Grand Committee Report of 18 July 2002

Official Report of the Grand Committee on the
  Adoption and Children Bill
  Thursday, 18th July 2002.
  Adoption and Children Bill

    The Committee met at four of the clock.
    [The Deputy Chairman of Committees (Lord Burnham) in the Chair.]
    Clause 112 [Special guardianship]:
    Lord Clement-Jonesmoved Amendment No. 107A:
    Page 61, line 2, at end insert—
    "() Where the court is considering whether to make a special guardianship order and no children's guardian is already appointed by the court for the child who is the subject of the application, the court shall appoint a children's guardian for the child concerned unless it is satisfied that it is not necessary to do so in order to safeguard the child's interests."
    The noble Lord said: We come to Clause 112. Under the proposed new Sections 14A to 14G of the Children Act, which are imported by Clause 112, the court will have the power to make a special guardianship order in both public law and private law cases. This order will significantly affect parents' exercise of their parental responsibility as it allows a special guardian to exercise parental responsibility in relation to the child to the exclusion of any parent. A good example of this is the new Section 14C(1)(b). The consequences of the order are therefore likely to impact directly on the child's and the parents' convention rights under Article 8 of the European convention.
    Under Clause 112 the local authority is required to submit a report to the court. However, this may not provide adequate independent information to assist the court to decide about the suitability of the order and the level and kind of services the child and carer will need.
    There are two principal reasons for this. The local authority may already have formed a fixed view about the family's plan for the child, particularly where the family has a history of involvement with social services; and it may have a view about the need for support services which is, at least, partially determined by its own budgetary considerations.
    To ensure that the child's interests are properly safeguarded, we believe that the court must have the power to seek independent advice and information about how best to meet the child's needs. Hence the proposed presumption that, unless the court is satisfied that it is not necessary, a guardian should be appointed, particularly in cases where there is disagreement between the parent and potential special guardian. I beg to move.
    Earl Howe: I rise briefly to support the amendment and to endorse all that the noble Lord said. We all agree that the over-arching principle of this Bill should
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    be the welfare of the child. That principle should guide us as we consider Clause 112 and the provisions it contains for special guardianship orders. When deciding what is in a child's best interests, the key issue for the court is to be sure that it has objective and unbiased information in front of it on which to base its decision. That may sometimes not he as easy or straightforward as it sounds.
    As the noble Lord, Lord Clement-Jones, said, all that the court will normally have is a report from the local authority. The local authority's involvement with the child and with the family may have a long history attached to it. In one sense, that should give us reassurance because social services will be speaking from experience and knowledge of the individuals involved. However, the other side of the coin is that they will not necessarily approach the issue of special guardianship in an even-handed way because, in many cases, they will have been working hard to try to keep the child with his or her birth family and they will be heavily influenced by the views of the birth parents. The birth parents may well have strong feelings about having their parental rights curtailed as a result of a special guardianship order.
    In one important respect the local authority is also inherently compromised—the noble Lord alluded to this—because, when it comes to the need for support services, it may find its views coloured by whether or not such services are financially affordable.
    Ideally, the court should be able to ask for an independent opinion of what the child needs and then come to a view, based on this opinion and the available facts, as to what course of action is in the child's best interests. The presumption ought to be in favour of appointing a special guardian unless, as the amendment states, the court is satisfied that it is not necessary to do so in order to safeguard the child's interests.
    Like the noble Lord, Lord Clement-Jones, I hope that the Minister will see the need for the court to have the wherewithal in front of it to enable it to come to an informed and balanced view as to what is in the interests of the child.
    The Parliamentary Under-Secretary of Stale, Department of Health (Lord Hunt of Kings Heath): In responding to the amendment of the noble Lord, Lord Clement-Jones, I should say that I recognise the importance of the issues that he has brought before the Committee today. By implication, he and the noble Earl, Lord Howe, have emphasised the importance of these new special guardianship provisions and of ensuring that the procedures are as robust as possible and that, where appropriate, the voice of the child is indeed heard.
    In responding to the amendment, it might be helpful if I set out in some detail the provisions for the new special guardianship order. It is a new development. and the idea of a new status was proposed in the original PIU report following the Prime Minister's adoption review. It received widespread support in the

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    consultation that followed, and we subsequently gave a commitment in the White Paper to develop this new legal option called "special guardianship".
    Special guardianship is aimed at meeting the needs of children for whom adoption is not appropriate, but who could still benefit from permanent, legally secure placements. We know that children value the sense of legal security and permanence that can come with a court order. The intention, therefore, is to give the special guardian clear responsibility, as the noble Lord, Lord Clement-Jones, said, for all day-to-day decisions about caring for the child or young person and for taking decisions about his or her upbringing. Unlike adoption, however, the order retains the basic legal link with the birth parents, who remain legally the child's parents although their ability to exercise parental responsibility is limited. They retain the right to consent or not 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 prefer, for example, being looked after in long-term foster placements, who do not wish to be legally separated from their birth parents but could benefit from greater legal security and permanence. It could be applicable to some children being cared for on a permanent basis by members of their wider family. We know that some minority ethnic communities have religious or cultural difficulties with adoption as set out in the law. Again, special guardianship orders may well have a use here.
    At present, such children would probably either be looked after by local authority foster parents or informally. Where adoption is not appropriate, the only alternative legally-secure option available is a residence order. While a residence order is helpful in some circumstances, it also has its limitations. 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. We shall debate support packages in a later group of amendments.
    The special guardianship order is therefore 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 instances where that would not be appropriate but where nevertheless it is desirable to retain the basic legal link between the child and the parent. We clearly want to see this order used successfully. We are therefore placing in the Bill a duty on local authorities to make arrangements to provide support services for special guardianship placements. We anticipate that those support services will operate in a similar manner to adoption support services.
    I say again that the new provisions have been widely welcomed as offering a positive new option for delivering permanence for children. I also give an assurance that we intend to consult widely on the rules, regulations and guidance that will accompany the implementation of these provisions.
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    I turn to the specific amendments before us. Amendment No. 107A proposes adding a new subsection to New Section 14A, which would mean that a children's guardian would have to be appointed by the court in any proceedings relating to the making of a special guardianship order unless the court was satisfied that it was not necessary to do so in order to safeguard the children's interest. Before addressing the point specifically, it might be helpful if I explain the process that would be gone through before a court would make a special guardianship order.
    New Section 14A sets out who may apply for a special guardianship order and the process for making an application. A person in whose favour a special guardianship order is made is a "special guardian". Applicants must give three months' written notice to the local authority of their intention to apply for the order. The local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters.
    We intend to set out in regulations the matters to be covered by the report. Naturally, I listened with care to the points made by both the noble Lord and the noble Earl in relation to the responsibility of the local authority in bringing a report before the courts. I want to assure noble Lords that it is intended to use the regulations to ensure that there is a rigorous process for assessing the suitability of prospective special guardians. We will consult on how that assessment process will work. However, it is envisaged at this stage that statutory guidance will require the results of earlier relevant assessments to be taken into account; for example where the applicants are approved foster carers. The provisions allow the local authority to engage the assistance of other organisations in preparing these assessment reports. It may be, for example, that voluntary adoption agencies' experience in assessment would make them suitable organisations to help local authorities in this area.
    I want to reiterate that the court cannot make an order unless it has received a report of this kind, covering the suitability of the people concerned to be special guardians. The involvement of the social services department in the process and the requirements we make on what the report to the court should cover, will ensure that issues of the welfare of the child and his interests are investigated and reported to the court. In addition, the Government intend to provide in court rules that a CAFCASS officer will be appointed in appropriate special guardianship proceedings; this will be set out in court rules.
    As has been made clear in earlier debates, the Government are planning to consult thoroughly on the content of those rules, including when a CAFCASS children's guardian should be appointed. However, at this stage and subject to the consultation, which will be an open consultation, we envisage that a CAFCASS officer will be appointed in most cases where the court is considering a special guardianship order. We want to consider carefully the circumstances when a CAFCASS officer should be appointed in cases

