§ [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
§ Clause 13 [Information concerning adoption]:
§ Baroness Thomas of Walliswoodmoved Amendment No. 46:
Page 10, line 32, at end insert "and his department or any other government agency designated by him shall produce an annual report to Parliament detailing such statistics as are deemed relevant and reviewing progress made on the previous annual reportThe noble Baroness said: I rise to move Amendment No. 46 in the name of my noble friend Lady Barker and myself. The amendment is to subsection (5) of Clause 13, which is concerned with ensuring that statistical and other information can be obtained by the Minister from the adoption agencies themselves and the Magistrates', County and High Court officials. Subsection (5) says that the Minister may publish abstracts of this information. Our amendment adds a requirement for the department or some other agency to produce an annual report to Parliament containing relevant statistics and reviewing progress since the previous year, which, quite plainly, enlarges upon the original requirement.We have put down this simple amendment for four reasons. First, the Government are committed to achieve a considerable increase in the numbers adopted in any year. Parliament and the public are entitled to know how much progress is being made. Secondly, there needs to be a greater understanding of the new processes of adoption and how they are bedding down. Thirdly, there is the general principle that transparency, openness and all these wonderful things aid enormously in a practical way in that they tend to prevent people making the same mistake twice. Finally, we want to ensure that this reporting back actually occurs, and we believe that this is best achieved by putting the Government's duty in respect of the matter of reporting to Parliament on the face of the Bill. I beg to move.
§ Baroness AndrewsThe Government have much sympathy with the intention behind the amendment. We are all for openness, we are all for statistics being available so that progress can be monitored, and we are all for government being accountable. Under Clause 13 we already have the requirement for adoption agencies and courts to give the Minister statistical and other general information relating to adoption. The appropriate Minister can use that 120GC information for statistical and other general purposes, such as for performance management. Subsection (5) enables the appropriate Minister to publish abstracts of that information.
The intention of the amendment is, quite understandably, to enlarge the clause, as the noble Baroness said, to ensure that there is transparency and accountability, that performance management structures work and that the intention of the Bill comes to fruition.
I would like to refer to what we have in terms of the four points that she made. In the Children Act report itself, which is an annual report, we have a section on adoption which brings together key analysis and information. It has a section relating to adoption statistics. The report for 2000 is currently available. The report for 2001 is just about to come out and includes, for example, information about the numbers and ages of children adopted from care, the time scales and the length of time taken to find adoptive placements. It also includes key judgments and messages from the inspections of councils' adoption services. So we have an annual report to Parliament which can also be used by practitioners and by people involved across the field in monitoring progress of that kind.
It is our intention to continue to provide that information and, to pick up on what the noble Baroness said, certainly to make sure that the next annual report—the one after the Bill becomes an Act in 2004—will reflect the changes and the improvements that will have been made as a result of the Act. We are absolutely committed to that.
One of the reasons for saying that the Children Act is a good vehicle is because it enables us to put adoption into the context of children's services as a whole and, alongside the protection of children—children in care—we can see what is being achieved through adoption. I commend that to the noble Baroness.
In addition, there is a range of dynamic statistics available—which, if the noble Baroness so requires, I will certainly write to her about—which describe these issues. They are available to Parliament, on line, in the form of different reports and inspection agreements. In the light of the debate today I can assure the noble Baroness that the next Children Act report will take into account the points that she raised.
§ Baroness BarkerOn behalf of my noble friend, I thank the Minister for her answer. The reason for asking for this report in the amendment is that it has become clear throughout our debates so far that we are hampered by a lack of information about the current system of adoption. Furthermore, government policy making has been hampered to a large extent by a lack of information. For example, we talked the other day about the lack of a tracking system. As we have already noted in our debates, many of the children that we are talking about end up being a part of the statistics of a plethora of different services.
121GC The intention behind the amendment is to ensure that adoption in its widest sense had a locus for one coherent analysis. My fear is that given the diffusion of services at local level—not only social services but also health and education services—somewhere along the line what is happening in the adoption processes will be lost. Were we at a different stage of the Bill we might pursue this issue. But we are not and we will of course withdraw the amendment.
However, I urge the noble Baroness to think again about the need to look at adoption in its fullest sense and in a coherent fashion—not in a way which is distinct and apart from other services, but with a very specific analysis. As we have noted time and time again in our debates, many things happen to children which, although not unique to adopted children, happen more to adopted children than to others. We are in danger of losing that somewhere along the line.
§ Lord Campbell of AllowayI will be very brief. I am not quite sure about this amendment because the issue seems to be whether there should be a mandatory obligation on the Minister to produce an annual report to Parliament. There is no issue about anything that any noble Lord has said so far. I agree with it all. However, I cannot for the life of me see why, looking at subsections (4) and (5), it is necessary to put a mandatory obligation on the Minister to produce a report to Parliament. He can do it within his own remit and no doubt will do what he wishes.
§ Baroness DavidPerhaps I may ask a question which I put down as a Question for a Written Answer. I do not know whether it would come into a report of this kind. How many adopters have been rejected in each of the past five years? I hope to receive an answer from the official quarters quite soon, but I wondered whether it was the kind of thing that would be reported, or whether it was reported in the Children Act report.
§ Baroness AndrewsI am grateful for the intervention of the noble Lord, Lord Campbell of Alloway, and the point is well taken. In relation to the question about information relating to adopters who are rejected, we do not have that information at present and, without taking further advice, I am unable to answer it. I see that there would be difficulties under any circumstances and systems of collecting that kind of information. Perhaps the noble Baroness will allow us to come back to her on that point.
§ Baroness Thomas of WalliswoodPerhaps I may refer to an earlier discussion. The clause states:
Each adoption agency must give to the appropriate Minister any statistical or other general information he requires about—Presumably, therefore, if the Minister requests information about the number of people who are rejected, the adoption agencies will be obliged to and will be able to provide that information.
- (a) its performance of all or any of its functions relating to adoption,
- (b) the children and other persons in relation to whom it has exercised those functions".
122GC We have had an interesting discussion. I will read again what the Minister said in response to my original proposal and meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
§ Clause 14 [Default power of appropriate Minister]:
§ Earl Howemoved Amendment No. 47:
Page 10, line 34, leave out subsection (1) and insert—(1) If as a result of an independent review any local authority is found to have failed, without reasonable cause, to comply with any of the duties imposed on them by virtue of this Act or of section 1 or 2(4) of the Adoption (Intercountry Aspects) Act 1999 (c. 18), the appropriate Minister may make an order declaring that authority to be in default in respect of that duty.The noble Earl said: Amendment No. 47 modifies subsection (1) of Clause 14. Under the existing Clause 14, when a Minister determines that a local authority has failed to comply with its duties, either under the Bill or under the Adoption (Intercountry Aspects) Act 1999, he can make an order declaring the authority to be in default. That process seems to exist quite separately from the very significant independent review of determination provisions in Clause 12.The Bill is silent as to how the Minister might form the view that there is no requirement for him to consider the outcome of the independent review panels that he will set up. If there is to be an independent review process—and we believe, as was debated the other day, that this should be stronger and more extensive than provided for in Clause 12—it seems only logical that the review process is the best way to determine whether an authority is in default. That is what the amendment seeks to achieve.
If the Minister is not minded to look with favour on the amendment, I hope that she will say how the Government expect the process of adoption to have failed before a default declaration is made. What other considerations will lead the Minister to such a decision? I beg to move.
§ 3.45 p.m.
§ Lord Campbell of AllowayI rise to support the amendment. It identifies a gap in the process and, in my opinion, fills it satisfactorily. But there is no doubt that there is such a gap.
§ Baroness AndrewsClause 14 provides default powers for the appropriate Minister which are exercisable where a local authority has failed, without reasonable excuse, to comply with any of its duties imposed by the Bill or Sections 1 or 2(4) of the Adoption (Intercountry Aspects) Act 1999.
It introduces a specific default power for adoption, modelled on Section 84 of the Children Act 1989, and brings it into this new adoption legislation. It replaces, in relation to adoption, the general default power currently provided by Section 7D of the Local Authority Social Services Act 1970. This is an aspect of the role of consolidation the Bill plays in relation to adoption as a whole.
123GC The appropriate Minister may make an order containing directions to ensure that the local authority complies with the duty within the period specified in the order.
The noble Earl has addressed Amendments Nos. 47 and 48 to the absence of a link between the provisions in Clause 12 for the independent review mechanism and this clause. It appears that the intention is to ensure that where a failure comes to light as the result of an independent review, the appropriate Minister may make a default order.
However, I suggest that the effect of the amendment is to narrow the scope of Clause 14. Perhaps I may explain why. Under Clause 14 the appropriate Minister may make a default order using any information that is available to him about a local authority's failure to comply with its duties. That information can come in a variety of ways. It could come through social services inspections reports, through the courts and, after April 2003, from the National Care Standards Commission which will be inspecting adoption authorities.
We would also expect the independent review panel, which is set up under Clause 12, to inform the Minister when it becomes apparent that there is a serious failure on the part of a council. While one would not want to generalise, one could imagine a range of serious failures in relation to the process of making adoption orders that could be based on previous bad practice. It is our expectation that the review will be looking out for such matters. The appropriate Minister could use that information when making a decision about whether to make a default order.
These amendments would therefore restrict the appropriate Minister's flexibility to draw on all forms of information. They would permit him to exercise his default powers only where, as the result of an independent review, the local authority was found to have failed, without reasonable excuse, to discharge one of its duties. Such a restriction could not be justified. It is essential for the appropriate Minister to be able to exercise his default powers where he is aware of such a failure, regardless of the way the information reaches him.
I also suggest that the amendments might make it more difficult for the Minister to intervene. The default power is intended to be used where there have been a number of failures on the part of the local authority. Not all cases of failure would, however, result in an application being made to the independent review panel. Not everyone, for example, would want an independent review. That would mean that the Minister would be presented with other forms of evidence that would not have been reflected in a review panel determination. I do not believe that that was the intention of the amendments, but this is the effect that they would have.
I hope that I have been able to reassure Members of the Committee that the powers in Clause 14 are broad enough in scope for the Minister to make a default order using information about a local authority's 124GC failure to comply with its duties, which is made available to him through the entire independent review process.
§ Baroness Thomas of WalliswoodOur Amendment No. 48 is similar to Amendment No.47. I believe there are only a couple of words that are different. I suspect that part of the motivation behind the measure is inherent in the word "independent", as opposed to something which is just done by the Minister himself. It may be that the Minister's reply, if looked at in its entirety on a sheet of paper, will satisfy us that we have the independence that we require without necessarily going ahead with the amendment. We will have another look at it before a later stage of the Bill.
§ Earl HoweThat was a very helpful reply from the Minister. The amendment was really designed to tease out how this process would work, and what the link would be between the independent review process and the Minister's own powers. I quite see that the amendment, albeit unintentionally, restricts the scope for action, and that is not, of course, what we would seek to place on the face of the Bill. I also recognise what the Minister said initially, that this is designed to reflect the model first used in the Children Act 1989, and of course there is an advantage in having that consistency.
As the Minister will be aware, we feel that the independent review process needs to be broader in its own scope, but I take her point that whether or not that happens, the Minister's own ability to act should not be fettered, and what she has said will make the whole process much clearer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 48 and 49 not moved.]
§ Clause 14 agreed to.
§ Clause 15 agreed to.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)moved Amendment No. 50:
After Clause 15, insert the following new clause—
§
"DISTRIBUTION OF FUNCTIONS IN RELATION TO REGISTERED ADOPTION SOCIETIES
After section 36 of the Care Standards Act 2000 there is inserted—
§
"36A VOLUNTARY ADOPTION AGENCIES: DISTRIBUTION OF FUNCTIONS
(1) This section applies to functions relating to voluntary adoption agencies conferred on the registration authority by or under this Part or under Chapter 2 of Part 1 of the Adoption and Children Act 2002.
(2) Subject to the following provisions, functions to which this section applies are exercisable—
(3) So far as those functions relate to the imposition,variation or removal of conditions of registration, they ma) only be exercised after consultation with the Assembly or (as the case may be) the Commission.
125GC
(4) But—
(5) The functions conferred on the registration authority by sections 31 and 32 of this Act in respect of any premises of a voluntary adoption agency are exercisable—
(6) In spite of subsections (2) to (5), regulations may provide for any function to which this section applies to be exercisable by the Commission instead of the Assembly, or by the Assembly instead of the Commission, or by one concurrently with the other, or by both jointly or by either with the agreement of or after consultation with the other.
(7) In this section, "regulations" means regulations relating to England and Wales.
§ The noble Lord said: I have spoken to this amendment in a previous group. I beg to move.
§ On Question, amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Clause 16 agreed to.
§ Clause 17 [Placement for adoption by agencies]:
§ Lord Clement-Jonesmoved Amendment No. 51:
Page 12, line 12, leave out "An adoption agency" and insert "Where an adoption agency is satisfied that a child ought to be placed for adoption itThe noble Lord said: We now come to Chapter 3 of the Bill, which is a very important and quite lengthy chapter, dealing with placement for adoption and adoption orders. I would call Amendment No. 51 a probing amendment except that, of course, in Grand Committee all amendments really by definition are probing.The essence of this particular amendment is to discover precisely what the duties of an adoption agency are under Clause 17. What are the qualifications for the use of their powers under subsection (1)(a), or (b), when they are making a decision about placing a child for adoption, or the use of the power to place a child for adoption with prospective adopters, or the decision to leave a child with those with whom a child has been placed as prospective adopters? What process should the agency have gone through in order to make a decision that either paragraph (a), or paragraph (b) should be invoked? That is why this particular amendment, the wording of which is as follows,
Where an adoption agency is satisfied that a child ought to be placed for adoptionis a useful way of teasing out what duties the agency should have. Indeed, it would ensure that an agency had to go through a process of decision-making. That is by no means clear from the existing wording of the 126GC Bill. It is important that the process should be gone through and be susceptible to legal challenge if it is not correctly followed. I beg to move.
§ Baroness AndrewsWe fully appreciate the intention behind the amendment. We have moved on to Chapter 3 and this clause whets our appetite. We are getting to the heart of the process, which is where we want to see the changes which will benefit children.
The clause does not deal with the process of decision-making leading up to placement. It is a framework clause essentially. Its purpose is to make it clear that adoption agencies may only place a child for adoption if they have the consent of the parents or, otherwise, under a placement order. I am sympathetic to what the noble Lord said. I want to reassure him that the intention is that an adoption agency should place a child for adoption only where it is satisfied that the child ought to be placed for adoption. In coming to this decision, the full range of powers and requirements under Clause I will bind the agency in that respect.
The Bill follows the existing practice of the Adoption Act 1976. That Act did not set out on the face of the Bill any reflection on process or concepts of what ought to be considered. The process for decision-making by adoption agencies will be set out in regulations, as it is indeed in the current regulations under the 1976 Act. We have reproduced the process which has been in place for 25 years.
As noble Lords know, the process at the moment is that where, as a result of a case review, a local authority is considering adoption for a child it is looking after, or a voluntary adoption agency is considering placing a child for adoption, the first step is to refer the case to the adoption panel, an independent panel made up of specialist and lay people. The panel makes a recommendation to the authority or to the voluntary agency as to whether adoption is indeed in the best interests of the child. It is then up to the authority to decide whether to accept that recommendation. If it does, at that point the authority is satisfied that a child ought to be placed for adoption.
The new regulations will set out a similar process. In the context of the Bill, the decision that the agency is satisfied that the child ought to be placed for adoption should be made before a child may be placed with the consent of the birth parents. Again, that is what the regulations will provide. They will also provide requirements to consult the child directly throughout the decision-making process, to record his or her views, and to ensure that they are taken into account, for example, in panel decisions.
Under the provisions of the Bill in Clause 1, the child's welfare is, as we have said many times already, the paramount consideration. The duty is to bear in mind the harmful effects of delay in decision-making. The welfare checklist set out in that clause will apply throughout the decision-making process.
