Grand Committee Report of 27 June 2002

Official Report of the Grand Committee on the
  Adoption and Children Bill

    The Committee met at four of the clock.
    [The Deputy Chairman of Committees (Lord Murton of Lindisfarne) in the Chair.]
    The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Before I call the first amendment, I should like to inform the Committee that a photographer will be taking a small number of photographs early in our proceedings today. This is for internal purposes, for inclusion in our Annual Report.
    I think that all noble Lords are familiar with the procedure. I shall simply remind the Committee that if there is a Division in the Chamber while we are sitting, we shall adjourn as soon as the Division Bells are rung and resume after 10 minutes or as near as possible to that time.
    Lady Saltoun of Abernethy: Before the proceedings start, may I make one comment? At Monday's Sitting it was very difficult to hear some Members of the Committee speaking. If one has to speak standing up, these microphones are not in the right place. Would it be possible in future Sittings either to have taller microphones, or for them to be propped up on a pile of books, as the Ministers and Shadow Ministers have done? Otherwise it is extremely difficult to hear.
    Deputy Chairman of Committees: The noble Lady's comments have been noted and we shall see what we can do.
    Clause 4 [Assessments etc. for adoption support services]:
    Baroness Noakes moved Amendment No. 15:
    Page 4, line 12, after "needs" insert "or needs of connected persons"
    The noble Baroness said: Amendment No. 15 deals with one minor aspect of this extremely important clause, the bulk of which my noble friend Lord Howe will address in a later amendment. Amendment No. 15 simply widens the net of persons whose need for adoption services must he addressed by an assessment.
    Clause 4(1) deals with those who may request assessments. We do not know precisely who those people are. Paragraph (a) says that it covers those mentioned in Clause 3(1)—namely, children to be adopted, their parents and guardians, and,
    "(b) persons wishing to adopt a child, and
    (c) adopted persons, their parents, natural parents and former guardians"
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    Clause 4(1)(b) says that,
    "any other person who falls within… regulations",
    can apply under subsection 7(a). However, we do not yet know who those people are. I hope that the Minister will say something about what those regulations will contain.
    The main point is that the authority must assess the needs of the person who applies for an assessment under Clause 4(1) and not the needs of any other person. An adopted child can therefore apply for a needs assessment for himself but not for, say, his siblings or blood grandparents.
    The Minister may say, as the Minister said in another place, that the assessment would in practice involve the whole family. However, the clause does not say that; it says that the applicant's needs are to he assessed. There can be no certainty that local authorities will include any connected person, let alone the full range of people that the applicant considers to be connected to his case.
    In replying to the amendment, I hope that the Minister will also say what arrangements are to be made for applications by persons who are not competent to make applications for themselves; for example, very young children or adults who have mental impairment. The wider family may well include those who are not articulate enough or competent enough to make their own application I hope that the Minister will be able to reassure us about the processes which underpin the widest possible access to needs assessments under Clause 4. I beg to move.
    Lord Campbell of Alloway: I sound a note of caution on this. There is no definition of "connected persons" in the interpretation section, at Clause 139, on page 82 of the Bill. As subsections 4(1)(a) 4(7)(N show, this definition of "other persons" could well conflict with the persons described in those regulations. One has to take that on board to avoid some possible confusion. The resolution is in the form of the regulations, and here we come to the main problem. I raise it only once today. In a sense, we beat the air until we have the draft regulations; we came across that problem on clay one. The Minister said, and I understand it, that we shall not have them until after Royal Assent.
    Winston Churchill once said that the most intractable problems solve themselves in time, and we have a little time; we have the long Recess. Perhaps we could have but a draft of these regulations before we come back to Report. It is only a respectable suggestion—I hope it is respectalble but it is respectful—because, quite frankly, I find it impossible to get to grips with the substance of much of this until I see the draft of the regulations.