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    where the court is considering varying or discharging a special guardianship order, particularly where this is with the consent of all the parties.
    To offer an example here: it might not be appropriate or necessary to appoint the child as a party and have a children's guardian in cases where the application is for a variation of the terms of the special guardianship order, which is agreed by all parties. We would, of course, expect the child's views to be sought out and taken into account on such occasions but it might not be necessary for a children's guardian to be appointed for this to happen. There are other routes to ensure that the court has the child's views, as I shall explain.
    Currently, children's views are generally put before the court in private law Section 8 proceedings within the CAFCASS officer's report on matters relating to the welfare of the child. The Lord Chancellor, my noble and learned friend, may make regulations specifying matters to be dealt with in any report. In addition, the court can make particular directions as to matters to be included in the report.
    Rule 4.11B of the Family Proceedings Rules requires the CAFCASS officer, known as the child and family reporter, to notify the child of the contents of his report as he considers appropriate to the age and understanding of the child, including any reference to the child's own views on the application and the recommendation of the CAFCASS officer. Rule 4.11B(5) also requires the child and the family reporter to consider whether it is in the best interests of the child to be made a party to the proceedings.
    The Family Proceedings Rules 1991 already allow a child to be made a party to private law proceedings where the court considers it appropriate to do so; for example, where expert evidence has to be adduced by a guardian ad litem on behalf of the child, or where the child is of sufficient age and understanding to instruct a solicitor.
    The court will make the child a respondent where it will be in the child's best interest, and CAFCASS has taken over the Official Solicitor's former role in such cases. A child being separately represented would involve a lawyer being instructed to put evidence before the court on behalf of the child. If there is a guardian ad litem, the guardian will instruct the solicitor. If the child is mature enough to instruct a solicitor directly, then the court may allow him or her to do so. In those circumstances, the court would consider very carefully whether it would be in the child's interests to listen to the evidence given by his or her parents in the case and give his or her own evidence.
    As my noble friend Lady Scotland told the Committee earlier this week, the Government are currently undertaking a scoping exercise before undertaking wider consultation on how children are represented in private law Children Act proceedings. The consultation process we plan will be with those agencies who are intimately connected with children and those more broadly concerned. The aim is to try to find the best conduit for the child's voice, so that his
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    views may be heard and taken account of by the court in the most effective manner. Our current plans anticipate a full consultation commencing later this year.
    Separately, in the run up to the implementation of the special guardianship provisions in the Bill, we will consult on the associated court rules before they come into effect. These rules will set out not only the circumstances in which CAFCASS officers must be appointed, but also their duties in each case. Special guardianship orders are an innovation, and it is right that we should have the flexibility through court rules to respond to whatever the consultation tells us in the most appropriate manner.
    I hope Members of the Committee will feel that I have responded sympathetically to the key points they have made, and that the process of the consultation that I have outlined will ensure that where appropriate—and it will be appropriate in many cases—the child's voice is heard.
    4.15 p.m.
    Lord Campbell of Alloway: I am grateful to the Minister for his thoughtful, detailed and comprehensive response to the spirit of this amendment, which 11 support. However, it is satisfactory if the objects are to be achieved by the regulations, the court rules and the regime in different aspects to which the Minister has referred. I am wholly content to accept his assurances in that regard.
    However, perhaps I may advert to the fortuitous intervention of the noble Baroness, Lady Gould of Potternewton, on 11th July on the amendments moved by my noble friend Lord Howe. All Members of the Committee will wish to acknowledge her intervention with gratitude. The noble Baroness drew the firm line between the motivation of my noble friend and those who supported his amendments, which in no way is to be impugned, and the consequences such as discrimination and retrogression which are not acceptable to Members of the Committee, including myself, who opposed the amendment.
    Albeit that the Standing Order—and I have looked at it—on asperity of speech may well have been breached on this single occasion over these clays of constructive and amicable debate, no doubt this arose only through want of familiarity with our traditions of debate, there being no wish by any noble Lord involved to express or imply any want of sincerity on the part of my noble friend.
    Lord Hunt of Kings Heath: I should like to associate myself with the remarks of the noble Lord, Lord Campbell of Alloway. We are in our seventh day of Grand Committee debate, which has been a very effective mechanism for debating the Bill. There have been divisions, but the spirit in which every noble Lord has spoken has been splendid. On the issue of unmarried couples, for example, every noble Lord who has spoken has respected the right of every other noble Lord to speak and to have their voice heard.
    Lord Clement-Jones: I fully concur with the comments of both the noble Lord, Lord Campbell, and the Minister.
    I thank the Minister for that reply. It was effectively an interesting jigsaw puzzle. The ultimate question is whether all the bits of the puzzle will fit together into a harmonious pattern. Only by looking at the Minister's
    assurances—of which he gave a considerable number—will we be able to work out whether they add up to strengthening a presumption of the type suggested in the primary legislation as opposed to a presumption in different rules and statutory guidance.
    In response to the Minister, we very much welcome the institution of special guardianship orders. We believe that they are potentially a considerable advance. I welcome his commitment to consult widely on how the orders will operate and in particular to consult on the regulations governing what will have to be included in the report from local authorities. I also welcome his assurance that that will be a rigorous process. I welcome, too, his comment that the statutory guidance will require early assessment to be taken into account and that adoption agencies could be part of that process.
    I particularly welcome the Minister's comments on CAFCASS involvement and the fact that CAFCASS officers will be appointed in most cases. I took a note of that extremely welcome comment. I took that to mean that, when a special guardianship order is being made or unmade, the usual presumption in the rules will be that an officer of CAFCASS should be appointed guardian for the child involved.
    The Minister's exposition of how the child's voice will be heard in the proceedings was helpful, as was his reiteration of the undertaking of the noble Baroness, Lady Scotland, in relation to the scoping exercise. In a sense, therefore, we are talking about work in progress and not about a given. So there is room for change on that point.
    Finally, the Minister gave an undertaking on consultation on the court rules that will set out not only the circumstances in which the CAFCASS officer is appointed guardian, but also the duties of the officer when he has been appointed.
    The various assurances given by the Minister are extremely helpful. However, between now and Report, I think that we on these Benches will need to consider whether the assurances add up to a package containing the right slices of the pie which we were seeking in the amendment. In the meantime, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Clement-Jonesmoved Amendment No. 107B:
    Page 63, line 29, at end insert—
    "() a birth parent;"
    The noble Lord said: I rise to move Amendment No. 107B and speak to Amendments Nos. 107C, 107D and 108A. We come to the specific provisions of Section 14F, imported by Clause 112. I shall speak first to Amendment No. 107B and then move through the other amendments.
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    The importance of support services for children and special guardians is rightly recognised. Parents, however, are not included in Section 14F(2). Consequently, birth parents are not covered by the provision and do not have a right to an assessment. Given that the effect of a special guardianship order is to exclude the parent from decision making about the child, although it is also anticipated that some form of contact is likely in most cases, we believe that it is essential that the parent has the right to an assessment of their need for support services. Otherwise, the provision of support may be lopsided, and therefore largely ineffective, as the parent would not have received any help in adjusting to the new arrangements. We suggest in this amendment that that right should be contained in the primary legislation. If it is not included, it is likely to be given a low priority by local authorities.
    I turn to Amendments Nos. 107C and 107D. The right to an assessment ought to apply to all special guardians and to children subject to special guardianship orders and their parents because of their special situation. It is not clear who it is intended to include within "prescribed description". We are very concerned that the Government may seek to exclude all special guardians caring for children who have not been looked after by the local authority.
    Research evidence entitled Second Time Around—a survey of grandparents raising their grandchildren which was published by the Family Rights Group in 2001; I recommend it to the Committee—showed that many grandparents caring for children who have not been looked after face great difficulties and in particular great costs, and yet they have struggled to obtain the support services they needed. In our view, there is no category of special guardian who will never need support; hence none should be excluded from the right to an assessment. Whether they go on to receive support should of course depend on the needs identified in the assessment.
    Finally, I turn to Amendment 108A. This Bill gives the local authority complete discretion as to whether it will provide any support services at all when a need is established by an assessment. Although the local authority must have the discretion to provide services that are relevant to local need, there should he a requirement on them to provide services, or to arrange for services to be provided, in situations where a need has been established by an assessment. Otherwise the process of assessment and subsequent service provision may be skewed by the resource implications for the local authority. That is what Amendment No. 108A is designed to do. I beg to move.
    Earl Howe: I should like to speak to all the amendments in the group, and I can do so fairly briefly as the noble Lord, Lord Clement-Jones, has largely covered the ground. First, I think that birth parents are as deserving of support services as the child and the special guardian. Who otherwise will explain to the birth parents what the procedure for special guardianship consists of, what contact arrangements

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    are possible, and what the implications are of special guardianship? Who will be there to counsel if there is a need for that?
    The argument put forward by the Government hitherto has been that birth parents are not a priority for support services in this context, and that in any case they will have access to social services if they need it. I am not happy about that. I do not think that a support service from someone in social services who has no detailed knowledge or experience of special guardianship will be worth very much. I hope that the Government will think again about this.
    I also hack fully what the noble Lord, Lord Clement-Jones, has said about assessments. We need to know clearly who will be included within the ambit of "prescribed description"—that rather vague and indeterminate phrase. If the Government believe that there may be a category of special guardian who should not receive support, then we need to know why they believe that. Moreover, if this is their position, I profoundly disagree with it.
    The noble Lord mentioned the work of the Family Rights Group, which has shown quite conclusively how difficult it can be for grandparents who are caring for children. All categories of special guardian should be entitled to an assessment if they request it.
    Amendments Nos. 109 and 110, in my name, bring us hack to familiar territory. If we believe in trying to generate public confidence in the system, as we surely must, then there has to be transparency and openness. There has to be a feeling that one is being treated as a human being and that one is not dealing with a faceless bureaucracy. If a support service is denied to you, you should be entitled to be told why. You should also be able to ask for the decision to be reviewed.
    I am sure that the Minister will tell me that he does not want such provisions to be included on the face of the Bill, but I shall need good reasons why. At the very least I hope that he will be in sympathy with them and will tell me that, in practice, these are procedures that the Government will wish to ensure are implemented.
    As to Amendment No. 113, subsection 7(a) in new Section 14F states that,
    "The regulations may in particular make provision … about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out".
    I do not understand why the regulations should not cover both rather than one or the other. Knowing what kind of assessment is to be carried out is as important as knowing the way in which it is to be done. The two should be inseparable.
    Finally, the other amendments in the group are all directed at the same target. The question they implicitly pose is this: how committed are the Government to ensuring that support services are actually going to be provided? We want to know that there are going to be regulations laid; we need to know that all the matters listed under subsection (7) will be included in those regulations; and, as we said in the debate about adoption support services, we need to
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    know that if an assessment indicates the need for special guardianship support services, that support will be delivered.
    I realise that there are resource implications to this, but without an obligation on the part of the local authority these provisions amount to window dressing. If the Government believe that local authorities should have the flexibility to decide that they are not going to provide support services despite a need for them having been demonstrated, the Government need to specify the circumstances in which they think such a decision would be justified. I have said before, and will say again, that if there is no explicit requirement in the primary legislation you might as well whistle for such support because, in their current state of affluence, local authorities will in practice only meet those requirements that are legally inescapable; they will not be minded to do more.
    4.30 p.m.
    Baroness David: I support what has been said by the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe. I support Amendments Nos. 107B, 107C, 107D and 108A. I believe that the birth parents should be included among those who may be assessed. It would be a much better arrangement for the future if they were all entitled to an assessment. The noble Lord and the noble Earl have already given the reasons for this, but I would like to add my voice to theirs. I hope the Minister agrees.
    Lord Campbell of Alloway: There is a gap identified by my noble friend Lord Howe. I do not think it is intentional and it could easily be cured. A position similar to that which arose on Clause 44 arises in subsection (6) on page 64. It is not the same but it is similar. The Secretary of State makes regulations which make two types of provision. One type of provision is for assessment; the other type of provision is for the provision of services. Very often—indeed, as a rule—the assessment, certainly with an SEN case like that, involves making provision for the services. But there is a gap. There is nothing here to require the provision made in the assessment to be implemented, and that requires attention. That gap was pointed out by my noble friend Lord Howe. I had not seen it until it was mentioned, but it exists and requires attention.
    Lord Hunt of Kings Heath: I welcome the debate which, in some parts, covers the interesting debate we had about adoption support services a few weeks ago.
    First, I recognise that getting support services right for special guardianship orders will be an important part of ensuring that this new system will work effectively. There is no argument with Members of the Committee who have spoken on that matter. However, special guardianship is different from adoption. It will not involve the same type of lifelong permanent legal separation and transfer to another family. As a result, we have taken a slightly different approach to special guardianship orders from that of adoption orders in regard to support services.

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    Secondly, in our debates on adoption and adoption support services we are building on experience over many years. With special guardianship orders we are entering into a new territory, so a body of evidence does not exist. That is why we seek to make the provisions in this part of the Bill somewhat more flexible than are contained in other parts of the Bill, particularly in relation to adoption support services.
    Lord Campbell of Alloway: What does "flexibility" mean? If you are going to have a form of assessment, all right you will take a different approach, fair enough. However, flexibility to the degree that a recommendation and a requirement in an assessment is not implemented is a degree of flexibility which I do not regard as flexibility; it goes beyond the limit. I wonder whether the noble Lord will take the point—I do not seek a reply—and consider it?
    Baroness Barker: I want to take issue with the Minister's comment that this is new. At some point in the 1920s—I am unsure of the exact date—my great-grandfather went to a funeral and he came home with three children. Their mother had died and their father could not cope. After a very short while, the eldest daughter went back to live with the father, then the boy went back but the other girl remained living with my grandmother's family. It was not called "special guardianship"; it was just what people did. It is what people and grandparents have always done. Therefore, although the legal format has never existed, the practice is well established. I therefore believe that the report from the Family Rights Group is important. There is a body of experience and knowledge out there that we ought to reflect in the law, rather than suppose we are starting completely from scratch. I need to make that point strongly.
    Lord Hunt of Kings Heath: The noble Baroness, Lady Barker, always brings original material to our debates but she has really come up trumps there.
    I am trying to make two points. I say to the noble Lord, Lord Campbell of Alloway, that I was developing an argument in relation to the first part of the group of amendments; that is, those who are entitled to ask for an assessment of support. My argument is that we have given ourselves more flexibility in that area in relation to special guardianship support services than we have in relation to who is eligible to apply for adoption support services. We want to see how the system will work out and to enable ourselves to have that flexibility. That is why at Section 14F(2) we have the ability to specify "within a prescribed description" any other person who falls within the definition of those who are eligible to request services.
    I shall return in a moment to the later issue raised by the noble Lord, Lord Campbell of Alloway. As regards our current thinking on where we believe priorities for support should be, we need to target help where it is needed most and in particular to support special guardianship places where the child or young person is looked-after when the order is made. These
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    children are likely to have multiple complex needs, similar to those of children in care who are adopted. A system similar to the adoption support services assessment is likely to be needed. We see this as a means to navigate through and co-ordinate the provision of public services to support the placement and possibly to support birth families in cases of greater separation.
    However, I accept that the issue should not be considered in isolation, as though the only potential source of support was through the specific special guardianship order provisions. That is not the case. Under other Sections of the Children Act there will also be duties on local authorities to provide support services for children and families.
    In particular, under Section 17, local authorities are under a duty to safeguard and promote the welfare of children in need in their area; to provide services for children in need, their families and others; and to promote, so far as it is consistent with that duty, the upbringing of such children by their families.
    We shall consult on these issues and it may be that consultation and experience suggest that it is appropriate for the right to an assessment for special guardianship to be automatically extended to all people affected by the making of special guardianship orders in the same way as adoption support. Our minds are not closed on that matter, but we want to see the results of consultation and of experience.
    I would again refer Members of the Committee to new Section 14F(2)(b) and (c) and to the five lines that follow. First, birth families—the subject of one of the amendments—could well fall within the list of those in the prescribed description. Secondly, I refer Members of the Committee to the words that follow:
    "if the Secretary of State so provides in regulations".
    it falls to then to the assessment. We have the ability to specify that if a person falls within a prescribed description we can provide in regulations that the Secretary of State can insist that a local authority carries out an assessment. We have the flexibility in the Bill to develop our ideas in the light of consultation and experience.
    I hope that Members of the Committee will take the point that I have been seeking to make; that despite the interesting thoughts put forward by the noble Baroness, Lady Barker, this is an interesting new legal development. It seems worthwhile waiting to see how it develops and we can then make adjustments. The flexibility in the regulation-making power allows us to do so.
    We will work and consult widely on its use. We believe that there will be a positive response from local authorities. However, I do not wish to be misinterpreted as suggesting that we are not committed to providing appropriate support for special guardianship placements. There would be no point going down the route of special guardianship orders unless we could ensure that in the appropriate places and circumstances decent support services were available.

