of prospective adopters is considered by an adoption agency adoption panel and before any decision is made. We would then expect there to be several meetings between the child and the prospective adopters before the child goes to live with them. This important part of the introduction process will ensure that the proposed placement works for both the child and the prospective adopters.
The key point in relation to the procedures operated by adoption agencies is that it is the job of the child's social workers to ensure that the child's voice is heard throughout the adoption process. I referred earlier to our National Adoption Standards which make clear that every child will have his or her wishes and feelings listened to, recorded and taken into account. Professional social workers have the skills and expertise needed to ensure that their wishes and feelings are listened to and attended to.
The noble Lord, Lord Campbell of Alloway, who is not in his place, also raised a number of other questions, to which I refer briefly. He takes us back to the question of how we ensure that local authorities do 211GC the right job. I do not want to go over all the ground that we have discussed previously, but I believe that the Government are absolutely clear that we want adoption services to work; we want to ensure that the local authorities perform effectively; that we shall performance manage; but that we have concerns about the nature of the proposals that the noble Lord put forward. If one puts on the statute the kind of duty that he wishes to see local authorities given, one runs the risk of saying not only are adoption services important but that they are of overriding importance; of more importance than many of the other provisions and functions of social services.
The final point raised by the noble Lord concerns Section 7 statutory guidance. All I would say on that is that the 1996 case has since been followed in a number of other cases. There has been ample opportunity to overturn decisions or for the House of Lords to consider this and they have not done so. As far as local authorities are concerned, they know that Section 7 guidance is tough guidance. That is why I often come under pressure in your Lordships' House to issue more statutory guidance to local authorities.
In conclusion, I believe that this is an important point and I recognise the importance of these regulations. We will do as much as we can to flesh out some of the detail, though that will not be entirely easy because of the process we set ourselves in relation to working on this over the autumn and the consultation process that we have set. However, I recognise the force of the argument put forward by the noble Earl in relation to the status of the regulations, and I shall come back to noble Lords on Report on that matter.
§ Earl Howe
I am extremely grateful to the Minister for his encouraging response. I realise that it is not an absolute commitment, but I appreciate what he has said. If I had to point to a clause in the Bill with overriding practical application for the way that the Act, as it will become, will work, it is this clause. Clearly, Clause 1 sets the framework and we realise that. Clause 44 and the regulations that will fall under it are at the heart of the Bill.
The Deputy Chairman of Committees
A Division has been called. The Committee stands adjourned until 6.35 p.m.
§ [The Sitting was suspended for a Division in the House from 6.25 to 6.35 p.m.]
§ Earl Howe
The Minister made the point that to define "additional criteria" on the face of the Bill and thereby to enlarge Clause 44 would create an element of inflexibility. I take that point but at the same time, there are abiding and enduring principles and characteristics which, for the foreseeable future, should govern the approval of all adoptive parents. I listed some of them in my earlier remarks; they are non-contentious.
We ask ourselves in this context what we should understand by the terms "stability and permanence". The noble Lord, Lord Northbourne, in the next group 212GC of amendments, will attempt to get rather closer to those concepts and I do not want to anticipate his remarks. However, he seems to have made a good stab at this problem.
The Minister referred to recent case law, which should only ever be a starting point in this context. When we are reforming the laws on adoption, as we are doing—this is a basic point to make—it is of course for Parliament to decide what constitutes an acceptable measure of stability and an acceptable family unit. We look at these matters afresh, which is our function. The Minister referred also to the assessment that is done by social workers of the degree of stability that a couple evinces.
The Minister made it sound more of a scientific process than it is in fact. There is very little science about it. It may be a tough process but it is not and cannot be a wholly reliable predictor of permanence because in the end it is a matter of subjective judgment. I do not want to dwell too much longer on this amendment, however, other than to reiterate my thanks to the Minister for his positive undertaking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 70ZA not moved.]
§ Lord Northbourne
moved Amendment No. 70ZB:Page 27, line 39, at end insert—() In deciding the stability and permanence of a couple under subsection (2), the regulations shall require an adoption agency to have regard to (inter alia) the following factors—The noble Lord said: I rise to move Amendment No. 70ZB and to speak to Amendments Nos. 123 and 122A, 122B and 122C. I brought this group together because they are all probing amendments relating to the Government's proposal for adoption by unmarried couples. The Government's proposal for adoption by unmarried couples is a major change in the law and we have a responsibility to look carefully at the implications.