    Perhaps that could be taken as a hope or a prayer. I could give all kinds of examples; I will not waste time but I went through them this morning. There are many examples today on the Marshalled List of amendments to which this applies. However, the regulation under

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    the structure of the Bill will define this matter and one does not want to table an amendment which conflicts with the regulations as defined in the Bill.
    Baroness Barker: I rise briefly to support the noble Baroness, Lady Noakes, and also to support the noble Lord, Lord Campbell of Alloway. I believe that most Members of the Committee would add their support to that heart-felt plea, and not just in connection with this Bill.
    First, I declare an interest as an employee of Age Concern—I hope the one and only time I will do so on the Bill. The particular point that I want to follow is that made by the noble Baroness, Lady Noakes, concerning grandparents.
    Grandparents, it seems to me, often have a very rough time during the process of adoption. They often fall between one set of assessments or are viewed in different ways. I do not suggest that their rights ever conflict with the welfare of children, but I believe they are sometimes treated differently, and often badly, historically. That is why I want to support the noble Baroness, Lady Noakes, in trying to seek a clear definition of "associated persons".
    The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): I understand that noble Lords are anxious to have a better feel of what might be covered in the regulations, because clearly the approach that the Bill takes is to set out some very broad principles in the primary legislation but then to leave much of the detail to regulations. I know that Members of the Committee would like nothing better than for me to produce draft regulations so that they can be considered.
    There are considerable difficulties in doing that. One of the points that I made on the first day of Committee was that a great deal of consultation needs to take place with the relevant organisations, but much of that will eventually appear in regulations. That work has not taken place. As Members of the Committee will know the noble Lady, Lady Saltoun, pressed me on the date of implementation and expressed disappointment that we were looking to 2004 for that implementation date.
    The fact is that an awful lot of ground work needs to be done before we are in a position to produce draft regulations. However, I hope that as we go through the discussion in Committee we are able to give at least a flavour of what will be covered by those regulations together with a commitment that there will be very extensive consultation.
    I recognise that very important matters raised in this amendment, although the noble Baroness, Lady Noakes, described it as a fairly minor issue. I recognise the importance of eligibility to assessment, either in terms of a requirement under Clause 4(1) or a discretion under Clause 4(2), but we want to be as clear as possible as to who will be covered. As the noble Baroness, Lady Noakes, made clear, the persons listed at subsection (1) of Clause 3 will all be entitled to an assessment of their needs for adoption support
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    services. These persons are children who may be adopted, their parents and guardians, prospective adopters and adopted people, their adoptive parents, birth parents and former guardians.
    Adoptive families will not need to wait until after an adoption order has been made to request and receive an assessment of their needs for adoption support services. They will be able to request an assessment at any time; for example, when they have been matched with a child or when a child has been placed with them.
    As the noble Baroness, Lady Noakes, suggested, additional persons prescribed in the regulations made under subsection (1)(b) of Clause 4 will also have the new right to an assessment. These persons will be those listed in the regulations made under subsection (3)(a) of Clause 3 for whom local authorities must make and participate in arrangements to provide adoption support services. It is the Government's intention that they will include birth and adoptive siblings of adopted people and children who may be adopted. However, we shall consult widely on the contents of those regulations as part of the new national framework.
    As regards the technical wording of the amendment, the noble Lord, Lord Campbell of Alloway, has put his finger on it in terms of the problem with the definition or not of "connected persons", but no doubt this is a probing amendment. The issue of the needs of families is an important one. In practice, the needs of adoptive families—adopted children, their adoptive parents and any adoptive siblings—will all be assessed together. It would not be appropriate for the child's needs to be addressed in isolation, so the assessment will look at the needs of the family as a whole. Where a child is not of sufficient age and understanding to request an assessment, his parent may request the assessment on his behalf. An older child may choose to request an assessment himself or alternatively his parent may request the assessment on his behalf.