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    We come to the question: if an assessment has taken place, what should be the responsibility on the local authority to provide those services? When the noble Earl, Lord Howe, complained about the amount of resource spent on social services, I was minded to draw his attention to the reluctance of the leaders of his party in another place to say that they would spend the amount of money that the Government have announced for health, social services and many other services in the spending review.
    That brings us to a very important issue of principle. It is all very well Members of the Committee saying that we must specify that this matter has to be a duty, but they also have to accept that there will be a monetary consequence and there will be a consequence in relation to the priorities of local authorities. Local authorities have to be allowed to use their discretion in determining whether to provide support services in each individual case.
    4.45 p.m.
    Baroness Barker: I thank the noble Lord for giving way. He may be aware that there is one local authority in England which has a blanket policy of not providing adoption support payments. Having listened to what the noble Lord says, am I right to assume that the special guardian system will operate in exactly the same way and that if a local authority has a blanket policy that it will not make special guardianship payments, the noble Lord and his department will be unable to do anything to overturn the policy in that area?
    Lord Hunt of Kings Heath: The noble Baroness forgets the debate that we had only three weeks ago when we discussed all the measures that we intend to take to ensure that the overall performance of local authorities is of a high standard. What possible interest could there be for the Government in allowing local authorities to provide poor quality services? Why are we doing this? We are doing it to improve adoption services. Special guardianship orders are an important supplement to that process and will not work unless local authorities do an effective job. We have published the adoption standards which will be covered by Section 7 guidance. We have a strong performance assessment process and the Social Services Inspectorate will monitor the performance of local authorities.
    The noble Baroness's party frequently complains about the central diktats which the Government are alleged to impose on local government. I have described a very strong performance management approach to adoption services on the part of local authorities. However, we must allow local authorities to have discretion. If we were to insist that there was a statutory duty to provide special guardianship support services, we would be placing a higher duty on that than on most of the services which local authorities provide. That would constitute a difficulty.
    I do not depart from the general point that Members of the Committee are making, but I would like to see effective special guardianship support services
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    provided following an effective assessment. I also accept the importance of grandparents. We are sympathetic to the needs of children and young people who are placed with friends or wider family members, including grandparents, in circumstances where they can no longer live with their birth parents. As part of our consultation we shall look at those issues in advance of bringing the special guardianship support provisions into force.
    Finally, I respond to the question that the noble Earl, Lord Howe, raised in relation to new Section l4F(7)(a) which states that regulations may make provision,
    "(a) about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out".
    I am advised that the regulations could cover both situations. However, regulations are not required to set out how each type of assessment is carried out. I hope that that is clear to the noble Earl, but if it is not I shall be happy to look at that again.
    Earl Howe: As regards the final point, I am not sure that I am entirely clear. However, I shall read what the Minister said and, if I need to, I shall drop him a line during the Recess.
    Lord Clement-Jones: I thank the Minister for his reply. On my Richter scale of Grand Committee responses I am afraid that I regard that as one of the Minister's rather dustier responses that we have had over seven Grand Committee meetings. I do not believe that we have got a great deal further. The Minister's arguments rest on a number of different propositions. He says that special guardianship does not have the same long-term consequences as other provision, that we do not have experience of it, and that it requires a great deal more flexibility than might be appropriate for adoption support services. However, much of the earlier debate in the Grand Committee concerned the flexibility which we thought was undesirable in adoption support services. We shall no doubt return to that matter on Report unless the Minister comes back with some splendid proposals in September and October.
    One local authority's flexibility is another person's inability to enforce a set of rights. In my opinion that is the worry throughout new Section 14F. In the course of this debate we have not assured any birth parents that they can ask for special guardianship services. We have not assured grandparents that they will be included. The Minister has simply said that the Secretary of State could include them. I do not believe that most objective observers would regard that as satisfactory.
    Lord Hunt of Kings Heath: With the greatest respect to the noble Lord, I also said that in a consultation process we are open to discuss those very issues. However, because special guardianship orders are a new concept, we think that it is worth having flexibility in the Bill. As the noble Lord implies, in new Section 14F, if it is so decided in the future—I certainly cannot

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    give a commitment that birth parents should always be able to apply for assessment—there is the ability to enable that to happen.
    Lord Clement-Jones: I see a ray of sunshine in the Minister's response perhaps.
    Lord Hunt of Kings Heath: The noble Lord should be a little cautious about that. I did say that I could not give a commitment. All I am seeking to say is that we have the ability to consult and to take account of views that are put forward. I refer to the flexibility in the Bill, as it currently stands, to develop the list of people who would be eligible.
    Baroness Howarth of Breckland: I ask for a point of clarification. I am not too sure who I should ask, but it may be the Minister. It follows from the point that is being made.
    As regards this debate I am unclear about the provisions of Section 1 of the Children and Young Persons Act 1963 which gives local authorities the ability to provide funds to families and to make other provision to enable them to stay together. It seems to me that we are in real danger here of managing to do that only through some kind of legal order. I believe that that would be sad and dangerous. I should much prefer local authorities to be seriously encouraged to improve their preventive services. In the 1970s they developed extraordinarily exciting and innovative community ideas to help families to retain their home networks. Are we really saying that the only way a family is going to get financial help and assessed help is if they apply for a guardianship order? Should we not instead firmly encourage greater use of those rather lost 1963 powers, which were very powerful in terms of developing systems in local communities?
    Lord Hunt of Kings Heath: The noble Baroness raises an important point, which encapsulates what I was trying to say; namely, that under other sections of the Children Act, local authorities are under a general duty to provide services to support children and their families. The great irony is that if Members of the Committee pursue this amendment, to make it a statutory duty to provide support services after an assessment, they are placing it in a higher order—giving it a higher level of priority—than the general duty to support services in the way the noble Baroness has described. That is the problem with this approach.
    Lord Clement-Jones: The Minister earlier said that there would continue to be duties under other sections of the Children Act and under other legislation, but we should not, in this Committee, reach a stage where the good is the enemy of the best or vice versa. What we are arguing for in these amendments does not foreclose a local authority action in any other respect. I was about to say, before the Minister intervened, that we welcome the fact that the Minister proposes to consult.
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    But he also said that it would be within the light of experience. It may be, therefore, that the consultation will be extremely limited.
    Lord Hunt of Kings Heath: I can clarify that. We will consult and that will inform the regulations that will be laid in relation to special guardianship orders. I was trying also to indicate that as time goes on and we have experience of special guardianship orders in practice, we can revisit many of these issues. I was trying to show that we can have a flexibility in response because of the way the Bill is drafted.
    Lord Clement-Jones: That is what I thought the Minister was saying. He said that minds are not closed; that is, in future consultations, in the light of experience and so on.
    Lord Hunt of Kings Heath: No, the noble Lord misunderstands me. Our minds are not closed in relation to the consultation that we will undertake before we lay the first set of regulations. Our minds will remain open in the light of experience.
    Lord Clement-Jones: I am sure the Minister's mind is open at all stages of the proceedings. I welcome that clarification because it is important that the issue of the birth parents and the grandparents is considered now, not simply in the light of experience. I take that as an assurance that those issues will be considered.
    The Minister—and we have debated often enough—is very fond of talking about achieving a balance. I do not believe—and I hope this is taking into account the consultations—that a balance is achieved. These amendments seek to achieve that balance, whether it is the inclusion of the birth parents in new Section 14F or that no one should be automatically excluded from special guardianship support services. That seems to us on these Benches to achieve that balance and I hope the Minister will consider that.
    Naturally, when it comes to the issue of whether, an assessment having been made, those support services have to be provided, we get deep into the thickets of decentralisation and so on. Again, we have debated these issues. Whenever the Minister does not want to make a financial commitment, we start talking about decentralisation. This is a question of assumption of responsibility, not whether decentralisation takes place.
    I would prefer to say that governments can decide whether something takes place but that the "how" is determined at local level. That seems to be entirely appropriate and if the Minister abdicates from the "whether", which is the determination that something should happen at local level, that is an abdication and not true decentralisation. I am quite sure that we will debate again in the context of adoption services.
    Moreover, we on these Benches are not suspecting that local authorities will deliver poor quality services. They may be high quality services but to a more limited number of people. Local authorities may determine that that is the best use of their resources unless they have the duty laid on them by Government to provide those services and also the resources that go with that.

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    I do not believe that we have come to any satisfactory conclusion at the end of this debate. We shall revisit the matter. I welcome the Minister's assurances on consultation but I believe that we have some way to go before we have a satisfactory resolution of this matter. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 107C to 113 not moved.]
    Clause 112 agreed to.
    5 p.m.
    On Question, Whether Clause 113 shall stand part of the Bill?
    Baroness David: It has come to my attention through the National Council of Voluntary Child Care Organisations that Clause 113 might have some unintended consequences. I have assured them that I shall bring this to the attention of the Minister and listen to his comment on it, so that we know whether we might have to go any further.
    I understand that Clause 113 was introduced into the Bill in another place during the course of its passage through that House. Clause 113 of the Children and Adoption Bill amending Sections 17, 22 and 24A of the Children Act 1989, has the effect of allowing children to be accommodated separately from their parents. The intention, undoubtedly, is for Section 17 to be used to accommodate children with their parents. However, as it stands the clause would appear to allow a local authority to accommodate lone children with the authority acquiring the duties of Section 22 of the Children Act; duties which include safeguarding and promoting the welfare of looked-after children.
    Already, vulnerable children and young people—for example, homeless young people, asylum-seeking children and children being removed from mental institutions—could inadvertently be placed at further risk. It is unlikely that a local authority will choose to make use of the full range of powers under Section 20 of the Children Act when a less costly alternative is available. It is probably unintentional but it is a loophole that should be closed, and I hope the Minister will comment on that.
    Lord Hunt of Kings Heath: Clause 113 was introduced at the Report stage in the other place in response to concerns that had been raised during Special Standing Committee about a problem that had arisen as a result of a recent judgment of the Court of Appeal, A v London Borough of Lambeth. The judgment meant that local authorities no longer had the power to provide accommodation to children in need and their families under Section 17 of the Children Act 1989 when accommodation was not available from any other source. Clause 113 is intended to deal with this problem with the ultimate aim of safeguarding vulnerable children and their families without placing unacceptable burdens on the system.
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    Subsequently, there was a further judgment from the Court of Appeal in the case of W v London Borough of Lambeth, which appears to overturn the earlier judgment. The original case may still come before this House and it is possible that this House might uphold the original judgment. In the light of this continuing uncertainty, Clause 113 was considered to be all the more important to provide clarity and certainty about the law in this area.
    Historically, Section 17 of the Children Act 1989 had been considered by the Government and by local authorities to empower councils with social service responsibilities to assist children in need and their families by providing them with accommodation or, more often, help with the cost of accommodation, such as payment of a rent deposit or the first month's rent, where help was not available from other sources. That picks up the point raised by my noble friend, which was considered to be an important safety net provision for particularly vulnerable groups, including those families considered to be intentionally homeless, those needing emergency accommodation, or older children who, while needing accommodation, do not need the more intensive support provided by foster care or institutions.
    The Court of Appeal held in A v London Borough of Lambeth that provision of or payment for accommodation lies outside the scope of Section 17. Since then, the judgment in J v London Borough of Enfield has made clear that councils are able to use their power under Section 2 of the Local Government Act 2000 to provide financial or other assistance towards the cost of obtaining accommodation.
    In the most recent case, W v London Borough of Lambeth, the Count of Appeal held that accommodation was within the scope of Section 17 but, as I have explained, that might not be the last word on the subject. Moreover, the Government's view is that while Section 2 of the Local Government Act 2000 is an acceptable stop-gap, it is not entirely equivalent to the position historically thought to exist under the Children Act.
    The clause is therefore intended to clarify the position and to confirm the power for local authorities to provide accommodation under Section 17 of the Children Act 1989, which was thought to exist prior to the Lambeth judgment. Subsection (1) amends subsection (6) of Section 17, to make clear that local authorities can provide assistance in kind, accommodation, or, in exceptional circumstances, cash.
    I listened with great interest to my noble friend. I hope there is not a loophole but I will take this away and look at it and come back to her on the specific points she has raised. But I hope she will accept that this is a genuine attempt to clear up a potential loophole which may have inhibited local authorities giving just the kind of support that she raised.
    Baroness David: I am grateful for the Minister's reply and pleased that he will look at this further. The national council asked me to raise the matter and I