Where a local authority is satisfied that, as a result of this process, a child ought to be placed for adoption but the parents do not consent, the agency should 127GC consider also the significant harm that might occur and that the threshold is met. Under Clause 21(1), it will be obliged to apply for a placement order. Therefore, I want to reassure Members of the Committee that our intention has been that there should be a proper decision-making process—there is no question about that—in the adoption agency that determines and to the agency's satisfaction. It is in the best interests of the child to be placed before any placement happens.
That said, however, I can see that there is some advantage in what the noble Lord has said as regards absolute clarity. One of the things we are trying to do in this process in the new Bill is to make absolute clarity as regards process and choice for parents and children. Therefore, the Government are certainly willing to consider the points raised by the amendment. We shall look at the proposed wording in detail and any wider implications of making a change along the lines proposed with a view perhaps to returning to this issue on Report.
§ 4 p.m.
§ Lord NorthbournePerhaps I may widen the question and ask whether we shall have an opportunity to see the guidance before the Bill is passed, because I suspect that there are a number of points of detail that some of us may wish to look at and think about.
I wish to raise one issue on this amendment, although it is not appropriate to it. I confess that I thought of setting down an amendment about it but could not see how to do so. There is, rightly, a great deal of emphasis on the welfare of the child. My wife sat for many years in the juvenile courts and she made the point to me that when you take a woman's child away you destroy that woman. Therefore, we ought to build somewhere into the machinery support, counselling and consideration for that woman's position.
§ Baroness AndrewsThe commitment of the noble Lord to the welfare of children is well known in this House, and I take entirely the points he has made. We have had discussions on the regulation-making process and I wish to assure him that there will be a full consultation process. We have two years to ensure that before the Act comes into effect the regulations are as sound and as inclusive as possible. So in that process, the concerns that he has raised will be addressed.
As regards the seriousness of the choice which is being made by the woman or, indeed, the family giving up a child for adoption, we are very well seized of that. When we come to discuss in the next clauses the placement with consent, we shall be saying how seriously we are addressing the whole question of the negotiation which goes on with parents to ensure that they know full well what they have agreed to do and the counselling that can be provided in that process. I hope that that will satisfy the noble Lord.
§ Lord Clement-JonesI call that a splendid debut for the noble Baroness on the Bill. I know that Ministers 128GC do not lightly bandy around words like "sympathetic", and I was waiting for the point where I was going to be let down. However, having taken us through a very considered view of the process which is again to be enshrined in regulations, to find that the noble Baroness still believes that there is room for improvement on the current wording is extremely heartening. That bodes well for the clarity of this chapter in the Bill, which we shall debate at greater length as regards the content. I am pleased that the Minister accepts the fact that there is room for improvement on the wording, even after 25 years of use of the Adoption Act 1976. I look forward to seeing how the Minister's considerations progress between now and Report and in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Clement-Jonesmoved Amendment No. 51A:
Page 12, line 17, leave out "section 18 orThe noble Lord said: We now come to the meat of Chapter 3 and on all sides there are a considerable number of concerns about the provisions in the Bill regarding placement orders and placement by consent, particularly in relation to potential conflict with the Children Act and the unnecessary complexity regarding the implications of parents giving consent to placement.I offer three examples. In circumstances where a parent consents to adoption and subsequently changes her mind, she cannot remove the child even if the child has not been placed for adoption. It may be reasonable for there to be some delay in cases where the child is placed with adopters but it is hard to see the reason for delay where the child has not even been so placed.
In situations where a relinquishing mother consents to the adoption placement and obstructs the local authority from ascertaining the views of the father without parental responsibility and the wider family, the adoption agency faces the dilemma of whether to place with consent or insist that the father and possibly the wider family are consulted.
The third example is where a birth parent can give consent to placement even before the child is six weeks old but could then be committing a criminal offence if she changed her mind and tried to take the child home.
There are huge complications in this section of the Bill. Members of the Committee will remember that a chart was issued with the Explanatory Notes and most will have seen that and will appreciate the sheer complexity. This set of amendments tries to reduce that complexity. The aim of the proposed amendments is that there should be a placement order in every case, including where the placement is by consent. The advantages of this would be that the significance of the decision being made by the parents in consenting to a placement would be underlined to them. That is particularly important in view of the restrictions placed by the Bill on the parents' ability to withdraw their consent and contest the making of the adoption order.
129GC The complicated provisions contained in Clauses 29 to 31 and 33 would not be needed. It would be enough to provide that the making of a placement order operated to remove the parents' right to remove the child without the leave of the court. The child and prospective adopters would have greater protection against disruption of the placement. Any outstanding issues or queries about, for instance, the involvement of fathers without parental responsibility or wider family members could be resolved by the court prior to the child's placement. Such a course is advocated by the president of the Family Division In Re H and In Re G. Under the Bill's scheme, there is no recourse open to an agency, other than invoking the inherent jurisdiction of the High Court, in addressing the dilemma facing it when a mother refuses to agree to the involvement of a father without parental responsibility in making plans for a child.
Although on the face of it having a placement order in every case may appear to create extra delay and expense, on these Benches we do not believe that this will occur in practice for the following reasons. If the consent is genuine, the court hearing can be brief and fitted in, for example, early in the court day without unnecessary delay. Moreover, if the consent is not genuine or is confined to the mother only, but the father or members of the wider family wish to care for the child, it is appropriate that that is ascertained and adjudicated upon by the court before the placement is made, as envisaged in Clause 1. Otherwise, delays may occur at the adoption hearing, when father or wider family may be making applications for contact or residence orders.
Issues about the extended family or father without parental responsibility being able to care for the child need to be able to be raised in order to ensure compatibility with the European Convention on Human Rights. While the agency, if it follows good practice, will consider these issues—or should have done so—a court hearing before authorisation is given to place the child will provide the opportunity for them to be raised in a judicial forum. If they are not raised until the final adoption hearing, not only will this cause delay but it will almost certainly be damaging for the child and distressing for the adopters.
Other amendments relating to Clause 20 are designed to enable the court, in certain circumstances only, to limit the placement order to a power to place with specific adopters named in the order. The situation envisaged is one where the child is already living with the family which it is proposed should adopt him or her.
Where a child has been placed with foster carers and, after some time, it becomes apparent that they are the most suitable permanent placement for the child, and they and the local authority wish the placement to become an adoptive one, it seems appropriate for them to be identified in the placement order. The court might be willing to endorse a plan for the existing foster carers to adopt while being reluctant to make a generalised placement order. If for some reason the adoption by the foster carers did not take place, it 130GC would surely be appropriate for the court to be asked to consider the changed circumstances before making any new placement order. I beg to move.
§ Earl HoweI very much support the principle underlying this part of the Bill, which is to ensure that where a child is being considered for adoption as far as possible the question of parental wishes about the child's future is addressed prior to placement for adoption. The main point about tackling matters in that way is that once the issue of parental wishes has been dealt with, the child and the prospective adopters will enjoy reasonable security from that time on until the final adoption order is made.
While that concept may appear to be perfectly suitable in many cases, we have to be extremely careful about it. The consequences of parents giving their formal consent are so serious that I question whether a purely administrative procedure is really sufficient to safeguard the child's welfare and the parents' rights. I say that for one principal reason. Although the noble Lord, Lord Clement-Jones, raised a number of reasons, the principal reason is the finality of the parental consent. If the parent agrees and subsequently changes his or her mind, he or she cannot remove the child even if the child has not yet been placed for adoption. As I understand it, that is a correct reading of Clause 29.
The adoption agency will have assumed parental responsibility for the child and the agency can then restrict the ability of the parents to exercise parental responsibility. Furthermore, where parents have consented only to placement in principle but have never given their consent to the proposed adoption order, they will be unable to oppose the making of the final adoption order unless the court gives them leave to do so because of a change in circumstances, as detailed in Clause 46. In other words, the court may never have to consider whether the parents' consent to the proposed adoption has been given or should be dispensed with.
The noble Lord, Lord Clement-Jones, helpfully went through various circumstances where the Bill, in his opinion—and, indeed, in mine—falls short in this general area. The amendments that he has tabled are an excellent way of addressing those deficiencies. I myself tabled a broad, probing amendment to leave out Clause 18, which was designed to tease out these precise points. It is better, however, if we roll the whole debate into one.
There is an answer, and that is that, even in cases where placement is by consent, all children relinquished for adoption should be the subject of a placement order. I shall not repeat the reasons but it seems that the rather complicated provisions in the Bill at Clauses 29 to 31 would not be needed if we went down that road. As the noble Lord emphasised, the full import of the decision being made by the parents would be brought home to them in an unequivocal way.
The European Convention on Human Rights requires that family members must be given access to a forum in which they can express their views about the 131GC proposed severance of the child from his or her birth family. I think that that is yet another reason why these amendments are worthy of serious consideration.
§ Baroness DavidI have put my name to these amendments, and I should like to give strong support to the case made by the noble Lord, Lord Clement-Jones, which was so ably spoken to by the noble Earl, Lord Howe. We must remember how irrevocable adoption is, and the thought that a perhaps very young person can give consent to adoption and that the placement order can then go through is not good. We have to take every care that, whoever the mother is who might be relinquishing a child, a great deal of thought is given to that decision. The plans made in these amendments are very good, and I hope that the Minister will give them a very sympathetic hearing.
§ 4.15 p.m.
§ Lord Campbell of AllowayI support the amendments in principle. However, let there be no misunderstanding that placement does not pre-empt the situation of the parent. It does not do so in relation to adoption, as Clause 46(2)(c) makes it perfectly plain that the court must be satisfied that,
the parent's or guardian's consent should be dispensed with".That involves a full hearing, and was the subject matter of the leading authority, In Re W, to which I referred on Second Reading. I shall not refer to it again.It is a fully protective procedure for parents in the sense that they will be heard and their representations will be entertained. However, that is against the paramount requirement of the interests of the child and not the paramount interests of the blood tie, the parent. Subject to that, which is retained in Clause 46, one cannot say that there is no satisfactory protection at the adoption stage because of the placement. However, I support the amendments.
§ Baroness Howarth of BrecklandI ask for the Minister's help as I find this a complicated process to think through from the practitioner's point of view. I am sure that other practitioners are probably struggling with this too.
We seem to have two elements twisted together. The first is the issue of whether there should be a placement order in absolutely every situation. Despite my practice and my views about the paramountcy of the child's needs, I am not at all sure that in every single situation we should go through the full paraphernalia of court appearance. Having spent a great deal of time in court, I know that even the most sympathetic courts can be extremely distressing for even the most sophisticated families. These are not usually the most sophisticated families.
Nevertheless, what we are trying to tease out in relation to these amendments are some of the principles throughout Chapter 3. That is why it is quite difficult to grasp one thread without considering some of the others. Although I did not manage to get to my feet to speak earlier, as there did not seem to be an opportunity, I support the previous amendment moved by the noble Lord, Lord Clement-Jones—to 132GC which I think the Minister was sympathetic. I support it not so much because I think that process is always a good thing to include in a Bill, but because that particular amendment spells out the real need to look at the detail of what happens before the child is placed for adoption. That is my difficulty in relation to these amendments.
Adoption is one point in a child's life at which there is complexity. It is part of the total childcare aspect of the child's situation. In dealing with the complexity that continues in terms of placement, we need to ensure that the needs of the child's birth family have been considered. I take the view that there are many families where one cannot continue to keep a child with the family. I have worked with women who would have liked to have kept their child had we been able to provide other services—which I think that we would provide, post-adoption, to a family who adopts a child. There are some real issues that we are not teasing out because we are not addressing them in a more global way.
Another part of the Bill suggests that the family will not then be able to remove the child even if it is not placed for adoption. My concern is that, if we go for a placement order in every case, short of changing provision in the Children Act, we shall not be providing the opportunity for that family to have another go at looking after their child. This is where the conflict with which I am struggling arises with the Children Act. I am not a lawyer, and I find this quite difficult to tease out. As a practitioner, however, it is terribly important that we look at the situation of the child, the birth family and the adoptive family, and find a simple route through to the best solution for the child. Like most noble Lords, I find this route extraordinarily convoluted.
§ Baroness AndrewsI am grateful for the thoughtful comments from all sides of the Committee. Noble Lords are quite right: this is a very serious process. Although I would dispute that it is as complex as has been described, it is truly important that we are clearer about what we intend to do. I shall take the time, if I may, to address all the amendments and look in some detail at some of the issues which have been raised. I hope that I am able to answer some of the points and concerns that have been raised in relation to, for example, consultation with the wider family and potential conflict with the ECHR.
I shall try to explain the context of our thinking on placement. The Bill tries to achieve two objectives. The first is to put in place, for the first time in law, the concept of placement itself, which entails a clear process for involving the birth parents, the agency and the adoptive parents, as well as the child, and putting that within a clear legal framework where none has existed before. In so doing, we seek to put in place a new arrangement of rights and responsibilities which come into interaction with each other at different parts of the process, to strengthen both the rights of the birth parents in different ways, the security of the child in different ways, and the rights of the adoptive parents 133GC to act as successful adoptive parents. It makes the process clearer, more deliberate, fairer and more secure.
The second objective is to make the process of placement more appropriate and responsive to different situations. These children come from families with different family histories and different circumstances and prospects. They might have been in care, or they might have been fostered or living in situations at risk. They are all individual children with a different set of circumstances to be considered, and with a different set of responses from the family.
We are not trying to create through the placement process a fast track or a casual track just to meet some arbitrary target. We are not seeking to do that at all. We are trying to create two processes which are equally sensitive. One is to do with parents who are consenting to the process, involving the children who are now in voluntary accommodation. For the other set of children, there is no parental consent. Their placement will involve a serious set of negotiations with many people. It is a potentially long process, but it has built-in safeguards for everyone involved.
I hope that noble Lords will agree in due course that we struck the right balance. The amendments propose some fundamental changes to that balance. We therefore need to be clear about what we are doing. In summary, they would remove the current provisions for placement with parental consent in Clause 18. They would require that a placement order was made for every placement on adoption no matter what the family circumstances.
Before I consider the amendment, I would like to take Members of the Committee back briefly over the history. The Bill has been in development for a decade or more. Many of the arguments have been held by practitioners in relation to successive governments. Much thought has gone into how best to improve the process after all these years. The proposals have evolved through successive consultations—and it has been a genuinely inclusive process—in 1993, 1994 and 1996 and during the passage of the Bill. The main aim is to resolve the substantive issues relating to consent. We believe—and we are informed about this; this is what the practitioner body says—that the current legal process leaves too much of the process of negotiation to the final adoption hearing. The placement system aims to improve on this in three main ways.
First, it aims to give greater certainty and stability to children by dealing as far as possible with the bulk of issues that are really problematic for families around consent to adoption before they have been placed, so that placement occurs not at the end but a good way through the process, rather than at the beginning.
Secondly, we aim to reduce the extent to which birth families are faced with a fait accompli at the final adoption hearing, when all they are faced with is the ability to say, "No, we have changed our minds". By that time a child will have been with adoptive parents for some time. That is a significant additional safeguard for the birth parents in current legal 134GC framework. Under the Bill, parental consent must be sought before the child is placed for adoption. Either they must consent or the courts must decide to dispense with their consent in making a placement order. That arises later in the Bill and there will no doubt be animated discussion on conditions for dispensing with consent. In the context of these clauses, we are dealing with the process at this point. Either way, the issue must be addressed and resolved before the child is placed with prospective adopters.
At present, there is no legal concept of authorisation to place dependent on parental consent. There is no requirement to seek parental consent before an adoptive placement is made. We have a situation, for example, where a child may have been in care under a care order and originally the intention might have been that that child be rehabilitated with his original parents. But circumstances change. Often the plan will move to adoption. The agency, the social workers involved, will discuss the matter with the family and they will decide that the time for rehabilitation is gone and that adoption is the only alternative.