    It is also worth making the point that, in relation to an adult who lacks capacity to request an assessment of needs for adoption support services, a carer may make such a request on his behalf. We intend to issue statutory guidance—and I am tempting fate by mentioning that word—to local authorities on the assessment process. That guidance will make the position clear. It may also make clear local authorities' responsibilities in respect of the carer's needs for adoption support services.
    Subsection (2) of Clause 4 gives local authorities a power to carry out an assessment of any person who does not have the right to such an assessment. I come to the point raised by the noble Baroness, Lady Barker. This would then enable local authorities to assess the needs of any other person, such as a grandparent, living with the adoptive family or indeed a carer or any person affected by adoption where they consider this appropriate, in order to respond to the individual circumstances of the family. Clause 4(2) is a very important flexibility which allows local authorities to use their discretion as may be appropriate. I hope that I have made the position of the Government clear and have answered as fully as I can the points that have been raised.
    4.15 p.m.
    Baroness Noakes: I thank the Minister for that and readily concede to my noble friend Lord Campbell that there is no definition of "connected persons". The Minister was right; this is a probing amendment and I am sure that we could devise a definition if the formulation were to find favour.
    The Minister reiterated the lack of regulations that we will have during our consideration of the Bill. We on these Benches regret that sufficient work has not taken place to date and the time-scale of implementation. It is difficult to put the matter beyond that. However, it seems that there is a lack of commitment to putting the valuable new provisions in the Bill into operation as quickly as possible.
    Lord Hunt of Kings Heath: There is no lack of commitment: there is a tremendous commitment to ensuring that what we get on the statute book is right and that the implementation programme is undertaken with as much efficiency and effectiveness as possible. There is no doubt that a lot of work needs to be done. I believe that it has to be done very carefully, with full consultation and, of course, your Lordships' House will have the ability, through the scrutiny of regulations, to come back to many of these issues in the future.
    There is evidence that since the original PIU report, and thence the White Paper, local authorities have raised their game and that many of the principles that were enunciated in the White Paper have begun to be adopted. It is not as though no progress will be made between now and 2004. Considerable progress is being made.
    Baroness Barker: How does the Minister know that? That is the problem that some of us have and we shall spend a long time debating it today.
    Lord Hunt of Kings Heath: Two signposts are an increase in the number of adopted children and an increase in the amount of money local authorities have been spending since the financial year 2000–2001. I am pleased to report that and we will turn to the question of money in a moment.
    Lady Saltoun of Abernethy: I must return to the regulations. I am sorry that we cannot have them now, but I am glad to hear that we shall be able to scrutinise them when they are published. Will they be subject to the affirmative process? I do hope so.
    Lord Hunt of Kings Heath: The noble Lady anticipates a debate we are shortly to have. My recollection is that three sets of regulations are subject to the affirmative procedure; the others are subject to discussion if noble Lords pray against them. The point is that, whether they are subject to the affirmative or the negative procedure, there is an opportunity for parliamentary scrutiny to take place. I remind Members of the Committee that we have had some
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    extremely interesting debates on health regulations in the past few months that have been prayed against, so there will be ample opportunity for debate.
    The Earl of Listowel: The Minister referred to the assessment process guidance and we seem to be discussing the wider issue of information necessary for our deliberations at this point.
    Lord Campbell of Alloway: Would the noble Earl speak up?
    The Earl of Listowel: I apologise to the noble Lord for not making myself clear. As we seem to be talking more about the wider issue of information that we need in order to make our deliberations on this Bill, will the Minister tell us about the assessment process? For me an important concern is that adoptive parents are well aware of the responsibility that they are taking on and particularly of the mental health needs of the children they adopt.
    How will it be ensured that the targets being set to increase the number of children being adopted will not lead social workers to cut corners? Can we be assured that as far as possible before the placement takes place the adoptive parents will know that these children sometimes have serious mental health problems? They should know that, even if the children are behaving in an acceptable way at that point, they seem likely, from their assessment, to behave in extreme and possibly challenging ways later. 'Will the Minister write to me on that point if he cannot answer it now?