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    shall ensure that it knows exactly what the Minister has said. If there remains anxiety, we can bring something back on report.
    Clause 113 agreed to.
    Clause 114 [Inquiries by local authorities into representations]:
    Baroness Noakesmoved Amendment No. 114:
    Page 66, line 2, at end insert—
    "(1B) Regulations may be made by the Secretary of State requiring the local authority to arrange for the appointment of an independent advocate on receiving representations under subsection (1)."
    The noble Baroness said: I rise to move Amendment No. 114 and I will speak also to Amendment No. 115. Amendment No. 114, amending Clause 114(1), further amends Section 24D of the Children Act 1989. It allows the Secretary of State to make regulations requiring local authorities to appoint independent advocates when representations are received about the services provided by them. Amendment No. 115 is similar but applies to Section 26 of the 1989 Act, which draws in complaints under this Bill.
    In the Special Standing Committee in another place, the Minister said that the Government were sympathetic to the issue of independent advocacy, but that they were still consulting on the issue and wanted as much flexibility as possible. We certainly support flexibility because the needs of children are unlikely to be met by a one-size-fits-all policy. We accept that formal advocacy services such as those that have been introduced in the NHS may not be appropriate for young people and that a more diverse range of advocacy might be appropriate including, for example, peer advocacy.
    These amendments merely empower the Secretary of State to make regulations about independent advocacy—they do not constrain the Secretary of State in any way. I hope the Minister will give an update on the Government's consultation exercise and say when the results will be published. If they are serious about independent advocacy—and I hope the Minister will confirm that they are—these amendments give a legislative framework. That, in turn, should allow for those services to he implemented quickly, as soon as the Government are clear about the way forward. I beg to move.
    Lord Campbell of Alloway: I support all these amendments. They reflect an aspect of Amendment No. 7, moved by me, which frankly is totally spent now and will not reappear in any form on Report. It has been superseded by far better amendments. It was a probing amendment and it served its purpose.
    There is one point. I was concerned with the quality of representation, and I was suggesting that somehow or other the Lord Chancellor should have a hand in this. His department has the facility to ensure a certain standard of quality which is not uniform in my branch of the profession. Different people also have different forms of expertise. A Secretary of State, as such, has not the same means of assessing the requisite skill and
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    competence as would the Lord Chancellor's Department. I merely ask that some consideration be given, that maybe one should consult the other, or that there should be some satisfactory means to ensure competent representation.
    The Earl of Listowel: I rise to speak to Amendment No. 114 which stands in my name and the name of the noble Earl, Lord Howe, and to Amendment No. 115A which stands in my name.
    The noble Baroness, Lady Noakes, has already made many of the most important points in relation to Amendment No. 114. The history of this amendment is that, for the past three and a half years, I believe, a children's consortium has strongly supported such provision. The consortium includes Barnardo's, the Children's Society, the Boys' and Girls' Welfare Society, Childline, Children's Rights Alliance, the NSPCC and others. Children's right to be supported and the right of children in care to have an advocate to provide a complaints process for use when they wish to make a complaint is considered the absolute, bare minimum of provision.
    I should like to put the issue in context to illustrate why this provision is necessary. On Monday, the Chief Inspector of Prisons visited your Lordships' House and told us that overcrowding in prisons is now so great that many men have to double up and share a single room. She witnessed an older man with a catheter sharing with a young man who self harmed. They were sharing the same cell for 23 hours of every day. There was an unscreened lavatory. They had to perform all their functions in view of one another. There is a good chance that both had been in care. If we do not get the care system right, that is the prospect for many children in care.
    The Government established an education target for children leaving care. The target was that most of those children should receive one GCSE. Unfortunately that target was not achieved last year. Most children in care have come from a background of abuse. Only 5 or 6 per cent of' children arriving in care have been involved with the criminal justice system. When they leave care, however, there is a high likelihood that they have been so involved.
    It is easy to criticise social services. However, I do not downplay the fact that these children are often very challenging. These children comprise a varied group, but many of them are challenging and have serious needs.
    The United Kingdom has failed to meet our target for educating these children. In Germany, however, more than 50 per cent of children in care receive their Arbitur, which is the equivalent of a good clutch of A-levels. So although these are challenging children, we could do far more for them. The Government have made many welcome improvements, but there is a long way to go.
    One of the main problems is the long-term under-investment in social services. Although the Government have recently made some welcome additions and made promises for the future, as the

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    Committee discussed earlier, under-investment continues to be a very serious problem. These children are subject to these resource problems. They are vulnerable and their voice needs to be heard.
    A woman who I very much admire managed Centrepoint's hostel in King's Cross for young homeless people, many of whom used drugs. One boy at the hostel had left care and was going to be placed in totally inappropriate and insecure bed and breakfast accommodation in Earl's Court. She obtained the help of an advocate from Voice of the Child in Care—a charity in which, as a patron, I should declare an interest—and his needs were addressed. She had nothing but good to say of the work of the advocate in that case.
    Only yesterday, the Children's Legal Centre described to us the case of David, who was also a care leaver. He had a history of abuse and was in a special hostel. The local authority suddenly decided to move him from the children's home in which he was living to bed and breakfast accommodation 70 miles away. In this instance, no regard had been given to his statutory right to have his welfare safeguarded and promoted or to have a pathway plan and a personal adviser.
    I shall, if I may, cite one other case. Ian and Robby are two boys whose mother died when one was about eight and the other 11. They were looked after by their aunt and sister, who could not cope with them. They were then put into care. It was hoped that they could remain with their foster family as a long-term placement, but social services decided that they had to be moved on. They planted a tree in the local cemetery as a remembrance to their mother. Nevertheless, social services insisted that they had to move. Through the help of their foster parents, they obtained an advocate, who looked at the problem with the social worker and others. A sensible agreement was reached whereby the boys could stay where they wished to be.
    In all these cases, adults were the ones who enabled the boys to find an advocate so that they could use the system. When I speak to practitioners and social workers about this, they emphasise that this is the absolute minimum that is required to protect these vulnerable young people in the face of the great resource restraints facing local authorities. It is a permissive power for which we are arguing. I am going a little further than the noble Baroness, Lady Noakes, or perhaps approaching care leavers in a slightly different way. My Amendment No. 115A allows a great deal of flexibility. I know that the Minister will have considered the matter carefully, and I know that he and his colleagues have been working hard on this. I look forward to his response to the amendments.
    5.15 p.m.
    Baroness Howarth of Breckland: I rise to support Amendments Nos. 114 and 115 and the sentiments of Amendment No. 115A. I have worked with both NYAS—the National Youth Advocacy Scheme—and the Voice of the Child in Care. Childline has a special provision, paid for by the Department of Health, for children accommodated in care or in other institutions which allows them to call in to seek help.
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    What has been clear throughout this debate is the variability in the type of help available to these children. The noble Lord, Lord Campbell, has described that variability. However, I do not think that the variability issue arises in relation to provision as different sorts of representatives for children are needed in different situations. I think that these organisations understand how to provide that representation. The issue arises because there is no clear framework to fix representation.
    I look forward to the outcome of the consultation, in the hope that it will result in a national framework for independent representation for children which will join these organisations. I have long felt that some of them could join together. Indeed, I have spent time with many of them trying to work towards that. They would be encouraged to work more closely if the framework and the requirements were clear. I look forward to hearing from the Minister how this might develop in future.
    Lord Hunt of Kings Heath: This has been a helpful debate and, once again, the noble Earl, Lord Listowel, has drawn our attention to the reasons why we need to improve our adoption services and why we need to gear ourselves up to improve the outcomes of looked-after children.
    The noble Earl referred to educational statistics. I have looked at them. The figures for September 2001 tend to show that there has been a very small improvement—but improvement none the less—which we ought to welcome. In school year 11, for example, 11 per cent of looked-after children achieved at least one GCSE or GNVQ, which is up from 4.9 per cent in 2000; 8 per cent of looked-after children achieved at least five GCSEs at grades A to C, which is up from 7 per cent in 2000; and at the end of school year 11, 53 per cent remained in full-time education, which is up from 52 per cent. There are other statistics which also tend to show a small percentage increase. But we wish to see greater progress and I hope that we shall do so in the future. None the less, these are significant signals, which are to be welcomed. But these figures also show that we have a long way to go before we achieve the kind of outcome that we really want for these vulnerable, looked-after children.
    I know that we have debated the issue of advocacy for quite some time now. I recognise the importance of advocacy. Clause 114, around which the debate is taking place, is an important improvement. It improves the way in which complaints procedures will operate in respect of children. We know that there have been many concerns in the past about local authority/social services complaints procedures, which have been criticised as being too slow and too bureaucratic. We need to do something about that, particularly for children.
    Clause 114 amends the Children Act in three ways. First, it corrects an anomaly in the complaints procedures for complaints involving children. Currently, complaints about the discharge of local authority functions, including care and supervision and child protection, are dealt with through the adult