When that happens, however, there is no requirement that the parents have to consent to their child being placed for adoption. The local authority can simply go ahead, saying: "We have changed our minds. Circumstances have changed, therefore this child is going to be placed for adoption". No formal process is necessary.
The result is, therefore that often the first formal opportunity the parents have to contest the issue of adoption is at the final hearing. Then they can say, to the dismay of prospective adopters and to the disruption of the child, "We have changed our minds about this. We know that it is a loving adoptive family. We know the child possibly might be better off. But I'm sorry, we've changed our minds". By that time, the child could have been with adoptive parents for many months.
Courts in that situation can be reluctant, too. The other effect is that when the courts take the side of the adoptive parents, the birth parents feel that they have had no right, nor have they been listened to thoroughly. The danger of fait accompli was a key reason, therefore, why the Adoption Law Review recommended addressing the issue of parental consent before the child was placed. I would argue that in this way there is a significant strengthening of safeguards for birth parents and a fairer deal.
The third aim of the provisions is that they try to reduce the uncertainty for adopters. At Second Reading, we heard very eloquently and movingly of the dilemma faced by adoptive parents who are finding it extremely difficult to conclude the process of adoption. Therefore, we are trying to reduce the uncertainty for adoptive parents who, currently, a year down the line, are suddenly faced exactly as the birth parents are with the prospect of a change.
As a result of shifting much of the substantive question of consent earlier in the process, the process reduces the opportunity to contest. However, I would point out—and I hope this will reassure the noble 135GC Lord, Lord Clement-Jones—that the parents may still contest the final hearing if they obtain leave of the court, which may be granted provided that there has been a change in circumstances. We will come on to describe what that might mean.
Therefore, Chapter 3 provides two routes for placement. The first is placement by parental consent under Clause 18, either through a voluntary adoption agency or a local authority, or under a placement order under Clauses 20 and 21. The second route is only available to local authorities, and I shall explain why in a moment. I stress, therefore, that placement by consent is intended to be entirely voluntary. Where the parents withdraw their consent, they can do so at any point before the final order, the final application for the child to be adopted, is made and the child must be returned to them if they make that application. The only change would be if the local authority was under a duty to apply for a placement order. If the child was felt to be at risk of significant harm, or if there was a care order already on the child, that would outweigh the other considerations.
The two placement routes are connected. Where a local authority considers a child it is accommodating ought to be placed for adoption, it must either place him with consent; or, if the parents do not consent and it considers that the child is at risk of significant harm, or the child is under a care order, it must apply for a placement order.
That is in line with the Children Act philosophy of seeking to work with families and to get that balance right between providing for support in consent, but also providing for statutory intervention and protection when that is the right route.
Turning now to the amendments, I shall deal first with Amendments Nos. 51A, 52A, 54 and 54A to 54C. In summary, their effect would be to remove the placement with consent route completely, and to require that there must be a placement order made by a court authorising every adoptive placement, both those where the parents have consented and those where they did not.
Amendment No. 51A amends Clause 17 to remove the reference to Clause 18, so it would now provide that an adoption agency may place a child for adoption only under a placement order—both consequential.
Amendment No. 52A makes a consequential change to Clause 19, so that instead of allowing parents to combine consent to placement with advance consent to adoption, they can now combine consent to a placement order with advance consent to adoption—again, a consequential amendment.
I shall take Amendments Nos. 54, 54A, 54B and 54C in two groups. Amendments Nos. 54 and 54A to C make follow-on changes to the placement order to provide that where the parents consent to a placement order, the court can make one without the Children Act significant harm threshold being met, but where the parents do not consent, the threshold would have 136GC to be met before an order could be made. That is entirely logical, in the same way as the Bill provides as currently drafted.
Finally, Amendment No. 53A would tie a placement order to an existing placement, a specific placement, where the child was already living with prospective adopters when the placement order was made.
I know that Members of the Committee and some of the stakeholders in the adoption process, the professional agencies, have expressed concern about the current provisions in Clause 18. I want to address those concerns and I hope to be able to do so in what I shall say next. The Government do not share the view that we should dispense with the consent route. The three main arguments of the noble Lord, Lord Clement-Jones—and of the noble Earl, Lord Howe, in some respects—were, first, that the significance of the decision taken by the parents requires the court to be involved. It is such a serious step that we need to make provision to ensure that every parent knows what he or she is contracted to do.
Secondly this is a point made by the noble Lord, Lord Clement-Jones, particularly—it would provide an opportunity for agencies to seek the court's guidance on tricky questions where they were having difficulty deciding how to consult and involve unmarried fathers without parental responsibility or the wider family members.
Thirdly, the use of a placement order in every case would justify recasting the provisions covering removal from adoptive placements, which are described as complex and which we will discuss later.
I believe that the Bill is right for two main reasons. The first reason is the safeguards in the system. Indeed the strongest safeguard is the one that I described in relation to putting the birth parents' consent process early in the whole raft of options.
In relation to the first point about the court hearing, we made it clear in the debate in the other place that it is already a key element of placement and consent provision that the adoption agency is under a duty to spell out in regulations the need to counsel the parents and to explain to them the full implications of what they are agreeing to.
We believe that in situations where it is a consensual decision to let the child go for adoption and the parents are fully in agreement, the fullest opportunities to counsel those parents and to discuss the issue with the child will be provided. In that way, everyone will know what they have signed up to.
A further safeguard is that the Bill provides for parents' consent to a placement to be witnessed by CAFCASS officers, who are wholly independent. Their job will be to ensure that the consent is given properly and transparently, with the full knowledge and understanding of the parents. I stress that we are willing to consult on the detail of the role that the CAFCASS officer should play at this stage. It is an important safeguard. We want to get it right. We want to know that we have the right role for the CAFCASS officer.
137GC Finally, the consent itself is to be given in a prescribed form, which will spell out clearly what is being agreed to. We believe that those safeguards, together with the fact that, as I have said, the consent to placement can be withdrawn by the parents at any point up to the application of the final adoption order, will be in themselves sufficient to ensure that the parents do understand the significance.
On a personal reflection, I believe genuinely that parents who are contemplating this step will really understand what it will mean to lose a child. I imagine that those in your Lordship's House who have experience of the adoption system would support that contention.
The second argument in favour of requiring a placement order is that it will ensure that agencies have properly explored all the options in the wider family. I understand the significance of that. Often these children live in complex family systems; they are often placed with family members; and they have other people in their lives who need to be consulted. The argument is that a placement order in each case would provide a transparent route to seek the guidance of the court in these complex cases when they do not know whether to consult unmarried fathers or wider family members—or, for example, in cases where the mother wanted to give up the child in secret.
It is a developing area. The noble Lord, Lord Clement-Jones, referred to the ECHR and the Human Rights Act. That legislation is bedding down. We have given a commitment that we will cover the appropriate action for agencies in full in the new adoption agencies regulations and guidance.
It is also important to remember proposed agency decisions and the process that has led up to them and that this is not the start of the process. It is a long way through the process and we would expect the adoption panels, with all their expertise and independence, to have played a leading role in ensuring that the proper work had been done before any decision was taken that adoption was in a child's best interest.
In addition, there is another safeguard. For those who believe that the court has to be involved, there is a route into the court. It will be open for the agencies to seek the views of the court in cases of great doubt or complexity, either by applying for a placement order if it is a local authority and the child is at risk of harm, or by applying for a ruling under the court's inherent jurisdiction, as they can do under the existing legislation. Again, we are very willing to consult on whether specific provision should be made for this alternative in the court rules. So there will be a route into court for difficult cases.
I am grateful for the support of the noble Baroness, Lady Howarth. I do not believe that these few difficult cases justify a requirement to go to court in every case. That brings me to the other reason why we do not believe that a placement order should be applied in every case.
138GC I have discussed the strong safeguards in the Bill to cover the concerns raised, but in addition let us reflect on what the Bill is trying to do. It is trying to create a simpler and speedier process for children to be placed with stable and loving families after what can be a long period in care or in a series of foster homes. We want to move to a position where when we have the consent of the parents we do not want to put increased delays and barriers in the way.
To get an idea of what the amendments would mean, at the moment 16 per cent. of children adopted from local authority care have already been placed voluntarily—in effect, with the consent of their parents. Those are the children we are talking about. They have been placed without a court order or the involvement of the court. They can be there for many different reasons, but 430 children a year are there voluntarily. Not all these cases would be suitable for the Clause 18 route but this gives an idea of the upper limit.
The effect of the amendment could be to require several hundred additional court cases a year; possibly over 400 and potentially 600 if we reach the target we have set of a 40 per cent. increase in the adoption of children from care. Because a child cannot be placed for adoption until the placement order is made, the result would be bound to be increased delay in placing these children while they wait for the court hearing on the placement order.
We know that some of the agencies that are most involved and most conscientious about the future of the child are concerned about delay; they do not believe that this will occur in practice because they have suggested that these cases can be seen at the beginning of the court day when the court is free and can be dealt with relatively speedily. However, it is hard for us to agree with that because our clear advice from colleagues in the Lord Chancellor's Department is that that pre-list time is already fully occupied with other work. For example, into that slot go the urgent injunctive procedures and case-managed family business. Some Members of the Committee will know far better than I the kinds of things which can clog up the early part of the court day. The spare time in which to handle these applications with no risk of delay is not available; it would be bound to compete.
Given that these will ostensibly be non-contested agreements, we do not believe that they would have priority over urgent cases or pressing family proceedings. The inevitable result will be increased risk of delays in adoptive placements with consent, over and above that which already occurs. Is that justified? We believe that it is not.
The 1992 Adoption Law Review suggested that there should be a court order authorising every placement. However, when the 1993 White Paper was published, the previous administration said that many of those consulted feared that the new procedure might prove cumbersome and might in some cases unnecessarily and without clear benefit add to the length and complexity of the process. That argument has been with us for a decade and has evolved in a 139GC positive sense as far as the Government are concerned. The White Paper also committed the Government to further consultation and in 1994, when we put forward the concept of placement by consent without a court order, it was strongly supported in those consultations. Those arguments hold true today.
Amendment No. 53A will require the placement order to be made when the child is already living with the prospective adopters. We move from a placement order that can be made without any family being identified, to one that is very specific. What will happen in the regrettable, but not unpredictable, event that a placement broke down? Even in the best regulated foster-parent homes, placements break down for different reasons. The local authority would then no longer have the legal authority to place a child for adoption. If it still thought that the child ought to be placed for adoption, it would have to return to the court to obtain another placement order and this would, again, add to delay.
Again, I shall pray in aid the consultation process. The issue of whether placement orders should be general or specific was one of the key questions posed in the public consultation in 1994. Responses were strongly in favour of general placement orders, on the grounds that they are both simpler and more flexible. I reiterate that the purpose of placement orders is for the court to decide that placement for adoption is in the best interests of the child.
Obviously, the identity of the prospective adopter is critical. The whole process is designed to ensure that the prospective adopter is the best possible quality commitment for the child. The court is essentially being asked whether in principle the child ought to be placed for adoption. It is not being asked to select and match the child with prospective adopters. That is the task for the adoption agencies which are properly skilled and equipped to do it.
Where a placement under a placement order has broken down, the local authority will need to review the case and consider what is the best form of action. It may be that it is no longer adoption. Other factors may have come into play. It may be time to consider possible rehabilitation with the family itself. However, the Government believe that the authority should not have to return to the court, with the inevitable associated delay, before it proceeds to place the child, whatever the decision may be. If adoption were no longer in the best interest, we would expect the authority to make use of its power under Clause 23 to discharge the placement order and make whatever other arrangements were necessary and appropriate.
The Government believe that local authority social services departments, in their role as adoption agencies, are the bodies with the appropriate expertise to make these judgments, and that it is not the role of the courts at this level. I hope that if I have been able to convince Members of the Committee that there is an undesirable inflexibility in the amendments, they will understand why we do not think that they should be included.
140GC In conclusion, the Government's aim is to reduce delay, but not to fast track at the expense of the care for the child, the quality of the placement and the prospects for the child. We are building in safeguards, not removing them. The proposal to remove the current placement with consent route and to require that there must in every case be a court order authorising placement risks doing the reverse. That is why, on balance, the Government believe that the placement with consent route under Clause 18 should remain.
We recognise that a range of genuine concerns have been expressed today. I hope that I have set out the safeguards, but while I do not believe that it would be right rigidly to require that there should be a placement order in every case, we can see that there might potentially be some advantages in terms of extra flexibility in some of what the amendments propose; for example, enabling an agency to apply for a placement order in consent cases, and in these cases, allowing for the order to be made with consent without the significant harm threshold having to be met. We believe that those would be exceptional cases. Although we would consider that local authorities had a right to have that recourse, in no way would we want that to diminish the principle that voluntary placement by consent should be the route chosen for the vast majority of consensual cases. We are willing 10 look at this issue in consultation with stakeholders, with a view to returning to it on Report.
I am sorry that my explanation has been so long. However, given the nature of the amendment and the fact that your Lordships have approached it in such detail, I think that it is important to spell out the Government's case in detail. I hope that, on those grounds, your Lordships will feel able to withdraw or not to press the amendments.
§ 4.45 p.m.
§ Baroness Masham of IltonI should like to ask the Minister a question, if I may. She mentioned "both birth parents" several times. Would she agree with me that it is difficult sometimes to find both birth parents? The mother might be a street worker and might not know who the father was, or she might be somebody who had been on holiday abroad and had several relationships. In both cases it could be difficult to trace the father. Could the Minister talk a little more about how she sees tracing the fathers in these difficult cases? I know that some of these cases are difficult, and one does not want to delay a child being adopted if that is the best thing for that child.
§ Baroness AndrewsTracing unmarried fathers is a big issue. Under the present arrangements, at the early stages of the decision on whether the child ought to be placed for adoption, the adoption agencies would make every effort to do that. The Bill's provisions do not disturb that effort. Every effort will be made as part of the placement process to establish whether the unmarried father had a right to be consulted. Of course, it certainly reflects the nature of the relationship if the unmarried father has a continuing 141GC relationship with the mother, as that puts it in a different category. By marrying the mother, he can acquire a parental responsibility and so on. Throughout the consultation on regulations, we would certainly want to ensure that those provisions are strong and that they are fair to both parents.
§ Lord Clement-JonesI thank all those who took part in this debate—which is clearly, as the Minister recognises, fundamental to the operation of the Bill. I am grateful to her for taking the trouble to go through it in such detail and to address all aspects of the amendment. She need make no apology about the length of the reply; it is extremely important that we get this right.
The two words that I picked up on from other noble Lords during the course of the debate were "finality" and "irrevocability", posited against the Minister's "undesirable inflexibility" and the cumbersome aspects of having to go for an order every time. Of course, there are important considerations when one balances the two aspects. Those such as myself who take a view about the balance are very much influenced by the fact that Clause 51(4) contains wording that means that any withdrawal of consent prior to the adoption order being applied for is a nullity.
Clause 51(4) states that,
The withdrawal of any consent to the placement of a child for adoption, or of any consent given under section 19, is ineffective if it is given after an application for an adoption order is made".That is fairly heady in the circumstances.I have to hand the chart which makes it clear that, at an adoption order hearing where there has been a placement with consent, the birth parent may oppose the adoption order only with the court's leave. Thus, there are fetters in those circumstances, all of which tends towards finality if placement by consent has taken place; hence the argument that this should be done by court order.
I understand what the noble Baroness, Lady Howarth, said about this as a practitioner. However, there are many other practitioners among those whom the Minister has rather helpfully described as "stakeholders" in this process who feel very strongly that this is a necessary protection and that it is important to go through a very straightforward court order route for placement in order to ensure that we do not have problems at, in a sense, the back end of the process when the adoption order is made.