    Lord Hunt of Kings Heath: I am happy to respond, and also to write to the noble Earl. I take the point that this takes us much wider than the issue of "connected persons". Clearly, to have a vigorous adoption process, it is absolutely right that as much care and attention as possible is given to ensuring that the prospective adoptive parents understand the challenges that they are taking on. There is no question that there is a need for more children to be adopted.
    We all agree about the outcome for adopted children, compared to the issues that face many children who are looked after. We know that the outcome for such children in terms of employment, education, and crime is very poor indeed. In sorting out the processes that we have on adoption, there is every indication that this will lead overall to enhanced lives for so many of these children.
    If there were simply a motivation to increase the number of children adopted without ensuring that there were the most careful processes in place, I fully accept that that would defeat the whole object. I give the noble Earl my assurance that there is absolutely no intention of setting impossible targets that could only be met if people cut corners. The intention is to have a full, rigorous process before such adoption could take place and to ensure that the kind of support services that apply—the noble Earl raised the question of mental health and I entirely agree with him—are provided; and, as we shall debate later, that such notification is made by the local authority after an assessment to the NHS, if that is appropriate.

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    I understand the question of frustration over timing. Nothing would please me better than to say that we could implement in 2003, but I do not believe that we can, nor that it would be sensible. We have only to look back to the implementation of the Children Act, which introduced an 18-month process after enactment of the Bill. During that process, regulations were prepared and commented upon. It is also worth reflecting on how many years it took for the Adoption Act 1976 to be implemented. We need to put that into perspective, and consider past experience with adoption and the Children Act procedures.
    Baroness Noakes: I suspect the Minister will be chided yet further during the Committee's deliberations on the non-availability of regulations and the timing.
    However, to return to my amendment, I was pleased that the Minister said that siblings would be included in regulations. I am also pleased that carers would be able to apply on behalf of those who lacked capacity. I was disappointed, as I am sure is the case with the noble Baroness, Lady Barker, not to hear grandparents mentioned in the same breath. The existence of a discretionary right of a local authority to make a needs assessment on certain other persons is not the same thing as a person being able to apply, as of right, because of his relationship with the adopted child.
    For the time being, as will not surprise the Minister, I shall beg leave to withdraw the amendment. However, I believe that we will return to this matter on Report, though perhaps in a more targeted way. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Earl Howe moved Amendment No. 16:
    Page 4, line 18, leave out from "services," to "services" in line 19 and insert "the local authority has the duty to provide suitable"
    The noble Earl said: We come now to an issue which, perhaps more than any other in the Bill, has united opinion across the political divide; namely, the question of what the Bill ought to say about the role of local authorities in providing adoption support services. In speaking to Amendment No. 16, I shall speak also to Amendments Nos. 18 and 21.
    Clause 4 contains a duty for local authorities to carry out an assessment of a person's needs for support services. The inclusion of that duty has been wholeheartedly welcomed by all commentators. This is a recognition by the Government of how vitally important it is that proper, expert support should be provided to those families who are in need of it. Advice, information, counselling, therapy, respite and financial help—any of these, if provided in a timely and professional way, can make the difference between a placement that works and one that does not; it can make the difference between an adoption that succeeds and one that breaks down; and between a birth parent who is too distressed to cope and one who is capable of making rational decisions.
    Adoptions fail because families feel unable to cope. The majority of children adopted from care have deeply difficult histories and complex emotional damage. The likelihood of an adopted child or his family needing some form of post-adoption help is very high. That help could be something quite simple or it could be something more complicated, such as multi-disciplinary therapies and various kinds of expert programmes. Whatever the case, if we are to improve upon the success rate in adoptions, there has to be help available. To make sure that it is the right kind of help, one thing is essential—early preparation.