- (a) whether the couple have lived in the same home together as a couple for at least the previous five years,
- (b) whether they are prepared to make a written and public commitment that they will together make a home for the child until he reaches the age of 18,
- (c) whether they are prepared to make a written and public commitment to act jointly to promote the welfare and best interests of the child, and
- (d) whether they are prepared to enter into a binding and enforceable contract with one another and with the child that they will on a basis set out in the agreement jointly provide financial security for the child during its minority."
We are probably all at one in accepting that Clause 1, the primary welfare of the child, is absolutely right. I suspect also that Members of the Committee will agree that the most important needs of all children, but especially of children seeking adoption, are security, stability and enduring love. The Government indeed accept this in Clause 139(4)(b).
We also know, alas, that the statistics show that couples who have made the long-term commitment to marriage are, on average, more likely than those who 213GC have not, to be able to offer a child that stability. I give only one example, as Members of the Committee are no doubt aware of the statistics. Within five years of the birth of a child, on average 8 per cent of married couples will have split up and 52 per cent of cohabiting couples will have split up. Those figures show two things: first, that marriage is by no means a guarantee of stability; and, secondly, that the average relating to cohabiting couples does not mean that there are not cohabiting couples who have long and enduring stable relationships.
There are two ways of addressing this problem. The first, which I think will be advanced very soon, is to allow only married couples to adopt or, to put it another way, not to allow unmarried couples to adopt and to allow only married couples or single persons to adopt. The second alternative way is to apply stringent criteria to all couples in order to ensure, as far as possible, that only couples who are likely to offer stability are acceptable as adopters. Manifestly that is the route that the Government would like to take.
It is worth saying in passing that if we accept the 8 per cent:52 per cent ratio and the principle of applying stringent criteria, the likelihood is that there will he about six times more married couples approved for adoption than unmarried couples. I raise in passing the possibility that that situation might be challenged by the equal opportunities lobby, the human rights lobby and all sorts of other lobbies. That should be taken into consideration when we are considering this question.
Before the Committee makes a decision about which route we should follow, we must know more—
§ Lord Northbourne
I am sorry. If we accept the two alternative ways in which this problem can be addressed, it is fundamentally essential that the Committee knows more about the Government's decisions and understands more clearly what their intentions are before we are asked to make a decision. It is with the aim of finding out more that I have tabled this group of amendments.
Amendment No. 70ZB and Amendment No. 123 suggest criteria that should normally be the minimum acceptable criteria before a couple can be accepted as adopters. These amendments propose three things. The first is that there should be a track record, to which the Minister has already referred. I have suggested a track record of five years stable co-habitation. The second is the willingness of the couple to make a clear, long-term public commitment to do their best to offer the adopted child the environment, stability and love that it needs. The third is a more practical one: to ensure that if the couple break up, the child is not exposed to the kind of drawn-out haggling over money that so often dogs divorce cases today and which is emotionally disastrous for the child.
Amendment No. 122A addresses the question of what constitutes a couple by asking what constitutes a partner. In the Bill the term "couple" is defined as a 214GC relationship of partners. This is a crucial question and in my view it is not clearly answered in the Bill. I give just one example. Across the country many young and old people who are friends live together not in a sexual partnership but to avoid loneliness and to share living costs. They may be brothers and sisters, two sisters or a whole range of others, for example, young unmarried people. Are these people included as couples? They may be committed, have been living together for a long time and have economic stability. We need to know. Or, is some element of sexual partnership imperative in the definition of a couple?
Amendment No. 122B attempts to define a family for the purposes of the Bill. The Government are fond of saying that today families come in all shapes and sizes. They are certainly correct in saying that, but there is surely a need to define where the ultimate boundary of a family lies for the purposes of the Bill.
Amendment No. 122C seeks to delete subsections (5) and (6) of Clause 139. Why should a brother and sister from an excellent home not be satisfactory adoptive parents? Why should grandparents, or uncles, who happen not to be married but to be cohabiting, not be eligible to adopt as they would be if they were married? These seem to be relevant questions worth asking. I beg to move.
§ 6.45 p.m.
§ Lord Clement-Jones
I want to speak to this amendment, which in the view of these Benches is certainly preferable to the next set of amendments we shall debate, or the amendments we shall debate probably next week. It is an attempt to establish some fairly stringent criteria by which the stability and permanence of a couple: are to be judged.