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    complaints procedure established under the Local Authority Social Services Act 1970. Clause 114 extends the more child-focused Children Act complaints procedure to complaints and representations about these services. This will ensure—to pick up the point made by the noble Baroness, Lady Howarth of Breckland, who suggested that a national framework was needed—that there is a consistent approach to all complaints made by or concerning children.
    Secondly, Clause 114 amends the Children Act 1989 in order to enable regulations to be made imposing time limits for the making of representations under that Act. Again, this is another important part of the building block of a national framework. Our aim is to set a reasonable time limit so that matters complained about by current service users have a reasonable prospect of being remedied.
    Finally, Clause 114 also makes a mainly technical amendment to the Children Act regulations to enable regulations to be made so that an independent person is not required in any informal resolution stage. We are able to introduce an informal resolution stage under the present powers in the Act by means of regulations. We propose that the informal resolution procedure should have a tight, 14-day timescale because it is especially important for children to have their concerns dealt with quickly.
    I turn now to the question of an independent advocate. Members of the Committee know that the Government and myself are sympathetic to these issues. We have completed five consultation roadshows with providers, commissioners and users of advocacy services about issues such as provision, funding, standards and training. We do not feel that it is the right time to introduce legislative changes in the Bill because consultation has only recently been completed and the Government are analysing the responses and considering the key messages from these events. We want to ensure that independent advocacy sits alongside or is built into a strong foundation of listening-to-children activity. Furthermore, the amendments do not provide the flexibility necessary to make a system of independent advocacy work.
    The noble Lord, Lord Campbell of Alloway, referred to the advice that my department might seek from my noble friend's department in relation to legally or qualified professional people to undertake advocacy. We are ever ready to listen to my noble friend's department, but I believe we need some flexibility. The noble Baroness, Lady Noakes, also said that in her introductory remarks.
    During the consultation events, feedback from young people's groups told us frequently that flexibility is important; that they would like the choice of who provides that advocacy. For instance, as the noble Baroness, Lady Noakes, suggested, it could be peer advocacy, or it could be mentoring from among the peer group of young people. It might be a relative or a friend from the local community. We want to consider all these issues raised in the consultation, and
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    we need some time to make a response. However, I want to assure Members of the Committee that the intention is that we respond by the end of the year.
    We also need to do more work to clarify the roles of the different professionals advocating for children and young people in the complaints procedure. As the noble Baroness, Lady Howarth of Breckland, suggested, a number of people and organisations are involved. They can include independent persons, complaints officers, independent reviewing officers, independent visitors, and listening-to-children officers. They all do a good job and there is no question about that. However, we must be careful that these different roles are not confused, particularly during the early stage of any procedure when we would want complaints or concerns resolved informally.
    The confusion among young people about who to go through and the pathways to take is apparent and came through in the consultation process. We must also ensure that there are sufficient numbers of advocates, or people wishing to be trained as advocates, before we make it a statutory requirement on all councils. Again, feedback shows the need for an appropriate and affordable service, which gives young people the flexible service that they need.
    We want to get these issues right. The consultation looked at the funding of advocacy services; at definitions of the different professionals who provide advocacy; and at the national standards and training of advocates. We will analyse all those issues, and we will then be in a better position to define what we want local authorities to deliver and how we want them to deliver it.
    I also give a commitment to Members of the Committee, that we are keen to use the national advocacy standards. These standards were developed by my department, the National Youth Advocacy Service and the Advocacy Consortium, and were put out for full consultation. The current consultation, which also involved consultation on not only the draft standards but on the wider issue of advocacy, will be very carefully considered.
    In the consultation we also explored the possibility of introducing a joint system between children's social services and developments in the NHS, with the creation of independent complaints advocacy services. As many Members of the Committee will be aware, we intend to introduce independent advocacy in 2003 within the NHS, with pilot sites being used to explore issues concerning practical implementation. Feedback from the events indicated the importance of consistent advocacy services across NHS and social services.
    The work we do links in to the Quality Protects programme. Listening to children is a key principle underpinning the entire programme. Guidance to local authorities requires social services departments, and other agencies to increase participation in day-to-day decision making through the development of independent advocacy services and the speeding up of complaints procedures.

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    Furthermore, the principle of listening to children is being taken seriously at national level. My right honourable friend, Mr John Hutton, who has lead responsibility for children's services across government, and the Young Persons' Unit within the Cabinet Office are dedicated to ensuring that government departments listen and talk much more to young people.
    Today I attended a meeting of the UK National Youth Parliament, which I would describe as an invigorating experience. Three hundred young people elected from local communities, come together for four days to talk about many of the same issues. I gave a commitment that my own department would meet with the specialist health select committee of the young peoples parliament to talk about the issue of involvement within the National Health Service and social care at a national and local level.
    I hope that Members of the Committee will know of our commitment to considering these matters carefully. We have a problem with the amendments because of timing but work is being taken forward in the light of consultation. However, much more needs to be done before we can consider making the provision of independent advocacy services a statutory requirement. We are committed to doing everything we can to take this work forward as quickly as possible.
    5.30 p.m.
    Baroness Noakes: Will the Minister say whether in the event that the amendment was not proceeded with at a later stage, the Government would have legislative cover to introduce some kind of national system of advocacy? If the amendment were not made, what would be relied upon to achieve that?
    Lord Hunt of Kings Heath: This question has been raised before. Primary legislation would be required and I can never speculate about what future legislative proposals might he in place in the area of social care. All I will say is that this is not the first Bill relating to the responsibility of local authorities that we have debated over the past three to four years and it certainly will not be the last.
    Lord Campbell of Alloway: Would there be any objection to putting an enabling clause in the Bill which was widely drafted, without commitment as to time, when the Secretary of State may so ordain? There would he no need for parliamentary time and new legislation; it could be done if the Government wanted to do it.
    The Earl of Listowel: I am sure that the noble Lord, Lord Campbell, will correct me if I am wrong but, as I have understood it, that is just about what these amendments offer. They are very permissive and the regulations can be made when the Secretary of State desires to make them.
    I listened with great interest to what the Minister said in reply and I thank him for the details of the education figures. I know that he and his colleagues
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    are giving a great deal of thought to this area. I know that the Minister is working with the noble Baroness, Lady Ashton of Upholland, and the Secretary of State on this matter.
    There are a few points which I should have made in my opening remarks, which Members of the Committee may be interested to hear, in response to what the Minister has said. I did not wish to interrupt the Minister while he was speaking.
    The Minister quite rightly said that looked-after children are looking for choice in who is their advocate. It may be a family friend, or it may be a peer, and so on. Our amendments would not preclude a child turning to a peer or any others for help. However, we need to cover the example the child has asked for an advocate and the local authority then says that the child can have its advocate, but the child does not want that. Our amendments would that prevent from happening. For instance, a girl called Amy was concerned about being moved out of a place where she was very happy and the local authority was approached. The foster parents were told, "No, you cannot use that advocacy service; you can use ours". In the end, no advocacy was provided. That is a concern that this amendment would cover.
    The Minister expressed concern about whether there will be sufficient numbers of advocates to act in this way. As I understand it, NYAS— the National Youth Advocacy Service—and Voice for the Child in Care, are confident that they can meet the requirements together with the local area advocates now available. They do not envisage a large number of young people taking up this service. If the Secretary of State does not share their confidence, he can choose to implement the amendments—perhaps next year or in two years time—when the time feels right. I thank the Minister for his reply. I look forward to studying it carefully over the recess. If he has any comments on those points, I would appreciate hearing them.
    Lord Hunt of Kings Heath: There are two points here. One is the question of advocacy and how important it will be, and we all agree that it is very important. That is why we are having the consultation. The Government take this issue seriously.
    It is also worth making the point that, in addition to the potential services that I have mentioned, we have the use of community legal service partnerships. They provide great coverage in England and Wales and bring together those who provide legal and other advice services. This enables us to look at the kind of support which should be available for children, particularly in relation to the legal profession.
    As to whether one could accept these amendments on the basis that they are there as a principle and it is up to the Secretary of State and local authorities to get on with it, I understand the temptation but I resist it. I believe that we have to get the definitions right before we go down that path. I realise that this is frustrating and that people are anxious to see the results of the

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    consultation. However, my advice is that it would be better to see the results, work matters out properly and then consider legislation.
    Baroness Noakes: I thank the Minister for his comprehensive reply and for his reply to the points raised by the noble Earl, Lord Listowel, and I thank all noble Lords who have taken part in this important debate.
    The Minister referred to difficulties with the timing—that is, that the Government are not ready to go forward with advocacy services and, therefore, it is an inappropriate time to bring forward this amendment. I find that quite difficult to understand. As the noble Earl said, this is a broad power which does not constrain the Government. Indeed, it provides the Government with a framework for implementation when they have reached a view as to the right way forward for advocacy services.
    If the Government do not accept the amendment, they will not have a legislative framework available to them and will have to wait for another legislative opportunity—and we all know that that can be difficult. If it were found that the amendment did not cover the kind of advocacy services envisaged once a view is taken, primary legislation may well be required. However, this gives a sporting chance of a legislative framework being implemented quickly once a view is taken.
    It is interesting that one did not hear anything from the Minister, as one often does when tabling amendments, about the technical deficiencies of the amendment. One only heard that the Government were not ready to accept it.
    Lord Hunt of Kings Heath: I wished to spare the noble Baroness that this time. Although it is a relevant issue, because of the allure of an enabling provision with a technically deficient amendment, one might end up with a law of unintended consequences whereby one did not get the flexibility that one would wish. A defective definition of advocacy would inhibit the development of services at a local level.
    Baroness Noakes: I say to the Minister that if it were not to he used, it would just lie fallow in the legislation. However, we believe that it is wide enough for the Government to introduce it. If there are technical deficiencies, I am sure that I and other Members of the Committee who are interested in this area will want to work with the Minister over the Summer to see whether a better amendment can be brought forward. I have to say to the noble Lord, "See you on Report". I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 115 and 115A not moved.]
    Clause 114 agreed to.
    Clause 115 [Review of cases of looked after children]:
    Baroness Noakesmoved Amendment No. 116:
    Page 67, line 24, leave out from "be" to end of line 25 and insert "independent of the authority and independent of the case in question."
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    The noble Baroness said: I rise to move Amendment No. 116, which seeks to amend Clause 115 of the Bill. This clause was introduced by the Government during the passage of the Bill in the other place. It amends the 1989 Act and allows regulations to provide for local authorities to appoint someone to review cases of looked-after children and their care plans. We certainly welcome that mechanism which will help to ensure that each child's case is properly dealt with. The key issue, however, is who will be appointed to carry out the review function. The Bill states that the person will be,
    "a person of a prescribed description".
    In another place, the Minister, Jacqui Smith, said that in the Government's view that person needs to have professional expertise in children's services and be independent of the case and its management. We think that independence is important. which is why our amendment is phrased in terms of independence. The term does not appear in Clause 115.
    There are two aspects to independence in our amendment. First, I refer to independence from the case in question which is in line with the Government's position, as outlined in another place. I hope that the Minister can readily accept that. It also refers to independence from the authority. That is the area that I wish to explore. I believe that an employee can never be truly independent of his employer. The saying "He who pays the piper calls the tune" contains more than a grain of truth. An employee will be mindful of the views of his superiors, his promotional prospects, his pay reviews and so on.
    Although it is true that independence is fundamentally a state of mind, structural factors such as employment make the establishment and maintenance of independence very difficult. Even more importantly, the appearance of independence, and hence its credibility, can be undermined. Amendment No. 116 requires independence from the authority. I expect that the Minister will refer to existing examples of local authority reviewing processes which are wholly internal and have been successful. However, that is success compared with no review process at all. If we are trying to set up new and enduring processes across the whole of local government, requiring some changes to a few existing arrangements should not be a harrier. I beg to move.
    5.45 p.m.
    Baroness Andrews: I am grateful to the noble Baroness for that clear explanation of the intention of the amendment. The overall aim of Clause 115 is to ensure that all children who are looked after by a local authority, whether they are accommodated voluntarily or come into care as a result of a care order or are placed for adoption under the Bill, should have the arrangements about their lives properly checked and reviewed on a regular basis and also—this is obviously very important—that action should be taken where plans have not been implemented.
    The amendment would make it a requirement for the reviewing process to be carried out by reviewing officers who are both independent of the case being