    What does that amount to? It amounts to ensuring that an assessment for post-adoption support is carried out at an early stage in the process, the stage when it is decided that the child's best interests lie in adoption. It represents an agreed blueprint for support to which all relevant parties are fully signed up. The assessment then travels with the child into his or her adoption placement and follows on after the adoption order is made. This is a procedure that is followed by some of the best local authorities at the moment; and it works well. To look at the question of what support ought to be provided only after an order has gone through is too late, because a family can easily find itself heading into a serious crisis before help arrives.
    Having talked to the Adoption Forum, the BAAF, the Post Adoption Centre, Adoption UK, After Adoption, and Parents for Children—in fact, all the reputable organisations with day-to-day experience of adoption—I believe that it is not enough for this Bill simply to enable local authorities to provide pre and post-adoption support as and when they decide to do so. The Bill should contain a duty to provide support if the assessment indicates a need. So far, the Government have fought shy of doing this on the grounds that local authorities should have autonomy to decide what services they provide to whom. That would, perhaps, be a reasonable position if there were not so much at stake.
    Before the Minister makes any jibes about noble Lords on this side of the Committee wanting to impose micro-management from the centre, I would suggest to him that there are unique factors to consider here. If we think about the status of adopted children, they are different from that of other children by virtue of the state having intervened in their lives in a fundamental way. That intervention gives rise to a moral obligation on the part of the state to ensure that in every case the new family is given the best chance of working. Nor indeed should we be comfortable with a system that permits adoptive parents who—let us remind ourselves—are performing a unique public service for the benefit of society effectively to be abandoned to cope on their own. With looked-after children, there is no argument; local authorities must provide the necessary services. For children with special educational needs, help must be provided. Disabled children, living with their birth families, must receive support.
    It is inconsistent and wrong not to look at adoption support in the same light. We should say to ourselves that adopted children, like those others, are children in need, and that society has a clear duty towards them.
    The implementation of the moral obligation that society has to adopters implies that adopters deserve respect in the manner in which they are treated. Amendments Nos. 18 and 21 illustrate what I mean.
    It should be incumbent on a local authority to furnish adoptive parents with a written explanation if it decides not to provide support services. In those circumstances, parents should be able to insist on a review of the decision. If all that is achieved by this Bill is a policy on the part of some local authorities, merely to go through the motions of providing an adoption service, we need to reflect on what the effect of that might be. It will certainly affect the recruitment of new adopters. It will certainly mean that children who are hard to place will remain stuck in care. It will mean a higher rate of adoption breakdown, it will lead to a poorer quality of life in adoptive families.
    In framing new legislation for a new century, we should not consciously allow for the possibility of those things. The price of failure is a burden on society that could be far heavier than the cost of supporting adoptive families, as the Minister has already reminded us today. Around 20 per cent of adoptions fail. The cost of adoption pales into insignificance beside the cost of foster care, or the cost of secure accommodation, or, indeed, prison. To economise on adoption is a false economy.
    There could not be any clearer case for the Government to say, "We mean business with the Bill". If they do mean business, they need look no further than these amendments for what they should now do. I beg to move.
    4.30 p.m.
    Baroness Thomas of Walliswood: I rise to support Amendment No. 16 and to speak to our Amendments Nos. 17, 19, 20 and 22.
    Amendment No. 17 follows the assertion of a duty upon a local authority and has the same effect as Amendment No. 18 tabled by the noble Earl, Lord Howe, to which he has already spoken, so I will not pursue it further. The local authority would have to acquire a written explanation of the decision not to supply support services.
    Amendment No. 19 continues our approach by requiring the local authority to make, implement and review a plan for the provision of support services to those assessed to be in need of them.
    Amendment No. 20 is an alternative way of achieving a similar objective. Following the amendment, subsection (5) would have the meaning that whenever a local authority has assessed a need to provide services, it should make a plan for the provision of those services and keep it under review.
    Amendment No. 22 refers to the role of regulation of local authorities. Clause 4(7)(h) covers the role of an adoption agency in seeking to ensure that services
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    continue following the adoptive family's move to another local authority, and that assurance should include the provision of a named official to take over the role that the home authority has been undertaking.