In his previous response the Minister helpfully set out the test which needs to be applied. I believe that the measures we are discussing go beyond the application of any sensible test. As I understand it, the test that the Minister described should not over fetter an agency in the exercise of its duties, in the light of the fact that it does have to exercise discretion.
It seems to me that the measures which the noble Lord, Lord Northbourne, proposes are fairly prescriptive. I realise that I sound like a government Minister, but those measures are extremely prescriptive. I hasten to add that I do not often take that line. However, they would put the adoption agency in something of a strait-jacket when assessing suitability, stability, permanence and so forth. They constitute a starting point for debate but no more than that. The noble Lord proposes that a couple who wish to adopt should have lived together in the same home for five years and should make a written and public commitment. What happens if any of those conditions are not fulfilled? Such conditions limit the possibilities open to adoption agencies.
I understand entirely where the noble Lord, Lord Northbourne, is coming from. As I say, I much appreciate the fact that he contemplates unmarried couples and gay couples being able to adopt. Therefore, if the price, as it were, of accepting that is 215GC that we have some sensible criteria in the Bill, I do not object to that. However, I believe that the measures he proposes are too rigid and would cause problems in practice.
§ Baroness Gibson of Market Rasen
I briefly support some of the points that the noble Lord, Lord Clement-Jones, has made. I, too, have a great deal of sympathy with the reasoning behind the measures we are discussing. However, when I first read them I was very pleased that they had not been applied to birth parents as I do not believe that I would necessarily have been able to sign up to all of them when I gave birth to my daughter. Certainly, the first point would not have applied to me as I gave birth to my daughter 21 months after I was married. My husband and I had not been living together for five years. I believe that possibly—
§ Lord Northbourne
Perhaps I may make the point that the noble Baroness, Lady Gibson of Market Rasen, was not an adoptive parent.
§ Baroness Gibson of Market Rasen
No, I was not, but I do have an adopted grandson, so I am aware of the difficulties that adoptive parents face. My worry is that if these conditions are put before adoptive parents they may be off-putting for them. They may put off people who would be good adoptive parents.
I am particularly bothered by paragraphs (b) and (c). When people want to adopt children, they are eager to adopt and very vulnerable. At that point in their lives, they may well say, "Yes, I can commit myself to (b) and (c)", but then, for all sorts of reasons, find themselves unable to comply with their agreement.
Paragraph (d) also bothers me. It says that the couple,will on a basis set out in the agreement jointly provide financial security".What happens if one person in the couple finds herself disabled or unemployed and unable to get a job, and therefore unable to stick to her commitment?
Although I see the aim of the amendment, I cannot agree with the four paragraphs. I reiterate that the point which bothers me most is the possibility that this rather rigid criteria could put off couples who would be very good adoptive parents.
§ Lord Northbourne
It might be helpful if I replied to the debate. There is flexibility on detail, and there is the possibility of amending and improving these proposals. However, the point of the proposals is precisely to make the point that we have to draw a line somewhere. The Government have drawn the line by saying that adoption societies will have complete freedom to decide this issue; at least I think that that is what they are proposing. I am saying that if we as Parliament are passing this law, we have a certain responsibility to understand what it is that we are saying, and to draw a bottom line as to who should be excluded from being adoptive parents. If adoptive parents are not prepared to make a commitment to do 216GC their best to look after their child until it is 18, then they should not be adoptive parents. That is my opinion.
§ Baroness Thomas of Walliswood
I have some difficulty with this group of amendments. Apart from anything else, they are not internally consistent. I agree that Amendment No. 70ZB is very fierce in its demands. One cannot seriously make that type of binding, enforceable, public and written commitment. One can make such a commitment, but life itself teaches us—there is a Russian saying to this effect—that although one may have the best intention in the world of staying married to one's partners for life, or for 18 years, or for whatever length of time, one can nevertheless run on to the rocks and it will not happen.
I prefer what must have been the first drafting of the amendment, which is a declaration of the couple's "firm intention" to continue to live together. That is also a far more easily accessible concept. I do not think that a social worker could make a judgment on whether they mean to live together for 18 years, whereas she might be able to make an assessment that they had a "true intention" to do so. That is more realistic.