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    reviewed and independent of the authority; that is, by people who are not employed by the authority. We positively endorse independence as regards case management. I shall explain why we think that we have the relevant provisions in the Bill to achieve that.
    However, we have some problems as regards the term "independent of the authority" for reasons that I shall explain. Perhaps it would he helpful if I were to outline how care plans are reviewed at the moment, particularly in view of the debate that we have just had. I refer to the contribution of the noble Earl, Lord Listowel, who talked about the importance of improved quality in relation to children. It is important that we understand the thought that goes into care plans.
    The current regulations set out requirements for the timing of reviews and the way in which reviews are to be carried out. That is a central part of getting care plans right. The primary purpose of care planning and review is to safeguard and promote the welfare of a child living away from his or her family. Every time that situation changes we have to involve children in negotiations about what they want. The care plan is very much a living document—one that is owned both by the child and by the person taking care of the child. Their needs change, which is why the timing of the care plan reviewing process is set down in regulations to ensure that we have a review built in at appropriate intervals. The first review is to take place within four weeks of the initial placement, the second review within four months of that placement, and thereafter every six months.
    Local authority practice varies in carrying out the reviewing process. There are inconsistencies and variations in practice. We have to acknowledge the fact that that has led to drift in terms of care. That is something that we addressed earlier in our discussions. We discussed ways of minimising the risk of such drift.
    Over the past few years some local authorities have developed a specific role of reviewing officer to take responsibility for this important activity and to ensure that care plans are properly implemented and are appropriate. Reviewing officers identify the issues, they ask the awkward questions and they chair the review meetings. They make sure that the provision that is considered best for the child is provided. They can influence what happens in individual cases where they are unhappy with a lack of progress. I shall come back to that ability to influence and to bring into the process of negotiation all the available information from across the department and across the authority which will make an impact on good practice.
    The provisions in Clause 115 enable us to build on this good practice and to ensure that all local authorities take that approach. It is not about introducing something new, but about universalising the best. Clause 115 amends Section 26 of the Children Act 1989, which as I mentioned earlier enables the Secretary of State to make regulations. In addition, new paragraph (2)(k) of Section 26, as inserted by Clause 115, enables regulations to be made requiring the appointment of a person as a reviewing officer, to
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    review the child's case. Subsections (1) and (2) of Clause 115 provide powers to describe in regulations who should be appointed and how they will carry out their role.
    I will come on to what the regulations will contain shortly, but first I would like to emphasise that the content of those regulations will be the subject of wide consultation to ensure that the framework we put in place is fit for the purpose. It will not just be consultation with local authorities but very much consultation with children as well. In all the review processes that we have conducted with young people, we have discovered just how incredibly sensible and farsighted they are in telling us what they want and need. It is important not just to listen but to enable them to follow through on the consultation.
    There may be situations, however, where, despite the best efforts and the influencing skills of the reviewing officer, an authority fails to carry out a key part of the care plan. Where that occurs, we need to ensure that there is a remedy. New subsection (2C) of Section 26, as inserted by subsection (2) of Clause 115, will enable the reviewing officer to have recourse to court where the situation demands it. There could, for example, be a situation in which a two-year-old is looked after by a local authority because the parents have lost interest in her care and the reviewing officer can no longer influence the local authority in implementing the care plan. He would be able to refer the case to CAFCASS which would be able to take action on behalf of the child.
    New subsection (2)(c) allows the Lord Chancellor to make regulations to extend the function of CAFCASS officers in respect of family proceedings, and it also enables regulations to be made prescribing the manner in which those functions should be carried out. This means that where a child has no family or carer to act, the officer will be able to take proceedings on its behalf.
    I turn to the detail of the amendment. It provides that the reviewing officer must be independent of the local authority and independent of the cases which he or she is reviewing. We entirely agree with the need for independence in terms of case management. I shall describe later how we seek to ensure that that happens in practice. However, we do not believe that, in order to guarantee independence, it is necessary for every reviewing officer to be drawn from outside local authority employment.
    At the moment, local authorities have a choice. Some local authorities appoint people from outside the service whereas others make an internal appointment. Practice suggests that both work well, but that there can be some positive impact and added value with internal appointments because of the knowledge they bring of the social services system as a whole, how it operates across the local authority and the networks to which they have access.
    Most important, however, as will be borne out by anyone who has had to deal with children in these situations, is the type of person recruited, their

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    relationships and the consistency of those relationships. We believe that local authorities should retain the choice of whom to employ.
    A reviewing officer must have sufficient status to ensure that he or she can effect the implementation. We believe that that is better done within local authorities. The officer not only needs to have professional expertise in children's services but must be independent of the child's case and management of the case. I hope to reassure the noble Baroness, Lady Noakes, that it is our firm intention to prescribe these requirements for independence and what we mean by that in the regulations made under Section 26.
    Reviewing officers have to be objective. They have to be able to ask awkward questions of local authority professional staff, and to require them where necessary to act on behalf of the child. If they have expertise, influence, status and access within the local authority, they will certainly be able to do that.
    We want consistency in what local authorities are asked to do while leaving local authorities with flexibility and scope in how to carry out that process. We need a balance between the centre devising the standard and the local agencies devising the mechanism. We do not believe that it is the Government's role to prescribe whom the local authorities should employ.
    I believe that the Government's role is to ensure that the level of service for the review of children's care plans is consistent across the country. We shall set standards to ensure this consistency in regulations made under Section 26, which would be amended by Amendment No. 115. Those regulations will enable local authorities to assure themselves that the people or agencies to whom they give the reviewing officer role are in a sufficiently independent position. Of course, we shall be consulting on that and getting best advice and best practice.
    As I said, reviewing officers currently can be drawn from separate external organisations. However, we believe that this should be a matter for local authorities to decide. They will have different views, and we want to be able to tell them to use their discretion and best practice. We also want them to be aware of best value because reviewing services is one aspect of the best-value provisions.
    I take the point made by the noble Baroness, Lady Noakes, about internal best practice, such as that at Westminster. I shall not reiterate those examples. However, a copy of a letter with various examples was sent to the honourable Tim Loughton in another place. I should be happy to have copies of that letter and the examples sent to her and to any other noble Lord who thinks it would be useful.
    We would therefore be concerned if the legislation obliged local authorities to change current arrangements for the reviewing of care plans. We believe that those arrangements are working very effectively in many places and are in the best interests of children. Moreover, they are influencing other local authorities and creating continuity and responsibility.
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    The Government's intention is to make reviewing officers independent of the management of a case and capable of calling the local authority to account. That will apply whether they are part of an authority or from a separate organisation. That builds on what we know to be good practice and what is currently working. I hope that, with those assurances, the noble Baroness will feel that the case she has made is answered and that she is able to withdraw the amendment.
    Baroness Noakes: I should like to ask the Minister just one question. Does she think that she is capable of expressing in regulation this concept of "capable of calling the local authority to account"? It is relatively easy to specify independence, as that can be measured by a series of objective tests. I am a little unclear, however, as to how the regulations could deal with the matter of establishing this type of internal status. I accept that dealing with the matter of "sufficient clout" within local authorities would reduce concern about the lack of independence in employment.
    Baroness Andrews: I take the point. We are addressing a number of rather subtle issues in relation to which performance management is part of the context. It may be that a combination of regulations and guidance will enable us to meet that point.
    Baroness Noakes: I thank the Minister for that very comprehensive reply and for offering to pass me a copy of the letter sent to Mr Loughton, which I would be grateful to see. The point that I have just raised is an important one and perhaps the Minister will let me have any thoughts on it. It is important that the review processes not only are independent but are seen to be independent; on that will rest the credibility of the services. In the meantime, I beg leave to withdraw the amendment. However, I would value any further guidance from the Minister.
    Amendment, by leave, withdrawn.
    Clause 115 agreed to.
    Clauses 116 and 117 agreed to.
    6 p.m.
    Baroness Massey of Darwenmoved Amendment No. 116ZA:
    After Clause 117, insert the following new clause—
    "SEPARATE REPRESENTATION OF CHILDREN AND THEIR INTERESTS
    In section 37 of the 1989 Act (powers of court in certain family proceedings), after subsection (6) there is inserted—
    "(7) Where in any family proceedings in which a question arises in respect to the welfare of any child, the court shall have particular regard on the evidence before it to—

    (a) the wishes and feelings of the child considered in the light of his age and understanding, and

    (b) the need for the separate representation of the child concerned and upon making an order for separate representation the court may appoint a children's guardian and these shall be considered specified proceedings within the meaning of section 41 of this Act (representation of child and of his interests in certain proceedings)."

    The noble Baroness said: I must apologise to the Committee for arriving late, but I was involved in a Select Committee just across the way.
    The issue of listening to children and the representation of children has been discussed in relation to earlier amendments to the Bill. I make no apology for raising the issue again. I know that all Ministers care very deeply about this issue. I also know that a great deal is being done across government departments to involve children and young people in issues affecting them. The All-Party Parliamentary Group for Children, of which I am co-chair, strongly supports this involvement of young people in issues which affect them.
    This amendment seeks to ensure that children are heard in family proceedings, and that children in private law proceedings have the same right to protection as those in public law cases. At the moment, they are disadvantaged. Not only would this amendment remove an anomaly, it would make certain that both the Adoption and Children Bill and the Children Act are compliant with rights set out in the European Convention on Human Rights.
    The current lack of independent representation of children involved in private proceedings under the Children Act makes the UK liable to challenges for breach of Article 6 of the European Convention on Human Rights. It states that a child is entitled to the opportunity to present a case on equal terms with others, a right that has been reinforced in European case law.
    It would be disappointing if, in this Bill, the entitlement of children were not stated clearly and loudly. I heard what the noble Lord, Lord Hunt, said earlier; I would not wish all that to be repeated again and I will read it carefully. However, there should be a clear procedure set out in the Bill to ensure that a child's view is represented to the court independent of the adoption agency, the applicants and the birth parents where necessary.
    The European Forum on Child Welfare has carried out research into discrimination against children and its findings are powerful. For example, children seem to be considered to be the object of law, not the subject. Laws often concentrate on the protection of children, important though that is, rather than on encouraging children to be autonomous. The noble Baroness, Lady Andrews, implied earlier that children and young people can be vocal and articulate about their own needs.
    The Convention on the Rights of the Child has specifically expressed concern about safeguarding the child's interest in adoption proceedings. Article 12(2) of the convention states that:
    "The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".
    The European Convention on the Exercise of Children's Rights seeks to specify the procedural rights of a child to be heard in respect of family
    CWH 378
    proceedings, including the right to be informed and express his or her views, the right to reply in person or through other persons to be represented and the right to be assisted in expressing his or her views. It is clearly important that a child should be dealt with in a way that takes account of age, level of maturity and intellectual and emotional capacity and that measures are taken to encourage every child's ability to understand and participate effectively in proceedings about his own welfare. I submit that a child-centred approach is not only morally and ethically right, but that the child's right to be heard should be backed up in law.
    I recognise and appreciate that the Government have given some assurances to the House of Commons Special Standing Committee that children will be a party to proceedings in placement order cases, with the appointment of children's guardians and the right to separate legal representation. However, there is still lack of guarantee that all the necessary investigations of a child's welfare will be made in every adoption case with an independent check of social work practice. If the child felt that there was a problem with a proposed adoption, the guardian could be made aware of that and could alert the court.
    The Law Society has suggested that the Bill be amended to provide that placement proceedings, which will be closely linked to care proceedings and adoption proceedings, be specified proceedings under Section 41 of the Children Act. In such proceedings, the court appoints an officer of the Children and Family Court Advisory and Support Services, to which the Minister referred during a previous debate. CAFCASS could represent the child unless satisfied that it is not necessary to do so to safeguard the child's interests. Thus, the child's wishes could be independently reported to the court in order to ensure proper investigation and presentation of the child's views and welfare.
    The child must have a voice independent of the local authority, the prospective special guardian and the birth family, so that he or she can have proper representation and an independent check by a children's guardian as officer of the court. The Bill does not guarantee this and I hope that the Minister will consider ways in which it can. I beg to move.
    Baroness David: I should like strongly to support this amendment. I have supported endless amendments on getting the views of the child heard. It is important in these proceedings that we should have provision on the face of the Bill. The Department of Health has a good reputation on listening to the views of children. Indeed, the Minister has today made a number of references to hearing the views of the child. It seems to me that in court proceedings it is very important that should be heard.
    I have more confidence in the Department of Health than in the Department for Education and SUN. The other day I had a failure in getting an amendment accepted which I thought ought to have been. Therefore, I hope that today the Minister—I