I do not believe that this particular set of proposals introduces greater uncertainty; indeed, it is designed to reduce the level of uncertainty. As we may hear in debating whether the clause should stand part—it is all part of the same argument—by deleting Clauses 30, 31 and 33 and Clause 18, we would in fact simplify the procedures in the Bill.
We probably have something of a philosophical difference in all of this. I shall very carefully read what the noble Baroness has said. Although I understand the resource issues involved, we have a very important decision to make in relation to the Bill. Regardless of 142GC whether court time is available, if we decide that this is the way to proceed, court time will have to be made available. We have to make those resources available.
I shall leave it there. The problem is that the noble Baroness, Lady Andrews, makes the case that there is no fait accompli. However, many of us believe that there is too much of a fait accompli—if it is possible to use the term relatively rather than absolutely. It is tilted too far the wrong way. Nevertheless, I am sure that we shall all go away and read the noble Baroness's words with considerable care, including her point on enabling an agency to apply for a placement order even where consent is given in certain circumstances. We shall definitely look at that to see if it is a possible way of perhaps compromising or at least curing some of the defects in the proposals currently before us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
§ 5 p.m.
§ Clause 18 [Placing children with parental consent]:
§ Baroness Barkermoved Amendment No. 52:
Page 12, line 40, after "of" insert ", or other persons holding parental responsibility for,The noble Baroness said: In moving this amendment I shall pick up the point raised in a previous debate by the noble Baroness, Lady Masham. The issue of deciding who holds parental responsibility seems less straightforward than those who come to these matters cold might think. The issue that we are trying to get at here is about parents who hold parental responsibility, such as grandparents, and about those who are not resident but still retain parental responsibility.One criticism of current practice, to which the Minister alluded in speaking to the previous group of amendments, is that it is possible for parents who are not present or living with the children to be ignored in the process. These days, and for many of these children, family structures are extremely complex and somebody who in effect has parental responsibility may not be the person who in law has parental responsibility.
In tabling the amendment, we want to ensure that thorough consideration will be taken of the wide kinship structures in which many of the children find themselves. I ask the Minister what exactly is meant, and who is meant, by the people who are named already in the clause, and whether that is wide enough. I beg to move.
§ Baroness Masham of IltonPerhaps I may ask the noble Baroness, Lady Barker, whether the amendment would include parents in prison. There is an extra difficulty because the children stay so long with the parent, and then they are taken away and put into care. The parent might want them adopted or they might 143GC not. The situation is so different if they are in prison, and the father might be in prison too. Would her amendment cover people in prison?
§ Baroness BarkerThat is a fine question. The noble Baroness, Lady Masham, may get more clarification from the Minister than she would from me, so I will redirect the question.
§ Baroness AndrewsThe answer to the point raised by the noble Baroness, Lady Marsham, is "Yes".
Perhaps I may reply now to Amendment No. 52. I know that the noble Baroness, Lady Barker has great concern for the rights of grandparents in particular, in relation to her professional work outside this House.
The provisions for consent to placement, like much of the Bill, follow the model of consent to adoption provision in the 1976 Act, but the people who must consent to the child being adopted are the child's parents or guardians. We have to make a distinction between parental consent, and the legal responsibility to act as a parent, and a parental responsibility. The people who must consent to the child being adopted are the child's parents or guardian. "Parents" in this case means the parent who has parental responsibility.
In addition, one of the great virtues of the Bill is that we have created a new role: "a special guardian". Clause 139 provides that "guardian" in this instance includes a special guardian. The intention of the special guardianship order is that the special guardian is the child's primary carer and takes the day-to-day decisions concerning the child's upbringing. It is right that he or she, alongside the child's parents, should have to consent to the child being adopted or being placed for adoption. The special guardianship fits within that rubric.
However, the effect of the amendment would be that others with parental responsibility would also need to consent to placement for adoption. That would mark a very significant departure from the position under current legislation. The largest group of people involved would be those holding residence orders, and they can be a great range of people. They can be other members of the family, they can be grandparents, but they can be people outside the family as well. They can be long-standing friends of the family who are trusted to take care of the child in certain circumstances, and who have applied for and been granted a residence order.
Giving the holders of residence orders the ability to consent to placement for adoption would therefore be giving them a huge additional responsibility. It would be a responsibility about that key decision in the child's long-term future which might not be appropriate in all residence order cases because they are made for such different reasons.
In practical terms, an adoption agency would not seek to place a child for adoption via the consent route at all when the child was subject to a residence order in favour of someone other than a parent with parental responsibility. The reasons for that are quite practical. If a residence order is successful, the child is living happily with that person. But the residence order 144GC determines where the child is to live and, therefore, it is quite difficult for the agency to gain access to that child. How would it be able to see and talk to the child and to decide that adoption was in his or her best interests? Therefore, how could they take some of the other decisions about whether adoption was the right route or about placement?
In a situation where there was a dispute between the parents and the holder of the residence order as to the future of a child, the parent would have to seek initially to discharge the residence order. If the local authority were concerned about the future of the child in such a situation and it wanted to quash the effect of a residence order, it would have to seek a care order. If the parents tried to take away the residence order in the course of a dispute, the local authority would have to think of the future of the child as regards the potential harm, and would have to seek a care order in those circumstances. If it was satisfied at that point that the child ought to be placed for adoption, it would also have to seek a placement order. If either a care order or a placement order were made, the residence order would be discharged.
As regards the other people who may hold parental responsibility, such as step parents, if we look back at the provisions of Clause 1(4)(f) there is the safeguard that the court would need to consider their views about the adoption if they were people who had a significant relationship with the child. That notion of significant relationship is not confined to family members. So the provisions are wide enough to ensure that account is taken of the views of relatives and others who have a significant relationship with the child.
Given the framework set out in the current legislation, we believe it is right that it continues to be the case that the people whose consent is required as to what happens to the child as regards a placement or adoption order, and the people on whom the court must rely and seek consent from must be the parents and the guardians of the child.
I hope that that will reassure the noble Baroness that the relatives and others whom she is concerned about will be involved in the proper consultation processes and their views will be taken into consideration, and that under the circumstances that will be sufficient to meet her objections in the amendment.
§ Lord Campbell of AllowayI wholly accept, and I shall be brief, what has just been said by the noble Baroness. I had been thinking about it for some time before she said it. It must be the parent or the guardian; for various reasons you cannot go outside that. Furthermore, how on earth are you going to define the proposal? Who is "another person holding responsibility"? How will that be defined? Will it be by statute or by common sense? If it is common sense, what does it mean, how wide is it? If it is by some statute, it is a statute that was not designed for this purpose.
§ Baroness BarkerI am grateful to the Minister for her considered answer and also to the noble Lord, Lord Campbell of Alloway, for proving that we are 145GC not always in league in the Bill. In answer to the noble Lord, Lord Campbell, I believe that the phrase "parental responsibility" is well understood in family court matters.
I take the point made by the Minister. I listened with great interest to what she said about the limitations of residence orders and I will bear those in mind when we discuss Clause 44 in greater depth.
I take the Minister's point about the need to ensure that a limited number of family members can agree to adoption, but in withdrawing the amendment I reiterate that the reality of family life and family structures is a good deal more complex now than it was in 1976. I will go away and study her words with care, but I am not absolutely and wholly convinced that she has got it wholly right. I accept that there may be limitations to the amendment, but I still believe that there is an issue there to which I may wish to return at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
§ Clause 19 [Advance consent to adoption]:
§ [Amendment No. 52A not moved.]
§ Clause 19 agreed to.
§
"ADOPTION AT BIRTH OR WITHIN THREE MONTHS THEREAFTER
§ The noble Earl said: This new clause is designed to create a fast-track procedure for the placement and adoption of very young children. It has been remarked that the Bill is very valuable in helping to tackle the real problems of large numbers of older, looked-after children who need to be given better chances of adoption, and I am sure we all say amen to that. However, we need to remember baby adoption as well. Baby adoption has become a much smaller part of the adoption scene over the years and the traditional mother-and-baby homes, which did such a sterling job in supporting mothers whether they wished to keep their babies or to place them for adoption, are now an endangered species. There are none left in the south east of England.
§ Is the Minister satisfied with the ability of local authorities and other agencies to support mothers who choose to have their children adopted after birth? The effectiveness of those services will determine how 146GC quickly a baby can be placed after birth. There is no dispute that the sooner a baby is placed with prospective adoptive parents, the better that will be for the child. The problem of children moving between foster homes applies equally to babies. One study found that some infants under 12 months had four or more moves which were not at the request of the fosterers. The long-term effects of that are incalculable. It must be right to place a baby with adoptive parents as soon as possible. That is what the first subsection of the new clause seeks to do.
§ The second subsection relates perhaps to a minority of cases, but it allows the local authority to dispense with the consent of the parents or guardian and place a child under three months old without having first to obtain a placement order. Clearly, that would occur only in extreme circumstances, and a placement should be obtained as soon as practicable. That will facilitate the immediate placement of the baby.
§ The new clause amends the Bill in what I believe is a relatively modest way but the idea behind it is important. It would ensure that the needs of very young children are paramount. The child will be placed as rapidly as possible so that the child's life is not disfigured by one or more moves before a permanent home is found.
§ I hope that the Minister will be sympathetic to the intent behind the amendment. I beg to move.
§ 5.15 p.m.
§ Lord NorthbourneI rise briefly to support the noble Earl.
He referred to the importance of the first year or two of a child's life. I am sure that the Minister and the Committee are aware that new research over the past decade or two based on much more powerful scanners than were ever available before has enabled neurologists to look at the development of the child's brain. To give just two statistics, at birth the child already has approximately 50 trillion synapses in the brain already developed. During the first two years of life, that increases 20 times to 1,000 trillion synapses. During that period, if the child is exposed to, for example, violence, neglect or even to seeing the violence of its parents, which cause its defence mechanisms to develop, gradually those become hardwired into the child and leave him or her with a tendency to violence, disruption, anger and an inability to control their anger. There are other things that can arise from the parenting environment in which the child lives during the first two years. I therefore enormously support the noble Earl, Lord Howe, in asking if we can devise, with due consideration of course to the rights of the parents, a way to get those baby children adopted as quickly as possible.
§ Baroness Gould of PotternewtonI rise briefly to support the amendment because I am concerned about the movement of very small children. It has a seriously detrimental effect on them. However, the noble Earl, Lord Howe, said that this should only happen in extreme circumstances and I understand that, but will 147GC he define what he perceives as extreme circumstances under which the consent of the parent or guardian could be dispensed with?
§ Baroness Thomas of WalliswoodWe, too, are very aware of the damaging effect on even very small babies of being moved from person to person and in particular the effect it has on their capacity later in life to make relationships. I am concerned about subsection (2) of the amendment. The idea of taking a child away from its parents without consent at birth resonates in people's experience in a heart-rending way. There have been many people in the past whose children for one reason or another were taken from them at birth, certainly not for any reasons that, I hope, any social worker today would remove a child. The mothers of illegitimate children, for example, had their children removed from them, in some cases even before they had been allowed to see the child. There are therefore some very sensitive issues here and I hope that the noble Earl will expand a little more on them in support of what the noble Baroness has just said. Perhaps the Minister will also be able to respond to these difficult issues.
§ Lord Campbell of AllowayI rise briefly to support this measure. It is essential and it is part of the process which is not part of the Bill. As regards subsection (2), the steps of the Temple Church have for hundreds of years been a repository for unwanted babies. We have taken them in and fed them and had them nursed. There was a special nurse who used to look after them. Then I do not quite know what happened to them, but I presume that some of them were adopted. This sort of provision would enable that to be done. We still actually get one or two babies—if the Committee is interested—on the steps of the Temple Church. No way will you find the parent. There it is.
§ Earl HoweBefore the Minister replies to my amendment, perhaps I could add a few more remarks to those I made earlier in response to questions that have been raised.
I have been asked about the circumstances in which subsection (2) would be triggered. One of the sets of circumstances would be those to which my noble friend Lord Campbell has helpfully alluded, where one has a very young child who has been abandoned and nobody can trace the parents. It seems to me that that kind of case is one where a placement should be made, albeit unofficially, as soon as possible for the child's own benefit.
I readily concede, however, that the subsection should be expanded and enlarged. As it stands, it raises the spectre of local authorities taking babies away willy-nilly without due cause. There is no test that is specified or anything like that.
I hope that the Minister will regard the amendment very much in the nature of a probe. Clearly, the kinds of case that I had in mind were where the child was at risk of significant harm. There is nothing final about what the subsection suggests. There is no question of 148GC an adoption order being made without parental consent, or .anything like that. It is simply for the benefit of the child to be put out of harm's way.
If, as I concede, the Minister feels that the subsection is not adequate as it stands, nevertheless, work can be done on it. I hope that it wilt provide a useful hook for debate—it already has—and that the Minister will see the merit of the intent, if not the letter.
§ Baroness AndrewsIt is such a relief to have someone else being quizzed on their amendment. Speaking on behalf of my noble friend Lady Gould, I thank the noble Earl very much for that description of how the subsection might be improved. I am hesitant to abandon my speaking notes because they go further than the proposed new clause.
I say to the noble Lord, Lord Northbourne, that he mentioned an interesting matter. We know more about the brain now. We have learned more about the brain in the past five years than in the past 50 years. There is some extremely interesting research on childhood development which emphasises the importance of getting these processes absolutely right with due regard both to the welfare of the mother, but particularly to the welfare of the child.
It has been a thoughtful and moving debate. I am grateful to the noble Earl, Lord Howe, for giving us the opportunity to have such a debate. I am sorry to hear that children are still being abandoned on the steps of the Temple Church. That is a matter for grave reflection.
I turn to the impact of the amendment. Let me stress that absolutely nothing divides Members on any side of the Committee as regards the motivation to make the safe care, placement and adoption of very small babies as speedy and as secure as possible. That is definitely the intent of the Bill. It is an exceptionally important issue, despite the fact that the Bill has been devised to modify adoption requirements. That need has arisen due to the difficulty of placing older children who are in care, and due to changes in society which have resulted in there being fewer younger children available for adoption. However, that does not mean that they are any less important, far from it.
The proposed new clause addresses that issue. Indeed, in the other place, the Government also tabled amendments to make provision for the cases we are discussing. If I may, I will explain how we have already strengthened the Bill in that respect in relation to some of the noble Earl's concerns.
I want to demonstrate that the Bill's provisions allow, in a genuinely appropriate manner, bearing in mind the range of interventions that are possible, for the placement of a child after adoption. We do not know how many small children are voluntarily relinquished at birth for adoption. However, we do know that there is a change in attitude towards single motherhood and that numbers are fewer.
Clause 51(3) provides:
Any consent given by the mother to the making of an adoption order is ineffective if it is given less than six weeks after the child's birth".149GC That is intended to ensure that, in the crucial period after giving birth, for the next six weeks the mother is not harassed in any way to give consent for the adoption. The mother needs time to think and to talk to supportive people around her, whether they are from family or the appropriate agencies. Medical and social work advice must be given continuously for that minimum period before the mother gives formal legal consent. We have built in that protection for the young mother.However, like the noble Earl, we believe that it is very important to enable babies to be placed for adoption when very young, as securely as possible, when it is in the best interests of the child. We are already taking action under current legislation to try to ensure that that happens. The National Adoption Standards set a clear timetable for finding a new family for a child under six months where a parent has requested that he or she be placed for adoption. That is a significant advance.
We have also stated that a match with suitable prospective adopters should be identified and approved by the adoption panel within three months of the agency agreeing that adoption is in the child's best interests. It is a short timetable but, given the number of families that are looking to adopt small babies, a realistic one. The Government have made it clear to local authorities that we expect those timetables to be met by 1st April next year.