Turning to the other amendments, I am touched by the definition of a family used by the noble Lord, Lord Northbourne. In the context of this Bill, that is an extremely difficult concept to define. He has made a pretty good stab at it, although whether it will be acceptable to the Government is another matter.
In that context, however, there seems to be some inconsistency between Amendment No. 122A—which says that a couple is two people living as "sexual" partners in an enduring family relationship—and the noble Lord's omission, because he does not agree with it, of subsection (5) of Clause 139. That provision makes clear the Government's intention that,Subsection (4)(b) does not include two people one of whom is the other's parent, grandparent, sister, brother",and so on. The noble Lord deliberately introduced the concept that those sorts of people should be able to be considered as a suitable family. He may be able to explain this perfectly clearly, but I see a slight internal contradiction in that sequence of amendments.
§ Lord Northbourne
I introduced the word "sexual" there in the hope that the Government would say that it was not that. It was merely to tease out what the Government do believe.
§ Baroness Thomas of Walliswood
It was beyond my abilities to predict that that was the noble Lord's intention.
§ Baroness Howarth of Breckland
I should like to make three brief points, the first of which concerns the issue of statistics. I have heard several times today the quotation of how many married couples stay together as against those who cohabit. We do not have statistics on how many families stay together with an adopted child as part of that family, although that is a key element. Of course there are adoption breakdowns. However, many families do stay together once they 217GC have children in their midst. Some spurious statistics are going round. We need to examine them and be clear about them.
Secondly, people who adopt have to make a commitment. They have to go to court when that commitment is made. They have to decide and sign to the effect that they are going to support, maintain and give emotional support to that child. So, as the Minister said, the very act of adoption involves a very rigorous process. Nevertheless, some of that process has been criticised. We therefore seem to be saying, at one and the same time, that the process has to be rigorous, but that it is already far too rigorous. We need to tease out that issue.
I think, thirdly, that the real issue is about sex and people's feelings about sexual relationships. We should remember that there are married couples who may not have said that they are adopting because they have no sexual relationship for one reason or another. As a family practitioner, I have worked subsequently with such couples. There are also couples of other constituencies who make very good parents. However, we shall address that issue in a future debate. I do not think that we should deceive ourselves. It is not really about permanence; it is about sex.
§ 7 p.m.
§ Lord Hunt of Kings Heath
This has been a very useful debate. I start by saying to the noble Lord, Lord Northbourne, that it is not the Government's intention simply to let adoption agencies get on with it. That is the whole purpose of Clause 44. That is why we shall develop regulations. That is also why I said that I shall seriously consider the suggestion of the noble Earl, Lord Howe, that the regulations should be dealt with under the affirmative procedure. That is also why, in the next few months, there will be a very considered piece of work to ensure that we are as clear as we possibly can be in informing those who have to do the work about what is expected of them.
The debate has been useful. I know that the noble Lord, Lord Northbourne, has tabled these amendments as probing amendments. However, in so doing, he has identified for us the problems of trying to be too precise. We come back to this dilemma as to how much we can wisely put in statute and how much we should wisely leave to practitioners' discretion. There is a genuine debate to be had, and the Government are very keen to lead that debate and to have discussions with those involved. I have no doubt that we will all want to address the issue at Report stage. Nevertheless, analysing the amendments is very instructive in relation to some of the problems that arise when one tries to be too specific.
I promise not to hold the remarks of the noble Lord, Lord Clement-Jones, against him. He has put aside the practice of at least five years to my certain knowledge in arguing that point. However, it was surely a very substantive point.
I turn to the specific amendment. Amendment No. 70ZB has the effect that regulations made under subsection (2) of that clause must require the adoption 218GC agency, when considering stability and permanence of the couple's relationship, to have regard, among other factors, to the factors listed in paragraphs (a) to (d). Paragraph (a) addresses the issue of the period of time during which the couple have lived in the same home together in order to be approved as prospective adopters. This is an issue on which the Government are keen to hear a wide range of views.
Under the current arrangements for assessing prospective adopters, the adoption agency would expect the relationship between the couple to be of sufficiently long standing, and three years is a typical benchmark presently used by adoption agencies. If a couple had been together only for a matter of months, it is unlikely that the agency would be willing to assess them, but we are keen to hear further views on this issue.