    The noble Earl, Lord Howe, spoke very forcefully. I agree with him that there is an overwhelming argument in favour of the provision of post-adoption services and for insisting on the responsibility of a local authority for planning and ensuring its provisions. The absence of such services is widely regarded as a major predictor of failure in adoption by those most closely involved in the process, and we too have been in touch with the organisations which he named when he was speaking.
    It has been made clear to us that, as many of the children who are adopted have experienced trauma in early life, there may be periods during the process of being adopted, of living in a adoptive family, where problems may arise which require support. However, the people who are working adoption are disappointed because the description in the 2000 White Paper of future legislation as placing,
    "a clear duty on local social services to provide post-adoption support",
    does not appear to be fulfilled in the Bill. It is that clear duty on the face of the Bill that these amendments, and the noble Lords, are attempting to ensure.
    As the noble Earl, Lord Howe, said, the force of this argument is increased by the fact that adoption follows state intervention in the family life of the child and his birth parents, ostensibly to improve the life of that child. We need to make sure that the objective is achieved, and the local authority is the obvious lead organisation to see that that happens.
    Turning momentarily to cost, I understand that inserting clauses or provisions into Bills which have a financial implication is always something which the promoters of a Bill, some of the government Ministers, find a little difficult to accept, and I can understand how that should be. However, if we take a more holistic look at how the balance of costs work out, without going into too much detail, which I could if I really needed to, I believe that one must be struck by the relative costs of keeping a child in prison, in care, or even in foster care, as compared to the cost to the public purse of a child who is in adoption. There the whole burden of the upkeep of the child falls upon the adoptive family—a burden which they willingly undertake.
    For comparison, let us look at the supply of very high quality services. The suggestion based on research is that the very high level services of intensive therapeutic input, or respite care, or acute health care, would be required only by a very small number, maybe five per cent, of children in care. Even that cost, which is reckoned to be around £18,000, pales into insignificance by comparison with the costs of a child in residential care, which can be £40,000 or £50,000 a year.
    These are the sorts of comparisons we have to make. As regards prison, we were told in the House that the cost of keeping a person in prison is now over £40,000

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    a year. So, by comparison with those sorts of costs, and trying to take a holistic view, I believe that it is important on purely practical cost grounds, as well as the moral and social imperatives, to make sure that post-adoptive support is really effective.
    Lord Campbell of Alloway: I rise to support Amendment No. 16 and I shall be very brief. There is something curious and rather worrying about the drafting of Clause 4. Although the Minister knows perfectly well that, as a general rule, I am not in favour of placing an absolute obligation on a local authority—and I do not derogate from that as a general approach—the drafting of this clause worries me very much indeed.
    One starts with an assessment. Then, the local authority decides that a person has need for adoption support services. Now let us pause. The local authority does not have to decide that; it may or may not decide it. Moreover, what it decides is a matter for the exercise of its discretion. However, having made the decision, surely there must be a duty to implement its decision, as my noble friend has pointed out. What is the sense or moral logic in having a "double whammy" here? If one decides that something ought to be done, then one jolly well ought to get on and do it. It is as simple as that. Quite frankly, I think that the drafting of the clause is open to serious objection.
    I shall not take any more time. I support all the other amendments in this group. However, I hope that further consideration can be given to this. I think that it is a very serious matter.
    Baroness David: Has any budgeting been done for the purpose of support services? If not, will there be?
    Lord Hunt of Kings Heath: As part of our continuing spending review discussions, we shall certainly be making an assessment of the cost of implementing the Act and of the consequential need for additional resources.