We expect the majority of children to be matched more quickly than that. It inevitably takes longer to find an appropriate match for a child with specialist needs or a mental or physical disability. However, for other children, we expect a great deal of work to be done with the birth parent before the birth of the child. That is how it should be and that is what we expect. The draft practice guidance to support the National Adoption Standards encourages as much counselling and support as possible to be given to the birth parent before the birth. That will obviously raise questions as to whether there are people within the wider family who can adopt the child. It will ensure that the mother will know all the options and will not feel that she is being pushed into a corner where there is only one choice.
It is important that the new legislation does what it can to support the rapid placement for adoption where that is in the child's best interest. That is exactly what the proposed new clause and the Bill's provisions seek to achieve.
The proposed new clause seeks to tackle two situations: first, to enable baby placements where the parents consent; and, secondly, to allow for placement where there is no consent. Let me set out how we propose to address both those options. As to the first situation, we entirely agree that, notwithstanding what I said earlier about the six-week time limit for giving formal consent, it is important to provide a route for rapid placement where the parents agree and the agency agrees that it is in the interests of the child.
150GC Clause 17(1) allows adoption agencies to place a child under six weeks for adoption without the formal consent given under Clause 18 for the reasons I have given. They will do so with the agreement of the parents. The arrangements for securing the agreement will be set out in regulations and guidance. As to in-depth counselling and so on, we will be able to consult with the agencies on the nature of those consultations.
These provisions will allow young babies to be placed for adoption quickly, within that critical six-week period, provided that all the safeguards have been met. Once the six-week period is up, however, the agency has to secure formal consent and if it fails to do so the authority to place will cease unless the agency is a local authority and feels that a placement order would be justified—and there is no parental consent.
In the meantime, such placements have to be entirely voluntary and the provisions in Clauses 25 and 26 for securing contact apply to those placements as they do in all others under Chapter 3. Adoption agencies are under the same duties in respect of these young placements as they are for everything else. The only major difference, which is a safeguard again for the birth parent, is that during that critical six weeks before formal consent is obtained, parental responsibility is not shared with the agency or with the prospective adoptive parents. We believe that it is not appropriate for that major decision of giving parental consent away in any sense to take place before the six-week period. In a way, that reinforces our problem with the present construction of subsection (2) of the new clause.
Clauses 29 and 30 provide that the parents can request the return of the baby at any time and the agency must return the child within seven days of any request unless a placement order has been applied for. What we have tried to achieve, therefore, is both speed in terms of the situation of the child and also safeguards on the rights of the parents not to be harassed, to have the right support and to make the right decision. However, after six weeks, the proper consent has to be obtained. In the meantime, that young mother is entirely responsible for her child.
This brings me to the second situation, which, as Members of the Committee have already indicated, is where there are considerable issues and I am grateful for the support of the noble Baroness, Lady Thomas. As I read it, local authorities can place children for adoption without parents' consent where they are satisfied it should be dispensed with, pending the resolution of a later application. That cuts across the principle set out in the Children Act, that there needs to be a clear threshold before the state intervenes in family life; before it takes such a drastic step. That should be sanctioned by a court, not left to an administrative decision. Even if it is for a short time, it still needs to be done with the sanction of the court and those processes need to be followed.
The noble Earl's clause would enable placement against the parents' wishes purely as a result of an administrative decision by a local authority with court sanction, though there would be no guarantee that the 151GC court would not reverse the authority's judgment in that. The combination of the Bill's provision and the Children Act, therefore, already provides an appropriate route in those unfortunate cases where the local authority genuinely believes that it has to take rapid action for the safety of the child after birth. Where it feels that a child is at risk, it can apply immediately for emergency protection orders, for an interim care order, and it could after six weeks, and with the consent of the parent, apply for a placement order to follow on shortly.
In such cases, it would be aware in advance that there was a potential threat to the child. Social workers know these cases, by and large. They know the family history, the situation of siblings and the relationship, so they would, in the great majority of cases, know the situation that they were dealing with—often, sadly, because of what has happened to other children in the family. They ought therefore to be able to assemble much of their case. If they have to make an application shortly after the child is born, I know that the courts will be making every effort to resolve those issues quickly for all the reasons that Members of the Committee have given.
I believe that the noble Earl's proposal goes too far in these cases at the moment. In addition, there may not always he an appropriate family available so we need flexibility to allow for initial short-term foster care.
I was however very struck by the evidence about the frequent movement of those children, which is obviously not something that we want to see. It also allows time for the adoptive parents to be found—and that may take longer.
I am grateful to the noble Earl for his offer to reconsider the clause in the light of what has been said. There is additional help available to plan concurrently for these situations, which makes it clear with very young birth parents and prospective adopters that there are parallel ways of looking at what might be done. If Members of the Committee would like further information about that, I would be very happy to provide it. I hope that under the circumstances the noble Earl will feel happy to withdraw the amendment and I am grateful to those who have spoken in this debate.
§ 5.30 p.m.
§ Baroness Howarth of BrecklandBefore the noble Baroness sits down, I should like to ask for absolute clarification on one point. Does this mean that under Clause 51(3) in no circumstances could a child be placed in a home with a view to adoption under six weeks? I think of the situations described by the noble Earl, Lord Howe, where there may be another court order under the Children Act; for example, where a mother may have failed to protect previous children from significant harm and there is a real danger for the child. Surely we would then want to prevent that child being moved from one place to another and there are 152GC adoptive placements for babies under six weeks. There are very few counties where there is not a waiting list for small children.
§ Baroness AndrewsNo, the Bill does not prevent that happening. It simply provides that during that six-week period the relevant agency will look at what is in the best interests of the child for that period. It may be that he will be placed with a foster parent or in a care home on a temporary basis.
§ Earl HoweI thank the noble Baroness, Lady Howarth, for that helpful intervention. I also thank all Members of the Committee who have spoken in this useful debate, particularly the Minister for her gentle reply to me. She fully understands the motivation behind the amendment.
I have my doubts about the extent of the expertise present in some, if not many, local authorities to deal with the concerns of mothers who wish to have their very young children adopted, perhaps even before the baby is born. There is a need for a service for women with unplanned pregnancies. The fact is that some women do not want to have the baby they are expecting, nor do they want to have an abortion. Baby adoptions run currently at around 200 a year from care. Most of those entries into care and adoptions will not have been planned properly or very well at all. There is very little social work expertise left in this field and it is very difficult for women to get help while they are pregnant.
I think back particularly to an extraordinarily interesting meeting that the All Party Group on Adoption, of which I am a member, had last November when we heard from an organisation called ASIST—Adoption Support in Society Today. The representative of the organisation explained its role. It is a voluntary, independent adoption support group formed in 1993. It runs a telephone helpline and it became a registered charity last year. Its aims are to make people aware of adoption as an acceptable choice and as a successful alternative for a mother and child. Although ASIST is a very small organisation based in Somerset, calls come in from all around the country and, indeed, sometimes even from abroad. Most of the callers said that they knew nothing about the way adoption works or who to turn to for assistance in answering their questions. Those who tried to seek advice from midwives, medical social workers or GPs invariably found that those people did not know the answers, even to basic questions such as: "What happens if I decide to have my baby adopted?".
Others reported a negative response of the kind that said: "It is very early days, you will change your mind by the time the baby is born". Many mothers may indeed change their minds but, at the time of the inquiry the response they received was probably a euphemism for, "I don't know the answer", or perhaps even indicated a judgmental attitude, which, I am sorry to say, is common to a number of healthcare and social work professionals who simply do not agree with the idea of adoption at all. It was stated to us that they knew of social services departments which 153GC claimed that baby adoption was not part of their ethos, and there were others who said that there was not really a call for that kind of service, despite it being a statutory obligation to provide it.
The number of babies being adopted from care was stated to be 200 under the age of one and 1,600 between the ages of one and four during the year 2000. That suggested to us that social workers and other professionals are over-optimistic about the ability of teenagers or other single mothers to parent. Had they been properly counselled and received support and encouragement in their decision, some infants might have been prevented from being in the care system at all. So it was against that kind of background that the amendment was tabled.
I do not believe that it cuts across Clause 51(3) because it does not refer to an adoption order. The second subsection, at least, refers to a placement order. The first subsection, of course, refers to adoption but with the consent process built in. I understand where in that context Clause 51(3) cuts in, but I do not believe that what the noble Baroness said dealt with the issue, for example, of foundling children. Furthermore, although she referred to interim care orders, she did not fully take on board the fact that local authorities already have the power to come into a mother's hospital bedroom and take babies away at birth. They do so only for very good reason, where there is a perceived risk of significant harm, but the device of obtaining an interim care order or an emergency protection order is there.
The point I sought to make in my earlier remarks was that putting a baby in that position and then shunting the baby from pillar to post thereafter is a deeply unsatisfactory process. Why not recognise that there are rare cases where babies need to be protected from harm and try to create stability from day one?
A possible amendment to my amendment in subsection (2) might be to say that the procedure I suggest could take place only with the leave of the court, or something like that. However, I shall give the matter some further thought. I should like to conclude by thanking the noble Baroness, Lady Thomas, the noble Lord, Lord Northbourne, and the noble Baroness, Lady Gould, for their helpful remarks earlier on in the debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 20 [Placement orders]:
§ [Amendments Nos. 53A to 54C not moved.]
§ 5.45 p.m.
§ Baroness Thomas of Walliswoodmoved Amendment No. 55:
Page 14, line 15, at end insert "and every effort has been made to inform each parent or guardian or other persons holding parental responsibilityThe noble Baroness said: I rise to move this amendment, the meaning of which is self-evident, conscious of the fact that the Minister made some reference to this matter in reply to an earlier group of 154GC amendments. I would like to make sure that we are satisfied that every parent, guardian or other person holding parental responsibility is searched for and contacted.This is perhaps a little beside the point, but I learned something recently which everybody else in this room may already know; namely, that in some families of African origin, but not all of them, the responsibility for the family goes down the mother's line; in others, it goes down the father's line. In many cases in such families, the natural person to take over the care of a child, if the mother's care fails, is the grandmother. My noble friend has referred previously to the importance of grandmothers.
I realise that that is slightly beyond the point, but there is a tradition in some communities as regards who holds subsidiary parental responsibility, as it were. There is a real meaning to those words, at least in some communities, although perhaps not in all. I beg to move.
§ Lord Campbell of AllowayI support the amendment, save, of course, for the reasons I gave about other persons holding parental responsibility. But it is obviously an important addition to have in the statute that every effort should be made in this regard. I think that that is a constructive amendment.
§ Lord Astor of HeverI agree with what my noble friend Lord Campbell of Alloway has said.
§ Baroness AndrewsI fully appreciate the intention behind the amendment, which we touched on in an earlier debate. The amendment aims to ensure that the court cannot make a placement order unless every effort has been made to notify the parents and everyone else with parental responsibility. The arrangements for notification are set out in Clause 136, which provides that the court rules must require certain persons to be notified of the date and place where the placement order application will be heard and of the fact that unless the person wishes or the court requires, the person need not attend. That is clear.
The people who have to be notified are those whose consent is needed for the making of the placement order, in so far as they can be found. Under the Bill, the people whose consent is required are first, the natural parents who have parental responsibility. Under the Children Act 1989, mothers have automatic parental responsibility, as do married fathers. Unmarried fathers can acquire parental responsibility either by marrying the mother of their child, or, under Clause 4 of the Bill, by agreement with the mother or by a court order. Under Clause 108 of the Bill they will also acquire parental responsibility automatically where they jointly register the birth with the mother.
Secondly, as we said previously, any guardian of the child. That means a guardian who may be appointed under Section 5 of the Children Act to act in the event of the parent's death. Once the Bill becomes law, this will also include a special guardian. Those are the only 155GC people who can consent to the adoption of the child, as we have said, or to a placement order or to an adoption order.
Other people may have parental responsibility, and indeed it is possible for parental responsibility to be shared. But, as we said earlier, it would not be appropriate for those people who are not the parents of the child or the guardians to consent to adoption or to a placement order.
The sharing of responsibility comes into play, for example through a care order where a local authority has parental responsibility. But under the current legislation a local authority cannot give legal consent to the adoption, nor would it be appropriate for it to do so. The same argument that we reiterated earlier holds where the child is under a residence order made in favour of someone other than a parent.
Clause 136—and this comes to the point which was made by the noble Baroness, Lady Thomas—provides that if none of the persons whose consent is required can be found, then any relative prescribed in the court rules who can be found should be notified instead. "Relative" is defined in Clause 139, and means in relation to a child, their grandparents, brothers, sisters, aunts and uncles, whether by full blood, half blood or by marriage. Those are the people who formally should receive notice of the placement order hearing.
The question has been raised as regards the position where the parents are separated, or one cannot be found. The agency needs the consent of all parents with parental responsibilities to placement for adoption. If one or other of them cannot be found, the agency will have to take all reasonable steps to find the other parent. Where it cannot find the other parent, the agency will have to consider seriously if it is still in the best interests of the child to be adopted. Those would be the sorts of cases where the agency would seek the guidance of the court. If we have a situation where one or neither parent can be found, there is obviously a serious issue to be resolved on behalf of the child.
I want to reassure the Committee that that is not the end of the story. I anticipate that the concern may be to ensure that other individuals holding parental responsibility—people who are significant in terms of the child, as we discussed earlier—are also properly involved in the adoption process. It is certainly our intention that they should be. When an adoption agency is considering whether a child ought to be placed for adoption, and therefore whether it should apply for a placement order, it will be bound by the duties set out in Clause 1. That includes, in Clause 1(4)(f), considering the child's relationship with any relatives, and with any others who may be of significance to the child.
The agency has to consider the wishes and feelings of these people, and their ability to care for the child and offer him a stable and secure home. That is part of the process of care and identification that occurs before the issue of placement order or adoption is even considered. The process will be set out in the adoption 156GC agency regulations and in the guidance. In that respect it will follow the Adoption Agency Regulations 1983 which already set out that as part of the consideration the agency must establish whether there are any holders of parental responsibility under Section 4 of the Children Act.
In considering the placement order, the court will have access to the agency report on the recommended placement, which will in future, as the current Schedule 2 report does, cover the child's relationship with his family and others of significance to him, and report on any alternatives to adoption considered. The court will also be bound by the duties under Clause 1(4)(f)in a similar manner to the agency, and will have to consider the child's relationship with his relatives and anyone else of significance to him. The court also has to consider, under Clause 1(6), all the alternatives to adoption.
I hope I have reassured the Committee that, while we do not consider that there needs to be formal notification given to all those with parental responsibility for the reasons given, we are clear that the views and wishes of all those with a significant relationship with the child must be considered by the court and by adoption agencies well before any court proceedings take place.
To reiterate the point about unmarried fathers, under the 1983 adoption agency regulations the local authority must make reasonable efforts to contact the unmarried father if it thinks it is in the child's best interest. We will place a similar requirement on agencies in the new regulations to be bound by good practice in that respect.
§ Baroness Thomas of WalliswoodThe Minister has given a very full and sympathetic response to the amendment which has covered all the situations mentioned in our brief debate. I thank the noble Lords, Lord Campbell of Alloway and Lord Astor of Hever, for supporting the amendment. I am sorry that the noble Lord, Lord Campbell, still does not recognise legally the existence of other persons holding parental responsibility. However, I am comforted by the fact that the Minister takes a marginally different view on the matter.
There is an issue in relation to fathers who deliberately absent themselves from a relationship on the birth of a child so as not to damage the interests of the child and may be difficult to contact for that reason. I shall look very carefully at everything the Minister has said about the various means of contacting whoever might legally have responsibilities. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Astor of Hevermoved Amendment No. 56:
Page 14, line 18, at end insert "or 34(1) or (2)The noble Lord said: In moving Amendment No. 56 I shall also speak to Amendments Nos. 60, 61 and 68. Clause 20(4)(a) relates to a placement order continuing until it is revoked under Section 23. Amendment No. 56 would require that it should be revoked either 157GC when a child is returned to local authority care by the prospective adoptive family or at the will of the adoption agency. This would mean that the child's case is examined closely at the revocation. Otherwise, the danger is that the child comes out of an adoptive placement and drifts in the care system without a proper plan in place.The very fact of the placement coming to an end means that the child will have had a very difficult time. First there was the hope of a permanent family who would love and cherish the child; then a period of deep disillusionment when those hopes were going wrong; and then the finality of the relationship breaking down to such an extent that it had to come to an end. A child cannot come out of that unscathed. It is only right that the placement order comes to an end after which the child can be properly reassessed to ensure the best planning for his or her future.