Paragraphs (b) and (c) of Amendment No. 70ZB are similar to Amendment No. 70ZA of the noble Lord, Lord Campbell of Alloway. They enable regulations to be made requiring the agency to have regard to whether the prospective adopters are prepared to make a written and public commitment that they will together make a home for the child until he reaches the age of 18. Paragraph (c) provides a specific regulation-making power requiring the agency to have regard to whether the prospective adopters are prepared to make a written and public commitment to act jointly to promote the welfare and best interests of the child.
The first point I would make to the noble Lord, Lord Northbourne, on that is that the adopter assessment process is designed to ensure that only people who are able to provide a stable and secure home for a child are approved as prospective adopters. This thorough assessment process carried out by all adoption agencies will look at all aspects of the commitment between the prospective adopters as well as their commitment to the child. Our powers in Clause 44 enable us to make regulations explicitly to require adoption agencies to consider any legal commitments between the prospective adopters, should that be considered appropriate following consultation. Only prospective adopters who can demonstrate that they have a stable and lasting relationship will be approved to adopt jointly.
I should also reinforce the point I made in the last group of amendments. We must ensure that we comment on the commitment of prospective adopters only in the context of their suitability to adopt jointly. What I do not want to do is pre-empt the outcome of the work that Government are carrying out on civil partnerships more generally; that goes much wider than our current discussions.
Although we anticipate the debate on married couples to which we shall return in a week's time, I am aware of the statistics which show that unmarried couples are more likely to part than married couples. That is why we have made it absolutely clear that in order to protect the adopted child the first stage will be for the assessment process thoroughly to examine the stability of the prospective adopters' relationship, 219GC whether they are married or unmarried, to minimise the chances of placing a child in a home which subsequently breaks up.
The second point is that should the House vote in favour of enabling unmarried couples to apply to adopt jointly, we would be interested in the legal relationship between the child and each of his adoptive parents and not in the formal and legal relationship between the adoptive parents themselves. Even if the adoptive parents split up, the child will still have a legal relationship with each of the adopters and the protection that goes with it, and the provisions on financial relief in Schedule 1 to the Children Act 1989, which provide for courts to order maintenance or lump sum payments by parents, will apply.
If the noble Lord's concerns go wider than that, they will be best addressed within the Government's more fundamental review of the adopter assessment process, or as part of our subsequent consultations on the regulations to be made under Clause 44.
I turn to Amendments Nos. 122B and 123. Amendment No. 122B seeks to insert a definition of "family" into Clause 139, which provides general interpretation. As the noble Lord, Lord Northbourne, said, the definition he puts forward provides that a family means a group of one or more adults who have agreed to live together and support each other, together with any children concerned. It also provides that an enduring family relationship should be interpreted accordingly.
The definition means that more than two adults living together could be embraced within that definition, perhaps in some kind of commune. However, Clause 48 of the Bill is clear in providing that an application for an adoption order may be made only by a couple or one person.
Similarly, Amendment No. 123 seeks to insert a definition of an "enduring family relationship" into Clause 139. The amendment provides that an enduring family relationship means a relationship in which the couple live together in the same house and have done so for at least the previous five years. It also provides that an "enduring family relationship" means that the partners have made and are willing to make a public and written declaration of their firm intention to continue to live in the relationship until separated by the death of one partner or else until the child attains the age of 18.
I know that the definitions inserted by the noble Lord are partly probing and perhaps reflect the concern that the term "enduring family relationship" has not been used in previous legislation to define the relationship of an unmarried couple. This can in fact be helpful, as it ensures that the definition of an unmarried couple which would apply for the purposes solely of this Bill does not encroach or pre-empt the wider work on civil partnerships being carried out across Government.
I turn to the issue raised in relation to the definition of a couple and Amendment No. 122A, which inserts the term "sexual" before the term "partners" in the 220GC definition of a couple in subsection (4)(b) of Clause 139. Again, I understand that the noble Lord, Lord Northbourne, is asking me to issue a denial here. The existence of a sexual relationship is not necessary for a couple to provide a stable and loving home for a child. Where no sexual relationship exists and there are no unresolved issues for the couple around this, it would have no bearing on the child.
Amendment No. 123C seeks to remove subsections (5) and (6) of Clause 139. Subsection (5) sets out a list of family members who are not included in the definition of a couple in subsection (4)(b). Subsection (6) provides that the reference to "relationship" in subsection (5) includes the relationships of the full or half blood. Where a person is adopted, they include relationships of the full or half blood with the adopted person's birth family. They also include the relationship of an adoptive parent with his adopted child or with his former adopted child, where that child has subsequently been re-adopted.