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    understand that it is to be my noble friend Lady Scotland—will make a real commitment to accept this one.
    The Earl of Listowel: I rise to speak to the amendment which also stands in my name. Following the full laying out of terms by the noble Baroness, Lady Massey of Darwen, and having spoken to a similar amendment on Monday, I will not repeat what has been said.
    I raised a problem with the Minister. I was grateful for the full response of the noble Baroness, Lady Scotland, at the previous occasion, and I asked her what she expected to happen in the case of a mother threatened with imprisonment for not allowing contact. That question was not then addressed by the Minister, although her general response was that the courts must proceed on a case-by-case basis.
    I would be grateful if further information were provided on what would be expected in cases in which mothers are threatened with imprisonment. Perhaps the noble Baroness, Lady Scotland, would write to me on that. I find it hard to imagine a situation in which the loss of a mother to prison would be in the best interests of the children. I am asking for assurance that in such cases at least a guardian will have been appointed and a report produced on the consequences of the decision on the welfare interests of the child.
    I apologise for not giving the noble Baroness notice of the question. In speaking with Women's Aid today, I hear that there are seven cases on its books where women appear to be under threat of imprisonment for not allowing access to their children. That is a matter of great concern. Perhaps over the Summer Recess there might be an opportunity to obtain independent examination of those cases, and when we return we will have a clearer idea of what is happening on the ground. I would certainly be grateful for more information on this matter.
    Lord Hardie: I apologise for not being here at the commencement of the proceedings today. I had not intended to speak, but I rise to support this amendment.
    In dealing with Amendment No. 114, the Minister said that the Government were taking seriously the principle of listening to children and I was heartened to hear that. However, in the context of court proceedings, I believe it is appropriate that the court should be enjoined to listen to the needs of children, and to take into account the wishes of the children. They should have regard to the age and understanding of the child in question. I also believe it is appropriate for the court to give consideration to the need for separate representation for a child in appropriate cases.
    I suspect that the matter may already be covered by legislation because there are provisions in Scotland which do so. I was somewhat surprised to see this amendment but ask that if the matter is not covered, the Government should accept it.
    Baroness Howarth of Breckland: I support the amendment. With due deference to where the noble Baroness, Lady Scotland, believes we are at the moment, I am concerned about the difficulties that there are in understanding the differences between public and private law, and the apparent differences in the rights of children under private and public law. I want to be sure that the needs of children are seen as paramount in all these situations; that the child's welfare is considered first and foremost. That principle is contained in the 1989 Act and it is written into this Bill—which, it is to be hoped, will become an Act—that the child's welfare must be paramount throughout his life. I notice that the Bill refers only to "his", but sooner or later we will get the language right. I hope that we will achieve that kind of framework.
    I wish to raise a point in regard to good developmental practice. We know from research that when children are involved in situations such as divorce, friction within families, being moved, adoption, and so on, they do better when they have had help and support throughout the process. Thus separate representation— having someone who is there on their behalf and listening—can help them to express views. Many of us who have listened to children over the years know that, when asked about choice, they find it very difficult to make choices at times of crisis in their families. A separate, independent person listening to them can often help them to sort out those choices and make them. That is why I support this amendment.
    Baroness Scotland of Asthal: I thank all noble Lords who have spoken. I agree with my noble friends Lady Massey and Lady David, and the noble Earl. Lord Listowel. However, in family proceedings, a court in which a question arises in regard to the welfare of a child should consider evidence about his or her wishes and feelings in the light of his or her age and understanding. This is a crucial aspect of the proceedings.
    I should say to my noble friend Lady Massey that children are not disadvantaged at the moment in private law cases. We understand the need for compliance in relation to the European Convention on Human Rights. Indeed, our legislation at the moment makes adequate provision to ensure that we do not breach Article 6.
    However, we have to look at not only the provisions of this Bill but at the legislative framework in which this Bill will fit. We have to look at it in the round. I can reassure the noble and learned Lord, Lord Hardie, that, as in Scotland, we have these provisions covered for England and Wales. We have not been dilatory in relation to our English and Welsh citizens.
    Provision is already catered for in the welfare check list included in Section 1(3) of the Children Act. It is not an optional consideration; it is mandatory and assists the court in its paramount consideration of the child's welfare.
    The Earl of Listowel: I thank the Minister for giving way. Is she aware of the concern that, following the Court of Appeal's ruling in re A v N in 1996, the welfare of the child is not the paramount consideration when a parent is being sentenced for failure to comply with a contact order? Is she further aware that there is concern that the case law in this matter seems to have worked against what is in the Children Act and that the interests of the child and consideration of the paramountcy of the welfare of the child is not being put into practice?
    6.15 p.m.
    Baroness Scotland of Asthal: I cannot accept that the paramountcy of the best interests of the child is not being put into practice. Of course I accept that where a court is having to deal with a contempt—which is a breach of a court order to comply—the court will have to consider whether there has been a breach and the most appropriate sanction for that breach.
    In relation to the second issue, the court will take into account the paramount best interests of the child and certain issues have to inform that judgment. If the parent is a perfectly satisfactory one and has not behaved in an abusive or otherwise dilatory way towards the child, it may considered that the child's continuance in the relationship with that parent is in the child's paramount best interests. The mother's frustration of that has to be taken into account. Members of the Committee will know that the courts often use breach as a way of discussing this issue with the parents and imprisonment is only used as a last resort —usually when everything else has failed.
    Thus, the paramount best interests of the child may involve a combination of many different factors which the court must ultimately balance. The court must consider whether the mother is likely to purge her contempt, if they find her in contempt. It must also discover what is the best and most appropriate way to deal with the contempt, which I understand can be a difficult balancing exercise. In making any decision in relation to the child, as opposed to in relation to the parent, the child's best interests remain the paramount interests that the court has to take into account.
    Section 1(3) of the Children Act runs throughout all private law cases. The welfare checklist will be applied in all proceedings set out in Section 1(4) of the Children Act—that is, when making, varying or discharging Section 8 orders, such as contact, residence, specific issue or prohibited steps orders, or making, varying or discharging care or supervision orders under Part 4 of the 1989 Act.
    Subsection (7)(b) of Amendment No. 116ZA requires a court, again in any family proceedings in which a question arises in respect of the welfare of a child, to have regard to the evidence before it on the need for separate representation of the child. Once again, we absolutely agree that this is an important consideration, which is already provided for in the existing system. In specified proceedings under Section 41 of the Children Act, such as care or supervision
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    order cases, both a CAFCASS officer and a solicitor are appointed on behalf of the child, and the child is a party to the proceedings.
    As we set out on Monday on Amendment No. 117ZZA, moved by the noble Earls, Lord Russell and Lord Listowel, children's views are already put before the court in private law proceedings within the independent CAFCASS officer's report. My noble friend Lord Hunt reiterated earlier today the provisions in relation to Rule 4.11B, in particular Rule 4.11B(5), and its consequences.
    I want to comment briefly on the family proceedings rules. There are advantages in issues being dealt with within the family proceedings rules. In practice, those rules can be changed as the practice and understanding changes in relation to how best we can meet children's needs. It is a much more flexible tool. It enables the subtraction of some things that are obsolete and no longer necessary, and amendment in relation to changes that are perceived to be productive and constructive to the benefit of children and their families.
    The practice in recent years has involved wide consultation in relation to the family proceedings rules, and it has been the result of the efforts of many who are directly involved in the treatment and care of vulnerable children, together with those professionals and judicial and other officers who have been entrusted with the charge of this delicate issue. Therefore, it is a very good tool for us' to have available to us in order to meet the needs of children.
    As I explained on Monday, and as my noble friend Lord Hunt reiterated today, the Government are currently undertaking a scoping exercise before undertaking wider consultation on how children are represented in private law Children Act proceedings. Our current plans anticipate a full consideration commencing later this year. It was emphasised effectively during the helpful debate on this issue that we had on Monday that the mechanism for allowing a child to be separately represented is already in place. We want to identify what more can be done to ensure that the voice of the child is heard more effectively.
    The noble Baroness, Lady Thornton, who I see is now in her place, was concerned that we were needlessly consulting. I appreciate that we do not want to delay this issue but the best way of hearing the child's voice is by, first, consulting those organisations working in the field who represent children and families to obtain their detailed views and proposals for change. If we fail to do that, we are doing what those in this Committee have urged us not to do; that is, failed to listen to what the children say about how best to help them. That is an important issue, and I know that all Members of the Committee are anxious to get this right.
    Subsection (7)(b) of the amendment refers to an order for separate representation. We have assumed that the intention of this part of the amendment is that where a court makes a child a party to the proceedings it may appoint a children's guardian. In those circumstances, the amendment would make such

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    proceedings specified proceedings within the meaning of Section 41 of the Act. As I have said, the court may already make the child a party to the proceedings and, once made a party, the child, through his or her solicitor, may apply to the Legal Services Commission for public legal funding. It is best that we retain flexibility in the private law sphere, especially in advance of any wider consultation on the most appropriate representation of children in private law cases.
    I hope to reassure the noble Earl, Lord Listowel, because he asked whether the children will be represented in cases where the mother is potentially threatened with imprisonment. Currently, in those cases, it is usual to consider appointing a CAFCASS officer, formerly a court welfare officer, before committing any carer. Of course, it would very much depend upon the nature of the commitment. I can think of a case a long time ago in which there was a brief commitment—it was a commitment over lunch—
    for the mother to consider her position but in which a CAFCASS officer was not involved. However, in the majority of such cases, a court is regularly advantaged by having a CAFCASS officer to assist in what is best in the interests of the child.
    I remind Members of the Committee that, even in those cases where no one makes an application for a CAFCASS officer to be appointed, the court can of its own volition request the assistance of a CAFCASS officer to get that sort of advice if it feels that it is shortly to make an order that may impinge adversely on the best interests of the child. So there is already ample scope for that.
    I hope that I have been able to reassure the Committee that the Bills—I say "Bills" because I am speaking not only of this Bill—already contain adequate provision. It is perhaps quite easy to misunderstand the position. One must consider the entire framework. Not all provisions are necessarily found in one Bill, and it is unnecessary to replicate provisions that are already well understood and in place.
    Baroness Howarth of Breckland: It seems clear from talking to practitioners and from involvement in various cases that children are not always represented as the noble Baroness, Lady Scotland, has described. The representation she describes would clearly meet many of the requirements for which people are pressing. Is there some way in which the Government can remind those who are with the children of the position? The lawyers do not always press in the way that is in the child's best interests. It is important that people realise that this provision is available to them and that they press and ensure that the guardian is appointed.
    Baroness Scotland of Asthal: I can certainly reassure noble Lords in that regard. As noble Lords will know, the Legal Services Commission already has a framework that permits only those with the quality mark to undertake specialist work involving children
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    and their families. Now, legally aided work—as we used to call it—will be undertaken only by those with that quality mark and the expertise to undertake it.
    It is right that improving quality is very important. However, we have also taken steps to ensure that all judicial officers who undertake this work have not only the appropriate ticket to do it but the specific training to make them truly fitted to undertake and do it properly. As noble Lords will know, there is not only judicial training before appointment, but a routine—once every three years—refresher course after appointment. There is also specific training in relation to any new legislation for all those who do this work.
    So we are seeking to make every effort to ensure that those involved in this work fully understand the importance of ensuring that the child's voice is heard and that, if at all possible, only that which is to the child's benefit is done.
    Baroness Massey of Darwen: I thank the Minister for that typically thorough reply, although she made it without once using her favourite word—robust. I appreciate what she said. I also agree that it is important to consider the whole legislative framework. However, she herself has described the complexity that many find disturbing and difficult.
    Like many of us, the noble Baroness, Lady David, has gone on and on about the need to listen to children and to take their views into account. We shall continue to do that. Despite the Minister's explanation, and like the noble Baroness, Lady Howarth, I find it difficult to understand the complexities in public and private law in relation to children. In an earlier debate, the noble Baroness, Lady Thornton, I think, described that complexity as preposterous. Many of the children's organisations to which the Minister referred are equally concerned about these issues.
    Welfare checklists, guidelines and cross referencing between Acts can be confusing. I suspect that things sometimes fall through the mesh. I would still he interested in introducing in this Bill something to draw together all the components.
    I shall read very carefully all that has been said about the issue of listening to children and the representation of children. In the meantime, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 118 [Restriction on advertisements etc.]
    6.30 p.m.
    Earl Howemoved Amendment No. 116A:
    Page 69, line 7, after "from" insert "or bring a child to"
    The noble Earl said: Clause 118 of the Bill takes us into Part 3, which begins by setting out a range of provisions that restrict the publication of advertisements relating to adoption. A parent or guardian of a child cannot advertise the fact that he or she wishes a child to be adopted, nor can anyone advertise the fact that they wish to adopt a child: nor can anyone other than an adoption agency advertise their services to facilitate an adoption. These