Amendment No. 61 attempts to strengthen the right of appeal or review throughout the system. Clause 23(2) gives the right of an application to revoke a placement order to the child and the local authority but not to others—for example, the birth family or the adoptive family—without the court's leave. However, subsection (3) then cuts off the avenue of gaining the court's leave by saying that there has to have been a change in circumstances. The birth family might have wanted to revoke it from the start but would now have to prove some substantial changes in the lives of those affected. The removal of this section would allow the birth or adoptive family to ask the court's leave to revoke the placement without having to prove any change in circumstance. Amendment No. 60 is in line with Amendments Nos. 56 and 61.
Placement orders do not specify the putting of a child into a particular family. A child can be placed with any family that the adoption agency sees fit. This could in theory mean that a child with a placement order might not be in an adoptive placement but in a temporary foster placement awaiting an adoptive placement.
Amendment No. 68 attempts to redress that danger if—in the circumstances envisaged in Clause 34, where a child's placement for adoption breaks down—the child would return to care, and that is likely to be a fostering arrangement, and be in peril of drifting in the system. The amendment would force the authorities and the courts to examine the child's case, and if adoption still seemed appropriate for the child—it may not, as any placement breakdown is extremely damaging to all concerned—a new placement order would have to be sought.
If adoption agencies know that they would have to establish the case for adoption again, it is more likely that they would work harder to find the right placement the first time and ensure that they support that placement to the best of their ability. It would also encourage the proper giving of information to prospective adopters. The lack of this is a huge contributor to breakdown because, if people are not forewarned of the circumstances of a child's past, there is little hope that they will be able to plan for and deal 158GC with that child. All this is very much in the interests of the child. Moves, placements, broken relationships and fractured trust are thoroughly harmful and result in long-term damage. I beg to move.
§ 6 p.m.
§ Baroness AndrewsAs we have gone through this afternoon discussing the various amendments, I have been impressed by how deeply and seriously people feel about what happens to children before the process of placement, during placement and following the outcome. That is certainly reflected in this group of amendments with their expression of concern about drift and the implicit delay in what happens to children. It is to the credit of all noble Lords that we return to this issue time and again.
These amendments concern what should happen to placement orders when an adoptive placement is terminated, and they also cover the circumstances in which orders may be revoked. We are aware of concerns that authorities might not always act in some of these situations and that they might allow children to drift on placement orders. I shall try to address some of those points.
I shall try to describe the amendments as we understand them. Amendments Nos. 56, 60 and 68 concern what should happen in circumstances in which an adoptive placement under a placement order breaks down, either because the prospective adopters return the child, which can certainly happen, or because the local authority itself decides to remove the child from the placement.
The amendments address a substantive issue for the reasons that many noble Lords have already given. What we are trying to achieve in the Bill is security of placement. That is why we want to bring the process of negotiation with the birth parents further forward to an early stage where everyone knows the options and what is in the best interests of the child. We would expect the local authority to review this situation very thoroughly, and, when there is a breakdown, to determine whether they still believe that the child should be placed for adoption and whether there is an alternative. There may be something in the situation itself which contributes to the breakdown and means that adoption is no longer appropriate.
If the local authority concludes that the child should no longer be placed for adoption, it can discharge the placement order. That is a very powerful safeguard, especially when it is combined with the new independent reviewing officer system which is coming in with the amendments to the Children Act under Clause 117.
We are also trying to avoid being too rigid in primary legislation, simply because of the variety of circumstances. That is one reason why we have advocated that there should be the concept of placement without a placement order. It comes back to the arguments we had at the beginning of the Sitting. There may be a great deal of difference between a case in which the adopters decide to return a child—it may be a very difficult child; there may be all sorts of 159GC reasons—and a case in which the local authority decides to end the placement because it has made a bad judgment about the prospective adopters.
It may be that the local authority is clear that the child should still be placed for adoption and that it is a question of finding the right family. In that case, it would be neither helpful nor in the interests of the child to require the local authority to return to the court. It is a part of the argument for delay, but it can also be argued that we need flexibility to allow the agencies to reconsider some of the options that they have which do not involve the court process.
I take the points made earlier by the noble Earl, Lord Howe, about the variable practices in local authorities as regards the specific provision made for young mothers and so on. However, in their role as adoption agencies—the National Adoption Standards will help in this regard— properly regulated and performance-managed, with the raft of measures in Clause 1, to which my noble friend Lord Hunt referred, they will have the appropriate skills and scope to undertake the detailed management of adoptive placement and to decide what is best for the child.
We should show some confidence in that capability and not require them to be second guessed by the courts. It will be very undermining, not to say demoralising, if at the back of every decision the local authority makes is a sense that the court will come to the rescue. It inhibits best practice, if anything.
That balanced approach is taken in the Children Act—again, the noble Lord, Lord Clement-Jones is not in his place to hear me say the word "balanced" ßžand it is appropriate in this legislation.
Amendment No. 56 would require that an existing placement order is automatically discharged when a child is either returned by the prospective adopters under Clause 34(1) or where the decision has been taken to remove the child. Amendment No. 60 would, in the same circumstances, require the local authority to apply for another placement order if it still considered that to be the right choice for the child. Amendment No. 68 is linked and would require any existing placement order to be discharged either when the prospective adopters decided they wished to return the child or the agency decided for itself that it was not satisfied with the adopters and it notified them that the child must be returned.
The net effect would be that where the child was placed for adoption under a placement order and it broke down, the existing placement order would automatically be discharged and everyone would go back to the court. That would reduce the flexibility of the Bill.
As it is currently drafted the Bill provides for local authorities to do what is in the best interests of the child and allows them to consider all the options. We would expect the agency thoroughly to review the case and to consider whether there are options other than adoption.
160GC If the child has been placed for adoption under a placement order and the authority considers that that is still the best option, it can then act swiftly and use the same authority and the same placement order to place the child in another setting; it does not have to go back to the court, with the associated delay and distress. It is a very distressing business for a child to know that, whatever decision has been taken, he is once again involved in a trip back to the court. Even if the child is quite young, he will be aware of its significance. We should bear that in mind.
The general authorisation to place, given by placement order, was widely welcomed in the detailed consultation on placement conducted by the previous administration. The responses were strongly in favour of general rather than specific placement orders because they give additional flexibility. The purpose of placement orders, therefore, is for the court to decide that placement for adoption is in the best interests of the child. The judgment is that while the quality of the placement is absolutely essential, the identity of the prospective adopters need not be absolutely satisfied, either when the child is already placed or possibly where a suitable match has provisionally been identified. The court is being asked to take a decision in principle that the child ought to be placed, not with whom the child should be placed. That is the focus of the placement order.
These amendments create an additional, unnecessary inflexibility, and I hope that I have made the arguments clear to noble Lords.
I turn to Amendment No. 61, which deals with the related issue of the conditions that have to be met before an application may be made by anyone other than a child or the local authority to discharge a placement order. Clause 23 provides for placement orders to be revoked on application to the court. The local authority can apply to revoke a placement order at any time. That is to allow for all eventualities which might arise when the local authority considers that the child should no longer be adopted, circumstances having changed.
A child, or someone acting on his behalf, can also apply at any time for a placement order to be revoked. That adds considerable flexibility. Otherwise, an application to revoke a placement order may be made only with the leave of the court, and if the child is not yet placed for adoption. The court may grant leave only if there has been a significant change in the birth parents' circumstances since the order was made. Anyone may apply for leave, including the child's birth parents.
Amendment No. 61 would obviously remove the test that there must be a significant change of circumstances before the court could grant leave to apply to discharge a placement order. The requirement that there must have been a change of circumstances before the parents or others might apply is intended precisely to prevent the court from being invited simply to repeal the deliberations that have taken place. The considerations will have been mulled over at different stages of the process.
161GC It seems unfair to us to expect that decision to be reversed unless there is a significant change of circumstances to which people can point and say, "A decision is justified on those grounds".
In making the placement order, the court will already have been obliged by Clause 1 to consider all the alternatives and to take account of the views of the child's relatives and their capacity to provide a stable and secure environment. The placement order will reflect that.
We believe that it is right in the interests of promoting the security of the child, that the court should consider whether those circumstances have changed before it looks at whether or not to reverse that decision. The alternative would be that at any stage after the making of the order, before the child was placed for adoption, the parents or anybody else would seek leave as if nothing had changed. It would merely cater to whim.
As we are concerned about disruption, I believe that that would be needlessly disruptive. The provision is a way not only of minimising that, but also of collectively saving time and resources, and having regard to the processes that are gone through, and particularly the impact on the child. One of the main aims of the process is to try to increase security.
Despite the thoughtfulness of the amendments, I hope that Members of the Committee will understand why we are not minded to think that they are an improvement to the Bill in that form.
§ Lord Astor of HeverI am very grateful to the Minister for that full reply. There is a great deal to digest in her response, and we will go away and think about the issues very carefully. I was heartened by what the Minister said about wanting to avoid any drift or delay on the placement orders at all costs. That is very important. I heard what she said in the context of Amendment No. 56 in not wanting to be too rigid in primary legislation. As regards Amendment No. 68, I accept that a trip back to court is to be avoided if at all possible for a child.
We do not accept that the amendments add a great deal of inflexibility. We would want to consider them carefully and come back at the later stages. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 6.15 p.m.
§ Baroness Barkermoved Amendment No. 57:
Page 14, line 19, after "adoption" insert "or special guardianshipThe noble Baroness said: I should perhaps begin by explaining that my colleague, the noble Lord, Lord Clement-Jones, has left to keep a very longstanding engagement. Perhaps he was bowled over by the Minister's eloquence.Amendment No. 57 in a slightly different format was moved by my honourable friend in another place, Sandra Gidley. That was answered by the Minister in 162GC another place, Jacqui Smith, but having read her words, I do not understand why a placement order should stay in force and then be revoked when an adoption order is made, but not when a special guardianship order is made.
I realise that we have not so far in our deliberations spent much time on special guardianship and I know that we will do so later. My broad understanding of special guardianship, as I read it in the Bill, was that it was not a placement but a new form of relationship which is—I hesitate to say on a par with adoption but which has clear continuing ties to birth parents. As I read it, it was one of the clearest things in the Bill.
I cannot therefore understand why an adoption order should lead to the revocation of a special placement order and a special guardianship order should not. I do not understand from the Minister's answer in another place why it was felt necessary that there should be recourse to the courts to revoke a placement order in the case of special guardianship, but not for adoption. Therefore, this is a probing amendment to ascertain the status of special guardianship with regard to placement. I beg to move.
§ Lord Hunt of Kings HeathI understand that this is a probing amendment and, of course, as the noble Baroness, Lady Barker, suggested, we will be debating special guardianship orders in detail later. However, it might be useful if at this stage I explain briefly what these are and how the provisions relating to them and to placement will work, before responding to the specific probing amendment that the noble Baroness has put forward. Clause 112 of the Bill makes provision for a new special guardianship order under the Children Act 1989. I stress that this is under the Children Act 1989 and not under the Adoption and Children Bill that we are now considering.
The idea of a new status was proposed in the Performance and Innovation Unit report following the Prime Minister's Adoption Review in July 2000 and received widespread support in the public consultation that followed. The Government subsequently gave a commitment in the White Paper, Adoption: A New Approach, to develop a new legal option called special guardianship, which is aimed at meeting the needs of children for whom adoption is not appropriate, but who could still benefit from a permanent, legally secure placement.
We know that children value the sense of legal security and permanence that can come with a court order. The intention is therefore to give the special guardian clear responsibility for all the day-to-day decisions about caring for the child or young person and for taking decisions about his or her upbringing. But unlike adoption, the order retains the basic legal link with the birth parents. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. The birth parents retain the right to consent or not to consent to the child's adoption or placement for adoption.
The White Paper suggested that special guardianship might be appropriate for some older children who may, for example, be being looked after 163GC in long-term foster placements and who do not wish to be legally separated from their birth parents but could benefit from greater legal security and permanence. It might be appropriate for some children being cared for on a permanent basis by members of their wider family. Additionally, some minority ethnic communities have religious or cultural difficulties with adoption as set out in law.
In those circumstances at present, such children would probably be looked after either by local authority foster parents or informally. Where adoption is not appropriate, the only alternative legally secure option available is a residence order.
The new order is intended to offer more than a residence order in terms of the security it brings and the support package that may be provided. It is designed to be flexible enough to work in a range of situations—including, for example, where there is extensive and regular contact with the birth family—and in instances where that would not be appropriate but where it is nevertheless desirable to retain the basic legal link between the child and the parent.
The Government want to see this new order used successfully. Therefore, we are placing in the Bill a duty on local authorities to make arrangements to provide support services for special guardianship placements. We anticipate that these support services will operate in a similar manner to adoption support services.
The new provisions have been widely welcomed as offering a positive new option for delivering permanence for children. We intend to consult widely on the rules, regulations and guidance that will accompany the implementation of these provisions.
As for the relationship between special guardianship orders and placement orders, Clause 28(5) provides that where a placement order is in force, no special guardianship order may be made. We come to the nub of the issue raised by the noble Baroness, Lady Barker. The reason for this is that where a placement order has been made, the court has taken a decision that the child ought to be placed for adoption, having considered all the alternatives, which would include special guardianship, and having considered the views and wishes of those who have significant relationships with the child, in line with the duties set out in Clause 1.
One of the intentions of the placement system is to increase the stability and security for prospective adopters and for children placed for adoption once the decision to place has been made by shifting the point of that decision to earlier in the adoption process. We have already discussed some aspects of that. Where that decision has been properly made—in this case by a court making a placement order—we believe that the placement should be protected. That is why we consider that applications for special guardianship orders, seeking in effect to reverse the placement decision, are not appropriate while the placement order is in force.
If there are problems with placing the child or if the situation changes such that a placement for adoption is no longer in their best interest, the right course of 164GC action would be in the first instance for an application to be made to discharge the placement order under Clause 23. We do not believe that it is appropriate for that decision to be made by default as a result of a special guardianship application.
However, we do believe that it is appropriate that where a child is under a placement order, but where the parent or guardian of a child had the leave of the court under Clause 46 to oppose the making of a final adoption order, they are also permitted to make an application, if they wish, for a special guardianship order to be considered at the final adoption hearing as an alternative to the proposed adoption. This is provided for in Clause 28(5)(a) and (b). Others who are entitled to do so may also make application for residence orders or special guardianship orders to be considered at the final adoption order hearing as alternatives to adoption, provided that they secure the leave of the court to do so.
The court is free, at the final adoption order hearing, to discharge the placement order if it decides not to make an adoption order, but some alternative such as a special guardianship order should be made instead. This is set out in Clause 23(4).
I hope that I have reassured the noble Baroness, Lady Barker, that the special guardianship order needs to be considered at the appropriate place. However, once a placement order has been made, it is made in the context that the end result of that will indeed be adoption.
§ Baroness BarkerI thank the Minister for that reply. I believe it was helpful not only to me but to other noble Lords as well. The status of special guardianship and adoption was perhaps not as clear as we thought.
I understand the Minister's comment about placement orders being specifically a matter for adoption. Following what he said, I did not get the sense that a special guardianship application at the stage of the final adoption hearing is working towards the same end described earlier by the noble Baroness, Lady Andrews, in which everyone involved has an opportunity to consider options—rather than a situation in which the final adoption hearing is essentially a high noon when everyone faces a fait accompli. I understood that, although special guardianship and adoption orders are not interchangeable, they are certainly on a par in terms of their permanence.