A key point about the definition of a "couple" that we have included in subsection (4) of Clause 139 is that it seeks to ensure that the position on eligibility to apply to adopt jointly for unmarried couples is as consistent as possible with the position of those who could marry and subsequently adopt as a married couple. The fact that a same-sex couple is unable to marry is overlooked, but other restrictions on marriage within families are taken into account.
Subsection (5) of Clause 139 makes clear that the definition of a couple in subsection (4) does not include a couple where one person is the other's parent, grandparent, sister, brother, aunt or uncle. These groups are unable to marry under the provisions of the Marriage Act. It is helpful to bear in mind that such relationships may not be stable and lifelong relationships that would provide a suitable family environment in which to bring up a child.
Perhaps I may give the Committee an example. It would be very difficult for two sisters to demonstrate that they have an enduring family relationship and are able to offer a secure environment for a child throughout his childhood. One or both sisters could at any stage meet a partner, and the nature of the sisters' relationship would immediately change. The effect on the child of such a situation could be very detrimental. That is why we have chosen to define "a couple" in this way, and to put such exclusions in the Bill.
I hope the explanations that I have given to the noble Lord, Lord Northbourne, are helpful. I believe that the debate has been extremely helpful to us in teasing out some of the tensions between trying to get the definitions right and as precise as possible and the problem of not allowing enough flexibility at the local level. This is the stuff of the consultation process that we need to embark upon over the next few months.
§ Lord Northbourne
I am grateful to the noble Lord. I am sure that Members of the Committee will agree that we have managed to get a great deal on the record as a result of this amendment. I do not believe that the time has been entirely wasted. I do not agree with the 221GC noble Lord on the last point that he mentioned; namely, the question of members of the family. Indeed, I should like to take the matter further, though I may not have understood correctly what the Minister said.
As far as concerns consultation, it is the good old story that we hear every time that we are asked to pass a Bi11 in this place: we are asked to sign a blank cheque. I do not like that. I want to get as much information and as much commitment onto the statute book as I possibly can before we agree what is a very radical change—adoption by couples. Adoption by couples is totally different from adoption by an individual in terms of the stability of the child. Equally, the fact that each parent has a financial relationship with the child is completely different from the situation in which the parents have a financial relationship to one another, as well as to the child. The difficulty is that the child is hurt just as much when the couple breaks up. However, if he has just one adoptive parent, that is the only parent to whom he is attached—
§ Lord Hunt of Kings Heath
I am grateful to the noble Lord for giving way. We are now anticipating next week's debate. As I said earlier, if a single person being considered as an adoptive parent is currently in a relationship, that relationship will be scrutinised and assessed by the adoption agency. The argument for extending the possibility of unmarried couples adopting is to provide greater stability and security for the child in those circumstances.
§ Lord Northbourne
I think I understand the Minister's point, but I do not believe that I agree. For example, if you adopt me, you are my dad and your partner is not my mum; but if both of you adopt me, then you are my dad and my mum. If both start splitting up, that is chaotic and destructive. I have said enough. I shall be returning to some of these points. However, our debate has been extremely helpful. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 44 agreed to.
§ [Amendment No. 70ZC not moved.]
§ Clause 45 agreed to.
§ Clause 46 [Conditions for making adoption orders]:
§ Earl Howe
moved Amendment No. 70A:Page 29, line 15, leave out subsection (5).The noble Earl said: In moving Amendment No. 70A, I shall speak also to Amendment No. 70B. These amendments relate to parental rights at the time when an adoption order is made. The issues underlying them are a little complicated, but I shall do my best to explain them simply.
The Bill makes clear in Clause 19 that parental consent to placement and parental consent to adoption are quite separate decisions. They rest, or could rest, upon different considerations. A parent may consent to a placement on the basis that it will 222GC offer long-term security for the child, and so obviate the need for further foster placements. However, he or she may wish to reserve his position on an adoption order. The adoption order is very final. It extinguishes the parents' parental rights and responsibilities and places the birth mother and father in the position of "former parents". Because the effects of an adoption order are so profound, I believe there is one important right of parents that needs to be protected in such circumstances; that is the right to be involved in the proceedings which will terminate those rights.