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    provisions largely repeat the corresponding section of the Adoption Act 1976 and are surely right and necessary.
    One cannot have a free for all in the field of adoption. Any licence to trump or circumvent the laid down procedures risks doing the one thing that the Bill sets its face against, which is jeopardising the welfare of children. A new element though is the prohibition of any advertisement that indicates the fact that someone is willing to remove a child from the UK for the purposes of adoption. I am entirely in sympathy with this provision as well, because without it one would effectively have a licence to engage in an activity that is uncomfortably close to that of child trafficking.
    There may well be circumstances in which it is appropriate for a child from this country to be adopted by a family abroad, but it is not right for such a practice, as a generality, to be encouraged by means of advertisements.
    There is, however, a slight puzzle in relation to paragraph (e) of subsection (2). If it is right to restrict advertisements to the effect that a person is willing to remove a child from the UK for the purposes of adoption, it is surely appropriate that advertisements that indicate a person would be willing to bring a child into the UK should be similarly restricted. This is the very simple purpose of my amendment. I do not believe we should countenance situations where people are free to put themselves forward as facilitators of intercountry adoption, other than individuals who are properly accredited and approved.
    Subsection (2)(c) sweeps up a number of activities that will be illegal under Clause 90(2), but I cannot see that any of these correspond to the activity referred to in my amendment. I beg to move.
    Lord Hunt of Kings Heath: I have considered this very carefully, and the noble Earl, Lord Howe, is quite right to make reference to Section 92. The point he makes is absolutely right, and I have no disagreement with him at all about the principle. My view is that we are covered because of the link between the clause that he has amended and Section 92. The combined effect of the safeguards provided by both clauses would be to prevent a person advertising that he is willing to bring a child to the UK for the purposes of adoption.
    The steps that are set out in Clause 92 are relevant to the concern at the root of this amendment about offering to find a child for adoption. For example, where one person says to another that he can locate a child for that person to adopt, he will be caught by paragraph (c) of Clause 92. When a person, a parent of a child or an intermediary who has already identified a child to be adopted offers that child to another for adoption, the person who so offered would be caught by paragraph (d) of Clause 92.
    In addition, if that person were to hand over a child for adoption to the person who would adopt him or to someone else who would pass the child to the adopter, he would be caught by paragraph (e). If he entered into an agreement for the purpose of facilitating the adoption of a child, he would be caught by paragraph
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    (g) If he initiated or took part in negotiations intended to lead to an agreement within paragraph (g) for the adoption of a child, or an agreement to facilitate the adoption of a child, he would be caught by paragraph (h). In relation to causing another person to take any of these steps, he would be caught by paragraph (i).
    It is an offence under Clause 118 to advertise a willingness to do any of these things, so a person who advertised in the UK his willingness to bring a child to the UK for the purposes of adoption would be caught by the Bill's provisions. If a person were to advertise in such a way as to avoid falling within these restrictions, we consider that if he then made arrangements for an adoption in England or Wales his actions would be caught directly by Clause 90 with its restrictions on who may arrange adoptions.
    I hope that my explanation has made matters clear to the noble Earl and that he will agree that his amendment is not needed. I have no disagreement at all with the point that he seeks to make.
    Earl Howe: I am most grateful to the Minister and, on the basis of what he said, I am satisfied. I read Clause 90(2) and I was not clear that my point was covered by it. However, the Minister said that it is and that is an extremely useful marker if ever this point were to come up before the courts. Nevertheless, I should like to think further about this matter between now and Report stage. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 118 agreed to.
    Clauses 119 to 134 agreed to.
    Schedule 3 [Minor and consequential amendments]:
    Lord Hunt of Kings Heathmoved Amendment No. 117:
    Page 108, line 12, at end insert—
    "At the end of section 5 (registration authorities) there is inserted—
    "(2) This section is subject to section 36A."
    In section 11 (requirement to register), in subsection (3), for "reference in subsection (1) to an agency does" there is substituted "references in subsections (1) and (2) to an agency do"."
    On Question, amendment agreed to.
    Schedule 3, as amended, agreed to.
    Schedule 4 [Transitional and transitory provisions and savings]:
    Lord Hunt of Kings Heathmoved Amendment No. 117A:
    Page 110, line 20, at end insert—
    "Regulation of adoption agencies
    3A (1) In section 9 of the Adoption Act 1976—

    (a) for "Secretary of State" in subsections (2) and (3) there is substituted "the appropriate Minister", and

    (b) at the end of that section there is inserted—

    (5) In this section and section 9A, "the appropriate Minister" means—

    (a) in relation to England, the Secretary of State,

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    (b) in relation to Wales, the National Assembly for Wales,

    and in relation to England and Wales, means the Secretary of State and the Assembly acting jointly."
    (2) Until the commencement of the repeal by this Act of section 9(2) of the Adoption Act 1976, section 36A of the Care Standards Act 2000 (inserted by section (Distribution of functions in relation to registered adoption societies) of this Act) is to have effect as if, after "2002", there were inserted "or under section 9(2) of the Adoption Act 1976"."
    The noble Lord said: This group of amendments follows on from the amendments that we debated on 24th June dealing with the registration of voluntary adoption agencies. As we then discussed, voluntary adoption agencies may be registered in England but have branches in Wales, or be registered in Wales but have branches in England. Regulations governing the operation of voluntary adoption agencies may be made under Clause 9 of the Bill jointly by the Secretary of State and the National Assembly for Wales.
    However, we also want to make similar regulations governing voluntary adoption agencies before the Bill is brought into force. The National Care Standards Commission is to take over regulation of voluntary adoption agencies from 2003 in advance of the main implementation of the Bill and we want to make regulations to accompany this and underpin the new arrangements.
    For regulations governing voluntary adoption agencies made under the 1976 Act, we would like to have the power to make these regulations jointly by the Secretary of State and the National Assembly for Wales because of the issues concerning the cross-border operation of voluntary adoption agencies which I explained when we debated Government Amendments Nos. 50, 106, 117 and 119 on 24th June.
    There are other regulations with cross-border implications that we want to make before full implementation of the Bill in 2004. We have said that we aim to establish the independent review mechanism over 2003. The provisions relating to the independent review mechanism allow for one body to perform this function across England and Wales. Paragraph 4 of Schedule 4 inserts new Section 9A into the 1976 Act to provide for the early implementation of the independent review mechanism. In line with the provision in Section 9, we would like to provide for the regulations in this section to be appropriate Minister powers as well. Amendments Nos. 117B to 117G therefore make the powers in new Section 9A appropriate Minister powers.
    These are detailed amendments but they are in essence consequential on the approach we are taking to resolve the cross-border registration and regulation problem, which we would like to see implemented before the implementation of the Bill. That is why these consequential amendments are now being proposed. I hope that Members of the Committee will support that. I beg to move.
    On Question, amendment agreed to.
    Lord Hunt of Kings Heathmoved Amendments Nos. 117B to 117H:
    Page 110, line 27, leave out "Secretary of State" and insert "appropriate Minister".
    Page 111, line 1, leave out "Secretary of State" and insert "appropriate Minister"
    Page 111, line 4, leave out "Secretary of State" and insert "appropriate Minister"
    Page 111, line 7, leave out "Secretary of State" and insert "appropriate Minister"
    Page 111, line 9, leave out "Secretary of State" and insert "appropriate Minister"
    Page 111, line 10, leave out from first "the" to third "the" and insert "appropriate Minister is"
    Page 111, line 16, leave out sub-paragraph (2).
    On Question, amendments agreed to.
    Schedule 4, as amended, agreed to.
    Schedule 5 [Repeals]:
    [Amendment No. 118 not moved.]
    Lord Hunt of Kings Heathmoved Amendment No. 118A:
    Page 117, line 47, after "3" insert "3A"
    On Question, amendment agreed to.
    Schedule 5, as amended, agreed to.
    Clause 135 [Orders, rules and regulations]:
    Lord Hunt of Kings Heathmoved Amendment No. 119:
    Page 79, line 17, leave out "the Assembly" and insert—
    "(b) by the Assembly, unless made jointly by the Secretary of State and the Assembly"
    On Question, amendment agreed to.
    Clause 135, as amended, agreed to.
    Clause 136 [Rules of procedure]:
    Baroness Noakesmoved Amendment No. 120:
    Page 80, line 5, leave out from "that" to end of line 6 and insert "the person may attend and be heard"
    The noble Baroness said: I believe that I have the privilege of leading the last debate of our Grand Committee. I am sure that we are all heartily thankful that the end is nigh. To that end, I shall try to be brief.
    Amendment No. 120 seeks to amend Clause 136 in a small but important way. Clause 136 states that the rules of procedure must require notification of placement or adoption hearings to persons whose consent is required, essentially birth parents. However, this notice must say that the person need not attend unless the court requires it or the person wishes it.
    The message given by that is that the parent is not an essential part of the process. It implies that the proceedings can perfectly well go ahead without them. Although that may be the right answer technically, it is not the right answer in human terms. Parents will doubtless be in an emotional state when they let their children be adopted and may well be ultra-sensitive to any suggestion that they are to be ignored by the process. Many may not be sophisticated enough to work out that the message that they may attend if they wish means what it says, and can take precedence over the message that they need not attend.

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    The amendment requires a little more tact and understanding to be included in the notification of proceedings. Parents should be told that they may attend and be heard. Indeed, if we were not dealing with a legal notification, I should go further and say that they should be positively welcomed at the hearing. They should be encouraged to participate if they wish and at least see for themselves that the adoption process for their child is taking place in a fair and balanced way. Children's organisations support this approach, which adds humanity to dry legal process. I beg to move.
    Baroness Andrews: In the spirit of the way that the noble Baroness has moved the amendment, I have abandoned my speaking notes and I shall speak very briefly. We are sympathetic to the intention behind the amendment. However, the old regulations under the 1976 Act set out that rules should provide for every person whose consent is required for an adoption or freeing order to be notified of a date and place and that, unless he wishes or the court requires, he need not attend. The letters which were sent out to parents were slightly more positive. I would not describe them as a positive invitation but a welcoming intention.
    In the existing Adoption Rules 1984, Rule 23(1) builds on the primary legislation by stating that any person upon whom notice is required to be served under Rule 21 may attend and be heard on the question of whether an adoption order should be made. We are not aware of any difficulties being caused in practice but we see no reason why we should not consult on a similar proposal when we consult on the detailed court rules.
    I am also aware that the amendment seeks to make explicit what is implicit. We intend to take it away between now and the Report stage and look at the
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    implications of reflecting this in the Bill. This last amendment that we shall speak to on the Bill reflects what has been, certainly from my side of the Committee, a positive and enjoyable stage of deliberations.
    Baroness Noakes: I heartily thank the noble Baroness for that response. It is exactly what I wanted to hear and is a very fitting note on which to end our debates in Grand Committee. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 136 agreed to.
    Clauses 137 and 138 agreed to.
    Clause 139 [General interpretation, etc.]:
    [Amendments Nos. 121 to 123 not moved.]
    Clause 139 agreed to.
    Clause 140 [Devolution: Wales]:
    Lord Hunt of Kings Heathmoved Amendment No. 124:
    Page 84, line 1 at end insert—
    "() In Schedule 1 to that Order, in the entry for the Adoption Act 1976, "9" is omitted.
    () The functions exercisable by the Assembly under sections 9 and 9A of the Adoption Act 1976 (by virtue of paragraphs 3A and 4 of Schedule 4 to this Act) are to be treated for the purposes of section 44 of the Government of Wales Act 1998 (parliamentary procedures for subordinate legislation) as if made exercisable by the Assembly by an Order in Council under section 22 of that Act."
    On Question, amendment agreed to.
    Clause 140, as amended, agreed to.
    Remaining clauses and schedules agreed to.
    Bill reported with amendments.
    The Committee adjourned at thirteen minutes before seven o'clock.