§ Lord Hunt of Kings HeathAre there not two points here? First, when it comes to making a placement order, clearly a special guardianship order is an option that the court may consider when deciding whether to agree to a placement order. Secondly, when one reaches the final adoption hearing, if—as we know—the parent has already given consent and the court gives leave to the parent, they may come before the court to argue against an adoption order being made. At that stage, the argument may then be put that a special guardianship order might be more appropriate.
§ Baroness BarkerI thank the Minister for that last bit of reassurance; it addresses some of the issues that 165GC I set out to explore with the amendment. I have had some very indicative answers. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 6.30 p.m.
§ Earl Howemoved Amendment No. 58:
Page 14, line 21, at end insert—() A placement order must be reviewed by the court two years after it is issued if, at that time, it continues in force.The noble Earl said: Clause 20(4) envisages three sets of circumstances in which a placement order can come to an end. They are: when the order is revoked under Section 23; when an adoption order is made in respect to the child; or when the child marries or attains the age of 18 years.When I first read the Bill, I formed a view that the provisions for placement orders represented a significant step forward as a mechanism to replace what we have had up to now, which are freeing-up orders. The procedures surrounding placement orders are certainly a major step forward in most aspects, but in one respect I have concerns. What the Government and indeed all of us are seeking to get away from is the situation where a child might find himself in indefinite limbo, neither with his birth parents nor adopted but floating around in the care system.
As Clause 24 reads, that undesirable situation could recur. There is no time limit to a placement order and we have to ask what happens if, despite the provisions of Clause 1, there is a delay in making an adoption order. There ought to be an automatic, in-built check in the system to ensure that children are not left in limbo, which is why my amendment proposes that there should be a review by the court at the two-year point after the placement order had been first made. Unless there is such a check, placement orders will not be seen as such a marked improvement upon the outdated freeing-up orders. I hope that the Minister can give me some reassurance on this point and I beg to move.
§ Baroness AndrewsI am very glad to hear the noble Earl, Lord Howe, agreeing with us that it is good to see the end of freeing orders. He talked about the consignment of a child to limbo and there was nothing more designed to put a child in limbo than a freeing order, which left him without any legal parents whatever. The placement order is clearly an improvement upon that and the purpose of the Bill is very much to create that framework, where everyone knows what legal rights there are and what processes can be followed.
I appreciate that the amendment is aimed at tackling the situation where after two years the child has not been placed. Indeed, we are back to tackling drift here but we ought to bear in mind that we would certainly expect the local authorities to leave no child to drift for six weeks, let alone six months, let alone two years. We would expect the local authority to be reviewing this placement regularly. We would expect it to review the plan for adoption and this starts now very early on.
166GC The current regulations from the Adoption Agencies' Regulations 1983 require a review after four weeks and at six monthly intervals thereafter. We intend similar obligations to be placed on authorities through the new regulations that will be made, so we are building in this requirement under regulations for regular and early review. Where a child has not been placed after two years, we would obviously expect the authority to be asking itself whether this route into adoption was appropriate. The reasons it is difficult to place children for adoption are many and complex and it may be that there are other and better routes for that child, given its circumstances. In such a situation, therefore, we obviously go back to the overriding concern for the paramountcy of the welfare of the child and all the other provisions in Clause 1.
However, if the authority decided that placement for adoption and the plan for adoption was no longer in the child's best interests, under Clause 23, it can apply to revoke the order at any point. If there are problems when a child is placed, we would expect the local authority to act and where it considered the problem sufficiently serious to make a change of plan, we would expect it to discharge the placement order.
We are aware that one cannot afford, and would not want to be complacent in this situation about all authorities reaching for best practice. Authorities do not always act and we have to guard against drift. Therefore, Clause 23 allows the child, or indeed someone acting on his behalf, to apply to discharge the placement order at any point. That could be social services, a social care worker, or a range of people acting to safeguard the interests of the child.
That we see as providing a powerful safeguard but it does not stand alone. It also stands with a new independent reviewing officer system that is introduced through our amendments to the Children Act in Clause 115. That also covers children in adoptive placement and, when we reach that clause, I am sure that we shall have a longer debate on its implications and strengths.
Where a placement is not going well to the extent that the reviewing officer becomes concerned and the local authority does not act to rectify the situation, the reviewing officer will be able to refer the case on to CAFCASS, if it considers that the child's human rights may be at risk. CAFCASS could then apply, on behalf of the child, for the discharge of the placement order.
Therefore, we have in place a series of safeguards; we have the regulations about regular review; we have the independent reviewing officer; we have the ability of someone acting on behalf of the child to discharge the order; and we have the reviewing officer being able to come back to CAFCASS. I therefore believe that that system of safeguards will ensure that drift will be avoided wherever possible.
In light of the arrangements, the Government do not believe that it is appropriate to bring the court into play. I set out the reasons when I spoke to the previous amendment; that is, the relationship that the local authority has, the requirement to act in the best interests of the child and to use the courts when it absolutely needs to have the power to act.
167GC The Children Act makes this division of responsibilities clear and we feel that the same principles should apply to adoption. However, we are determined to ensure that, in cases where the child has spent an unconscionably long time without being found an adoptive placement, we shall not tolerate drift. Therefore, I hope I have been able to offer some assurance that we have the framework in place and that the noble Earl will feel able to withdraw the amendment.
§ Earl HoweI thank the Minister for her helpful reply. I recognise the force of many of the points she has made, not least as regards the safeguards that she listed.
My fear is still that we could have a local authority that would be reviewing the situation regularly but, despite that, there may be drift and even an absence of best practice; perhaps some political correctness creeping in about matching the child with the ideal set of adoptive parents or something of that nature. There would be supposedly good answers that the local authority would give to anyone who challenged it on why this or that child had not been placed with adoptive parents.
The thought that the courts could act as a long stop was based on a wish, at least on my part, that the local authority should be kept up to the mark in a way with which it could not argue. However, I shall consider carefully what the noble Baroness has said between now and Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Earl Howemoved Amendment No. 59:
Page 14, line 21, at end insert—() The child shall, being of 5 years of age or more, be a party to proceedings relating to the placement orders unless the child has consented to waive his or her rights to be a party.The noble Earl said: I can deal with Amendment No 59 briefly. In earlier amendments, we debated the importance of ascertaining the wishes of a child during the process of decision-making relating to his or her adoption. There is nothing that appears to mirror Clause 1(4)(a) in Clause 20. Nowhere in this clause are the child's own wishes referred to. The whole process of a placement order is to be conducted apparently over the child's head.Obviously, for very young children, it is impractical to involve the child in the decision about the placement order, but for older children, the child's wishes and views should at least be ascertained and taken into account. That is why I have tabled this amendment. I beg to move.
§ Lord Hunt of Kings HeathI do not know if I can answer this very simply, but I draw the attention of the noble Earl to Clause 1(7)(a) which makes clear that a placement order is covered within the meaning of Clause 1(4)(a), so the child's
ascertainable wishes and feelings regarding the decisionneed to be considered. I can give a long answer, but that is a quick one.
§ Baroness BarkerOn that basis, cart I ask the Minister the same simple question that I asked when we debated Clause 1: how would a child initiate proceedings under this measure? The Minister can give me a very simple answer.
§ Lord Hunt of Kings HeathClearly, there are a number of ways in which that could happen In the first place, the court has to ensure throughout any of the procedures, including the placement procedures, that the child's ascertainable wishes and feelings regarding the decision are duly considered in accordance with the paramount consideration raised in Clause 1(2). Of course, the child will have access to the matter. If the child's case was being looked after by his social worker, that access could be achieved through the independent case review mechanism that we propose, or it could be achieved through an advocacy system.
It is important to recognise that the way in which the child's views are put before the court will vary in different circumstances and in different proceedings. In some cases it would be right for the child to be a party to proceedings and, for instance, to have a CAFCASS children's guardian appointed to act on his behalf. Indeed, in the Explanatory Notes setting out the Government's thinking in October 2001, the thinking was that the child would automatically be a party in placement order proceedings and would have a CAFCASS children's guardian appointed to act on his or her behalf, in the same manner as is currently done for children in care order cases.
We also currently envisage that a child would not automatically be made a party in adoption proceedings, although he or she would be able to apply for leave to be made a party in those proceedings. In other cases where the child is not a party, there might be other routes for the child's views to be conveyed to the court. Clause 99, for example, would allow the court to ask the CAFCASS officer to produce a general welfare report to the court on the case which could cover the child's views.
I should say that my noble friend Lady Scotland has already written, or is writing, to noble Lords setting out some detail of our early thinking. Although we intend to consult on the issue before setting out the detail in court rules, we currently envisage that placement order proceedings will be specified within the meaning of the Children Act 1989. In other words, a child will be party to the proceedings and a CAFCASS officer and a solicitor will be appointed to act on behalf of the child. A child will not automatically be a party to adoption proceedings, although he or she may be made a party where it is 169GC appropriate to do so. Again, the child will not automatically be a party to special guardianship proceedings, although he or she may be made a party where it is appropriate to do so.
In both adoption and special guardianship proceedings we intend that CAFCASS will report to the court on the welfare of the child. That is in Clause 99(3)(b). This may include recommendations to the court that the child should be made a party. The court has discretion to appoint the child a party throughout proceedings.
I conclude by saying that our views on the detail are not at all fixed. The full detail on representation and party status in proceedings will be set out in secondary legislation such as court rules and we intend to consult on these detailed proposals over 2003 and 2004. Clearly, we wish to retain flexibility in relation to secondary legislation to pick up any issues that could be raised through the consultation process.
§ 6.45 p.m.
§ Earl HoweI thank the Minister for that very helpful reply, which was even more helpful than his short reply earlier on, for which I have in turn to thank the noble Baroness, Lady Barker. Clearly, my amendment is unnecessary but it is helpful to have that clarification on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 20 agreed to.
§ Clause 21 [Applications for placement orders]:
§ [Amendment No. 60 not moved.]
§ Clause 21 agreed to.
§ Clause 22 agreed to.
§ Clause 23 [Revoking placement orders]:
§ [Amendment No. 61 not moved.]
§ Clause 23 agreed to.
§ Clause 24 [Parental responsibility]:
§ Baroness Barkermoved Amendment No. 62:
Page 16, line 13, at end insert—(5) There shall be a written procedure under which any parent or guardian or prospective adopters may apply to the panel, constituted under section 12, for a review or initiation of any determination pursuant to subsection (4).The noble Baroness said: Until the start of these Committee proceedings I had never regretted not having been a Member of your Lordships' House for very long, but I increasingly regret not having been here in 1989 to sit through all the detail of the Children Act. I suspect that that matter may arise again in regard to this particular amendment because I rather suspect, old hand as I am becoming, that the Minister will talk about the Children Act. However, I shall none the less move my amendment which I believe is self-explanatory. It concerns a written procedure under which people who apply for parental responsibility and are turned down may challenge that decision. These are perhaps some of the most difficult decisions that family courts have to deal with.170GC In moving this amendment, I ask the Minister whether or not adoption, and parental responsibility within adoption, is a special case which perhaps merits consideration under this Bill rather than under any other legislation such as the Children Act. I beg to move.
§ Lord Hunt of Kings HeathThis is an interesting amendment which suggests that adoption agencies' determinations about the exercise of parental responsibility when a child is placed for adoption should be subject to an independent review panel under Clause 12. It also appears to suggest that the review panel should in some way be able to initiate determinations in respect of parental responsibility.
We had a very good debate on this matter on Thursday. Members of the Committee will know that my general view is that it would not be appropriate for what I consider to be the agency's day-to-day management of the adoptive placement to be subject to second guessing or micro-management by an independent review process. We have identified the two areas where we think that the independent review process is best operated; that is, first, in relation to where the agency is minded to turn down prospective adopters and, secondly, where the agency decides to exercise discretion on the release of restricted information.
I know that we are going to come back at Report stage to debate this and I shall set aside this debate to concentrate specifically on the amendment. However, I again make the point that there has to be an element of trust as well as an element of regulation and performance management. I am concerned that some noble Lords are seeking to introduce this independent review mechanism to cover almost everything that an adoption agency does. I shall resist that. However, there is a sensible debate to be had as to which areas such an independent review mechanism should cover. Clearly there is room for discussions on those matters between the Committee and Report stages.
As to the amendment, I come back to the point I made earlier about the purpose of placement for adoption. Either the parents have consented or the court has decided that the child shall be placed for adoption by the agency with a view to him being adopted, becoming part of an entirely new family and ceasing in law to be the child of the birth parents. The safeguards, of course, will have been gone through before the parents give consent under Clause 18. They will have been thoroughly counselled and advised by the adoption agency as to the implications of consent; their consent will be independently witnessed by a CAFCASS officer, whose job will be to ensure that the parents have a full understanding of the meaning of the consent that they are giving; and there will be a standard form that will spell out clearly what is involved.
Once the decision is made that the child should be placed, either with consent or under a placement order, until the child is adopted the agency has the primary responsibility for the child's welfare and for overseeing the placement. This is important and 171GC reflects back to the question raised earlier about the problems with freeing orders and the position of limbo that some children are in under those orders.
Here the agency is the body with the skills needed to manage and oversee the placement and to prepare all parties for the final adoption. It has both expertise in adoption and detailed knowledge of the individual case. It is right that it should manage the placement and, if necessary, the extent to which others who have parental responsibility may exercise it.
To return to safeguards, it is worth emphasising that where the placement is with consent under Clause 18, if the parents are unhappy with the placement they are, up to the point where an application for an adoption order has been made, free to withdraw their consent and bring the placement to an end.
The Bill provides for the prospective adopters also to have parental responsibility for the child once he is placed with them. This is the crux of Clause 24, which we are debating. This is for practical reasons. Placement may last several months and, as the child settles in to what is intended to be his new family, the fact that the prospective adopters have taken on parental responsibility will enable them to take responsibility for agreeing to, for example, medical treatment, consenting to school trips and so on. Adoption UK, speaking on behalf of adopters and prospective adopters, welcomed this provision in its evidence to the Committee.
The draft Bill of 1996, to which my noble friend referred, gave prospective adopters full parental responsibility from the point of placement. But responses suggested that some prospective adopters might not want the full burden of responsibility immediately and that it might be appropriate for the exercise of parental responsibility to be a gradual process which developed as the placement itself progressed. That is entirely consistent with the debate that we had on Thursday about the process of adoption support. That is why we want the agency to determine the extent to which the prospective adopters may exercise parental responsibility. We would expect this to be the result of discussion between the agency and the adopters. So, in that context, it is appropriate that in managing the placement the agency should be able to determine the extent to which the birth parents may exercise parental responsibility in order to ensure that the placement runs smoothly and to safeguard it from any interference.
If the birth parents or the prospective adopters are unhappy about the manner in which the agency restricts their ability to exercise parental responsibility, we would expect them to discuss this with the agency in the first instance and, if not satisfied, to use the relevant complaints procedure as they would with any other aspect of the management of the placement with which they were not happy.
In cases of placement with consent, ultimately it is open for the birth parents to withdraw consent and, of course, to have the child returned to their sole responsibility. I hope that, while I suspect the noble 172GC Baroness and I do not agree as yet on the independent review mechanism, she will understand the reason for the drafting of Clause 24 as it is.
§ Baroness BarkerI thank the Minister again for that full reply. I shall take the opportunity to say to the Minister that our obsession with the written procedure, and our requests for there to be independent reviews, should not always he deemed to be a criticism of the agencies. It is certainly in part a frustration about not seeing the regulations and about having to guess so much about what will happen and what will happen to people. I come to the Bill mindful that we are setting a legislative framework within which individual people make individual decisions, day in, day out, of a very tough nature.