Unfortunately, there are situations envisaged by the Bill in which parents cannot count on being involved in those proceedings. Clause 46(3) holds that a parent who has given advance consent to the making of an adoption order may not subsequently oppose an adoption application without leave of the court. This raises some important legal issues. Advance consent given under Clause 19 is not subject to judicial scrutiny when it is given. It is a purely administrative process. To exclude parents who have given advance consent to adoption from taking part in subsequent adoption proceedings seems contrary to natural justice and may be contrary to the right to a fair trial and to family life under Articles 6 and 8 of the European convention.
Equally, Clause 46(5) holds that a parent who has consented to placement for adoption, or whose child is the subject of a placement order, may not oppose the making of an adoption order without leave of the court. As I have just indicated, the issues which arise when consent is given for placement (and when a placement order is made) are not the same as those which obtain when an adoption order is made. Consent under Clause 18 is, again, a non-judicial process. I am troubled by the thought that such parents may not be allowed to participate in the proceedings for an adoption order. We need to bear in mind what Clause 1 says about the considerations that the court must bear in mind when taking a decision. For example, Clause 1(4)(c) refers to,the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person".Clause 1(4)(f) refers to,the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant",and so on.
These are matters which the birth parents should have the right to pronounce upon. However, unless I have missed something, the Bill says that birth parents, who have previously given consent to a placement under a non-judicial process, should thereby be denied any standing in the decision-making process leading to the final adoption order unless the court holds otherwise.
Under Clause 1(6), the court is mandated to consider the range of orders under the Adoption and Children Bill and the Children Act 1989 when it is deciding an application to adopt. One of these options 223GC is guardianship orders, which effectively provide a middle course between adoption and residence orders. As Clause 46 stands, parents who have previously given consent to placement or who have given advance consent to adoption, will have no automatic standing in the decision-making process which examines the full range of options for the child.
In summary, birth parents will, in certain circumstances, be excluded from the exercise which the court is obliged to carry out when it considers making an adoption order. The fact that the parents may have been party to the decision when advance consent was given—and I emphasise again in a non-judicial process— or when a placement order was made some time in the past should not affect the parents' rights to be involved in the most far-reaching decisions about their children. Those are decisions on whether their legal relationship with their children should be severed and on who will assume that legal role.
It is quite possible to envisage a situation where placement orders may have been made at a time when the adoptive parents have not been chosen by the adoption agency and the birth parents will have no general knowledge of who will take on the role which they lose on the making of the adoption order. I look forward to hearing what the Minister has to say. I beg to move.
§ 7.15 p.m.
§ Baroness Andrews
These amendments moved by the noble Earl seek to make a significant change to the provisions in Clause 46, which cover the conditions under which a court may make an adoption order as a result of a placement for adoption. I shall not recap entirely the reasons why we have made the decisions we have as regards placement for consent as opposed to placement by order. We have the two routes with their birth parents giving consent to placement and, when consent is absent, the local authority securing a placement order. We have a history of that as it has been mediated over the past decade under discussion with the various agencies with the aim of producing a better and fairer adoption process and redistributing the responsibilities.
Our central motivation was to ensure that the birth parents, far from being treated in an arbitrary fashion, should have every opportunity as early in the process as possible to have their wishes, needs and prospects considered when the child was being placed for adoption, with court involvement only necessary in the other circumstances. Our aim in dealing with much of the question of consent at the placement stage was designed to reduce the uncertainty and the contest in the final adoption stage. We have been advised that the current system leaves much to be resolved at the final stage, so we are looking for the four benefits that I have mentioned previously.
The first is to provide greater certainty and stability for children. The second is to minimise the uncertainty for prospective adopters, which, at the moment, means that they face the risk of a contested final adoption 224GC hearing. Once the issues have been resolved around placements, there are limits to the circumstances in which the final adoption order can be opposed, as the noble Earl has said. The third is to reduce the extent to which the birth families are faced with a fait accompli at the final adoption hearing, as the child has, by that time, been placed for a considerable period with the prospective adopters. The fourth is that we are looking to minimise the opportunities for rehearsing and revisiting many of the circumstances which would have made that placement successful without the threat of it being reversed for potentially frivolous reasons at a later stage.
The provisions in Clause 46(4) set out what is to happen at the end of the process at the final adoption order hearing. They provide that the court can make an adoption order as a result of placement with consent under Clause 18, or a placement under a placement order, provided that no parent or guardian of the child opposes the making of that order.
As currently drafted, subsection (5) provides that the parents may oppose the making of the final order in these cases only if they have the leave of the court. Subsection (7) sets out that the court is to grant leave only if there has been a significant change of circumstances since either parental consent was given or the placement order was made. The effect of the noble Earl's amendments would be to remove the leave requirement in these agency cases. As now, a parent would be entirely free to contest the final adoption order, regardless of whether they had earlier given consent to placement, or a placement order had been made.
That would greatly increase the prospect of contested final adoption hearings. It would, at a stroke, remove what we are very serious about doing—the main benefit for placed children and prospective adopters—of removing that fundamental uncertainty that the birth parents are going to turn around and say, "We have changed our minds. We have gone through all this process, we have placed the child with consent, but now we have changed our minds". We feel that it must be important to be able to prove that there has been a significant change of circumstances in those situations that justify that change.
As I explained earlier, the current legal framework has been criticised because it leaves too much to he resolved of that order, and it also brings an additional sense of insecurity. By bringing forward the question of consent earlier in the process, we are creating opportunities at each stage for the birth parents to establish the implications of their decision, without threatening the adoptive parents at the very end of the stage with that being reversed on a whim, or simply for frivolous reasons.
The noble Earl, Lord Howe, raised the question of the judicial process. He suggested it was not compatible with the ECHR. We believe the Bill is certainly compatible with the ECHR and Article 6. In the case of placement with consent through adoption 225GC agencies, the parents' consent will have to have been dealt with at the time of placement. If they do not consent, the only route open to them is to seek a placement order, and then there would be bound to be a court hearing. It is on those grounds that we believe the question of compatibility is resolved.
The noble Earl, Lord Howe, also raised the question of how the court will get the birth parents' views when birth parents will have given consent to placement in advance. The court will still be able to obtain their views, either through the adoption agency report to the court—so there will be no question that by giving advance consent they will lose any of their ability or their rights to put their views—or they can through the agency of a CAFCASS officer report to a court even if the parents themselves cannot oppose the adoption order. There will be agencies for their views, whatever they are, to be made known to the courts.
If the noble Earl, Lord Howe, would prefer, I would be happy to write to him about those two specific points to make them absolutely clear. They are important in terms of process and those two particular instances.
I return to the fact that the door is by no means shut because the essential point is that parents can contest the final adoption order. The noble Earl, Lord Howe, is absolutely right to say that there is a difference between a placement order and an adoption order. It is because of that importance, and because it is difficult to take this particular aspect of the process out of context from everything that has gone before, that parents need to demonstrate there has been the kind of change of circumstance that could conceivably justify reopening the decisions which have been assumed in good faith to have been taken earlier on the basis of full knowledge. That way, the provisions will give a much greater sense of security and stability for the adoptive placement in advance of the final adoption order being given.
226GC Given that the amendments of the noble Earl, Lord Howe, will remove that gain, I hope that he will be prepared to reconsider them.
§ Earl Howe
I am grateful to the Minister for that reply, which I find partially reassuring. I am not prepared to say that I find it wholly reassuring. If the Minister would kindly write to me on the matters I raised, I should be grateful, and I will of course read carefully what she has said. I am very much in favour of the central premise of this part of the Bill, which is to remove as much uncertainty as possible from the process at as early a stage as possible and thereby create stability and certainty for all parties.
However, I am very uneasy at the thought that where birth parents have a legitimate point of view to express at the final stage when their relationship with their own child will be severed they cannot, for whatever reason, express that view directly. I think that that is potentially a very serious state of affairs. The noble Baroness said there would be mechanisms for the birth parents to be able to make their views known in an indirect fashion, and that I appreciate. I shall have to think very carefully about whether I regard that as adequate in the circumstances. It is perhaps a matter for reflection between now and Report stage on my part as much as on the part of the Government. In the meantime, in thanking the Minister once again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 70B not moved.]
Clause 46 agreed to.
Clause 47 agreed to.
§ Lord Hunt of Kings Heath
This would be a convenient moment to adjourn until Thursday next at 4 p.m.
§ The Deputy Chairman (Lord Elton)
The Committee stands adjourned until Thursday next at 4 p.m.
The Committee adjourned at twenty-nine minutes before eight o'clock.