I would also say to the Minister that written procedures are not always a stick with which to beat social workers. They are very often a good basis for social workers to explain to people and their advocates who may have some difficulty in understanding what is happening to them in a stressful situation. Therefore, I do not necessarily buy the criticism that goes with this. However, I understand what the Minister says about the gradual transfer of parental responsibility.
It is perhaps one of the most personal decisions in this whole business and I tend to think that decisions about harm to children are perhaps more easily demonstrable but questions about parental responsibility are often deeply subjective. It is with that in mind and with the aim of protecting some of the people involved that we moved our amendment.
§ Lord Hunt of Kings HeathI wonder whether the noble Baroness will give way, because I accept the point she makes. I really want to come back to the point she made about the independent review mechanism and the question of regulations.
I understand that there was always a desire, when debating the framework in primary legislation, to know what would be in the regulations. We have a problem here because it is quite clear that a considerable amount of work needs to be undertaken following passage of the Bill and the enactment of the new procedures in 2004. We intend that there should be a very open debate, discussion and consultation on the regulations. I also say that I believe in relation to independent review of determination, the very fact we have regulation allows us to adopt a flexible response in future.
As noble Lords will know, we have identified these two areas to which we believe the independent review mechanism should relate. However, as things develop, as we gain more experience about how the new procedures adapt, there may well be situations where the performance generally of adoption agencies is deemed not to be satisfactory; where the case for then extending the independent review mechanism to cover such cases will become apparent.
So, while I understand the frustration of the noble Baroness, I would say that regulations allow us some flexibility for the future to make adjustments in the light of experience. I also understand that. she is not 173GC seeking to criticise local authorities or adoption agencies. The point is well taken; all I would argue for is a degree of flexibility here.
§ Baroness BarkerI hear what the Minister says. I would take him back to my speech at Second Reading, where I specifically spoke about the fact that there may be times when we could not seek balance because there is no balance to be had.
I do not believe, as some people have done, that argument for independent review is argument for an indefinite appeal on the part of people who perhaps may not be suitable. I believe that there will come a point when usually social workers, or adoption panels, will come to the end of the road and will say, "No, these people are not suitable". That is a tough point to reach.
I believe that asking for written procedures to be on the face of the Bill does not undermine that in any way at all. It is not necessarily as incorrect as it has been deemed to be.
I cannot remember the case—and the noble Baroness, Lady Howarth, might be able to help me out—but I believe it was in Norfolk where two people went on the run with a couple of children a couple of years ago. I remember vividly that the matter came up on "Question Time" and the panel was asked to talk about it. One person, whom I believe was one of my colleagues, was absolutely right in saying, "All these social services questions are governed by confidentiality and I cannot talk about this".
Since then I have been struck by the utter frustration that surrounds many social care matters. That is why in many cases I am a fan of written procedures; I do not believe that it is always easy for there to be written answers.
I am sorry that we have trailed off into a slightly convoluted argument, and one which I did not intend to get into. I believe there is a need to ensure that all parties to difficult matters, which usually cannot be resolved by balance, at least have a means of coming away from them feeling that they have been justly treated under the procedures. That was part of the reason for having a go at this. I am sorry that we have meandered slightly off the point, but I believe it has been a useful debate, given that the department is so open to suggestion on these matters. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
§ 7 p.m.
§ Clause 25 [Contact]:
§ Earl Howemoved Amendment No. 63:
Page 16, line 22, leave out paragraph (b) and insert—(b) the court may make an order under this section which may—The noble Earl said: We move now to Clause 25, which deals with what is sometimes a vexed and contentious subject; that of contact. Amendment No. 63 deals with one particular aspect of the contact provisions.
- (i) require the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order;
CWH 174 - (ii) allow for the person named in the order and the child otherwise to have contact with each other;
- (iii) prohibit any form of contact between the child and the person named in the order."
Under Clause 25(2)(b) as drafted, a court may make an order requiring visits, stays, or other forms of contact. It does not allow the court to prohibit contact.
Clause 26 allows the court to provide for contact on certain conditions, and in limited circumstances it allows for the adoption agency to refuse to allow contact. However, those provisions fall short of the court prohibiting contact. The presumption will normally be that facilities should be made for the adoptive child to have contact with his or her birth family in the widest sense.
However, it is a sad truth that many of the children who are looked after and are being placed for adoption come from situations of mental or physical abuse from one or more of their family. There are circumstances where it will be clear to the court that contact should be prohibited. All that the amendment does is to make it clear that the court has that power. I beg to move.
§ Lord Hunt of Kings HeathAs the noble Earl suggested, the amendment concerns provisions in Clause 25 covering contact where an adoption agency is authorised to place a child for adoption. Before turning to the specific amendment, perhaps I may explain briefly the thinking behind the approach we have taken.
Clearly, placement for adoption represents a great step change in the future plans for the child. All noble Lords have very much reinforced that point today. It is absolutely appropriate that existing contact arrangements should be revisited. That is why the clause provides that existing formal contact arrangements—in other words, contact orders made under the Children Act—cease to have effect.
Our preferred approach is that the adoption agency, the prospective adopters and the parent should review existing arrangements and agree between themselves what contact arrangements are appropriate in the interests of the child now that the child is placed for adoption.
However, as informal agreements may not be possible, the clause provides for the court to make an order for contact on the application from, for example, the child, its birth parents, the adoption agency and a range of others listed in subsection (3) of Clause 25—such as a guardian of the child or a person in whose favour a residence order had been made immediately before the adoption agency was authorised to place the child for adoption. Unless varied or discharged, those orders would last until an adoption order was made. 175GC The provisions are similar to those in Section 34 of the Children Act which govern contact with children in care.
As the noble Earl explained, Amendment No. 63 is aimed at ensuring that an order for contact under Clause 25 can include an order for non-contact. I agree with the noble Earl that it is important for the court to be able to make an order for non-contact. This might happen, for example, where the adoption agency supervising the placement becomes concerned that someone, perhaps a member of the child's family, might seek inappropriate contact with the child that might risk disrupting the adoptive placement.
I should like to reassure noble Lords that the Bill already allows for this. The wording used in subsection (2) is deliberately modelled on that for contact orders under Section 8 of the Children Act. One advantage of this is to ensure that an order for contact may include one that provides for non-contact where that is in the best interests of the child. In addition, the court could also make a prohibited steps order under Section 8 of the Children Act directed at the person thought to be at risk of initiating harmful contact.
There is case law which makes it clear that a Section 8 contact order can include an order for non-contact. I recognise that the wording of Section 8 does not actually include the words "non-contact". I am happy to send details to the noble Earl. The case is Nottinghamshire County Council v P in 1993.
§ Earl HoweThat is a helpful reply, and I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Earl Howemoved Amendment No. 64:
Page 16, line 28, at end insert "or siblingThe noble Earl said: In moving Amendment No. 64 I shall also speak to Amendment No. 121. As we have discussed already, Clause 25 contains very important provisions about contact. Amendment No. 64 is quite simple. It adds siblings to those who can apply for a contact order under this clause. Siblings are defined by Amendment No. 121—uncontroversially, I hope—as full or half brothers or sisters.The current provision in subsection (3) allows the child or an adoption agency to apply, as well as the parent or guardian of the child and some others, and the court can grant leave to others to apply. However, brothers and sisters are not mentioned.
I am sure that the Committee will be aware that one of the difficult aspects of placing children for adoption is that brothers and sisters have to be split up. It is very often important for children that appropriate arrangements for contact should be made. Of course, I am not suggesting that responsible agencies or authorities do not have in mind the needs of full or half siblings. However, this amendment gives those siblings a little more recognition in the process leading to contact orders being made. I beg to move.
§ Lord NorthbourneI support the noble Earl. This is an important amendment. As it may save time at 176GC Report stage, may I ask the Minister, when he replies, to consider the possibility of grandparents also being allowed to apply?
§ Lord Hunt of Kings HeathI agree that this is a very important matter. Siblings are very important to the child who may be being considered for adoption.
Amendment No. 64 would give siblings the ability to apply as of right for an order under Section 25 for contact under placement. Amendment No. 121 is consequential and provides a definition of the term "sibling" for use in the Bill.
I want to make it clear that the Government are committed to promoting links between siblings in adoption. Indeed, the National Standards make the preferred position very clear—these are the National Standards to which I referred earlier in debate and which will very much govern the way in which adoption services are operated by local authorities and agencies—that siblings should he placed together unless this does not meet their individually assessed needs.
We should expect that adoption agencies would make appropriate arrangements for the child to have contact with siblings where it is in the child's interest. If there were any obstacle to this, the agency could apply to the court for a contact order under Clause 25(3)(a).
If siblings themselves wanted to seek contact, we would expect them to approach the agency and agree an arrangement with it and the prospective adopters. However, if this did not prove possible, it would be open to the sibling to seek the court's leave to apply for a contact order under Clause 25(3)(e).
I agree that Clause 25 does not provide explicitly for siblings to apply. In this, it is the same as Section 34 of the Children Act, which makes parallel provision for contact where the child is subject to a care order under care orders. Clause 25 is modelled on Section 34. However, the noble Earl, Lord Howe, has made a very good case. I give a commitment to noble Lords to look at the issue between Committee and Report stage to see if there would be merit in being explicit about siblings. I should be happy to take that back.
The noble Lord, Lord Northbourne, is right: the issue of contact and the role of grandparents is indeed important. It is an issue on which the adoption standards help us in some way. It is certainly a matter that needs to be fully taken into account.
§ Earl HoweI am very grateful to the Minister for what he has said. He is indeed right that my concern was that siblings should be able, as of right, rather than with the leave of the court, to make an application under this clause. I hope that we can make some progress in this area because I have heard of some quite heart-rending cases where siblings have been denied contact because of various obstructions in the system.
§ 7.15 p.m.
§ Lord Hunt of Kings HeathThere may be certain circumstances where it is appropriate for a sibling to be denied contact. One can think of abuse cases where that decision would be made clearly in the interests of the child.
§ Earl HoweMost certainly. I recognise that fully. Nevertheless, there are equally deserving cases the other way. There is little merit in continuing this debate now. I am grateful to the Minister for his undertaking that he will give further thought to this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Earl Howemoved Amendment No. 65:
Page 16, line 37, at end insert "and at the time of making an adoption order the court shall be required to reconsider whether any such order and any other existing contact arrangements are appropriateThe noble Earl said: The provisions of Clause 25 focus on the placement of the child. Subsection (6) allows for an application for a contact order to be made when an application for adoption is heard. But the Bill does not appear to allow the court simply to reexamine an existing contact order when adoption is made. The issue of post adoption contact would most easily be addressed by the court in the context of the existing order for contact, which was made on placement, rather than in some separate adoption application. I hope that this amendment commends itself. I beg to move.
§ Lord Hunt of Kings HeathI hope that I can reassure the noble Earl, Lord Howe. The noble Baroness, Lady Barker, has raised before the difficulties that we all have with the interconnection between this Bill and the Children Act. Some of the answers to the questions raised by probing amendments are to be found in the continued provisions of the Children Act. I agree with the sentiment behind the noble Earl's amendment. I believe that the Bill provides what the noble Earl seeks.
While any contact order made under Clause 25 would come to an end on the making of an adoption order because the child would no longer legally he placed for adoption, under Clause 45(6) the court, when considering making an adoption order, would have to consider whether arrangements should be made for contact and, for that purpose, review any existing or proposed arrangements to see if they are appropriate.
As I said earlier, the starting point for any contact, whether during placement or after the final adoption, must be what is best for the child. There should be no automatic presumption that previous arrangements must continue. Our preferred approach is that the adoption agency, the prospective adopters and the parent should review existing arrangements and agree between themselves what contact arrangements are appropriate and in the interests of the child now that the child is placed for adoption.
178GC However—I repeat what I said earlier—because informal agreement may not always he possible the Bill provides for the court to make a contact order under Section 8 of the Children Act at the final adoption hearing, either of its own motion or on the application of anyone entitled to do so, including the child's parents. This is provided for by Clause 25(5), which ensures that applications for Children Act contact orders may be made at the final adoption order hearing. I hope that in that way I can reassure the noble Earl.
§ Earl HoweThat is a very helpful reply. I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Earl Howemoved Amendment No. 66:
Page 16, line 43, at end insert—() In considering any provisions for contact pursuant to this section, the court must consider the ascertainable wishes and feelings of the child (considered in the light of the child's age or understanding).The noble Earl said: In moving Amendment No. 66, I shall speak also to Amendment No. 67. The thought behind Amendment No. 66 relates closely to that behind my earlier Amendment No. 59. I strongly suspect that the Minister's reply to me on that amendment makes this one entirely unnecessary. Very often when an adoption is in prospect, a child's views will be strongly in favour of contact, especially with parents or siblings. However, there may well be circumstances, especially where abuse has occurred, as the Minister indicated, where the child's views would be strongly hostile to contact. Either way, it is only right that the court should ascertain those views and take them into account. Amendment No. 66 repeats the approach adopted in Clause 1 for contact orders. I hope the Minister will tell me that the provisions in Clause 1, which he so helpfully pointed out earlier in Clause 1(7)(a), cover this point fully.Amendment No. 67 deals with a different aspect of the child's views. This allows a child to apply to have contact arrangements reviewed once the child has reached the age of 10. This is designed to deal with the situation where contact arrangements were made while the child was very young and most likely had no ascertainable views. The amendment would allow the child to articulate his views at a later stage and give the opportunity for the contact arrangements to be varied. I beg to move.
§ Baroness BarkerPerhaps I may detain the Committee briefly to ask one question. Am I correct in making the assumption that the definition of contact here includes things like letterbox contact and that it is not just physical contact?
§ Lord Hunt of Kings HeathThe noble Earl has eloquently answered his own amendments as regards Amendment No. 66. Clause 1(7)(a) explicitly provides that all the obligations in Clause I are to apply where a court is deciding whether or not to make, vary or 179GC discharge any contact order under Clause 25. So, the welfare checklist in Clause 1 would apply to a decision to make an order under Clause 25. The court would have to take account of the child's discernible wishes and feelings concerning the proposed contact arrangements and consider them in light of the child's age and understanding.
As regards the second amendment, which I understand is to give the child the right to apply to the court to review any contact arrangements made through orders under this section, again the sentiment is something with which I would agree. However, the Bill provides for the child to have a direct say in his or her own right. We would expect the agency, in line with its obligations under Clause 1, to discuss any proposed contact arrangements with the child and to take his views into account in making any arrangements, formal or informal. However, in Clause 25(3) the child can apply to the court to make provision concerning contact between him and anyone named in the order. So if a child were unhappy with the arrangements made for contact, he could apply to the court to make an order changing them.
This is slightly different from what the amendment suggests, which is that the child should apply to the court for the court to conduct a review. However, it achieves the same effect in that, where a child is unhappy about how contact arrangements are going, he can take the initiative in getting them changed. In order to forestall the noble Baroness, Lady Barker, 180GC perhaps I may say that a child with the capacity to do so could instruct a solicitor. The route is also open to the adoption agency and, if the child were very unhappy with a contact arrangement made by an order under Clause 25, it would also he open for the agency to apply or his behalf to make new arrangements rather than placing the burden on the child.
§ Earl HoweOnce again, that was a very illuminating reply from the Minister for which I thank him. I believe that what he has said in relation to my Amendment No. 67 covers the point fully. However, I shall read carefully what he has said in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 67 not moved.]
§ Clause 25 agreed to.
§ Clauses 26 to 28 agreed to.
§ Lord Hunt of Kings HeathWe have made good progress this afternoon. This would be a convenient moment for the Committee to adjourn until Thursday at 4 p.m.
§ The Deputy Chairman of Committees (Lord Dean of Harptree)The Committee stands adjourned until Thursday at 4 p.m.
The Committee adjourned at twenty-five minutes past seven o'clock.