    The Lord Bishop of Oxford: I rise very briefly to support this group of amendments, particularly Amendment No. 16. I apologise for not being able to hear the first part of the noble Earl's speech. However, I indicated my support for an amendment such as this on Second Reading, for all the reasons for which we are familiar. Many of these children are deeply traumatised, and those who adopt them need all the help that they can get. From a financial point of view—as the noble Baroness, Lady David, has already indicated—saving money also is an issue. The last figures that I read, from American studies, showed that every dollar spent on a child in the early years saves 14 dollars in adolescence when things start to go wrong. As we all know, this support is absolutely crucial to all the adoption agencies. This is the aspect of the Bill that they care more about than almost anything else.
    Baroness Masham of Ilton: This is a very sensitive issue. I have adopted two children in the past, although
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    they are now grown up. I appreciate the fact that, as a parent, one does not want the unwanted interference of the local authority. Adoptive parents have taken the children as their own. However, one does want help when it is needed. A balance has to be struck, as some local authorities could be in the way.
    How does the Bill relate to arrangements in Scotland? I do not know whether the Minister was in the House today, but there was a Question about the rather large number of Cabinet members from Scotland. I am a Scot, but I am living in England. It is quite possible that, when I adopted the children, I might have gone back to Scotland with them. Would the help be there regardless of whether I was living in England or Scotland? People move around, and an awful lot of Scots live in England. They cannot do without us.
    My point is a serious one about the children. There are children who have needs, but sometimes those needs do not appear until they go to school. As anyone who has anything to do with a disability will know, one has to fight for any help that one gets. Indeed, one has to prise the help out of any authority, be it a health authority or a local authority. The matter must be dealt with sensitively, however, as we do not want to put disabled children into a pocket of segregation simply because they are adopted. The fact is that we want help for all children.
    Lord Campbell of Alloway: May I ask the noble Baroness to help me with this, if she would? She has raised the question of balance. I do not have the personal experience that she has, although I understand the question that she has raised. However, how is the question at all relevant to this amendment? It does not seem to me to be relevant to it. If it is, could she help?
    4.45 p.m.
    Baroness Masham of Ilton: Help needs to be there for all children, not simply for children who are adopted. Adopted children may have different needs, but the help should be there for all children. It will be pointed out, especially at school, that adopted children are adopted. It is very wise for parents to tell them that they are adopted; if not, other children will tell them so. The children also have to have extra support from their parent or parents.
    The Earl of Listowel: I rise to support Amendment No. 16. Before I do so, however, may I thank the Minister for his earlier assurance? As one person put it, the special aspect of adoption is that the adoptive parents make the commitment to keep that child in mind whether the child is there in their company or not. When we consider what support to give parents who have made that commitment to these children, we should bear in mind that they have given a unique and special gift to that child—always to keep him or her in mind throughout his or her life.
    I think that it was the noble Earl, Lord Howe, who pointed out that 20 per cent of adoptions break down. Adoption is no panacea. However, I am advised by

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    Jeanne Kannuick, a senior researcher at Coram Family, that, with post-adoption support, that rate can be reduced by 10 per cent. That would reduce the number of children falling out from these families by 300.
    My particular concern is about the increasing number of children with complex needs who are being adopted. As we know, because of the sometimes poor mental health and emotional well-being of these children, a lot of work often needs to be put into them. I cite one adopted girl, Louise, as an example. Quite shortly after her adoption, she was bullying her younger sisters. At one point, she tied a noose round one sister's neck and put the other end round the banister. She was harming herself and she was harming the other children. Another child, Kay, was adopted at four. By six, he was so violent towards his brothers that they had to have stitches. He was also swearing. He caused other problems that children sometimes cause such as stealing and lying.
    Another girl was adopted last July, at age six. By Christmas, she was threatening to burn down the house and to kill her parents. These are not atypical problems. A person who is very experienced in this area said that about five per cent of adopted children present this sort of challenging behaviour.
    It is therefore very important that the appropriate early intervention is made. That must follow on from the assessments which we have discussed, and it must he adequately resourced. I appreciate the Minister's earlier assurance, but I do not see how that early intervention will be made unless we have the reassurance that local authorities will have a duty to meet the assessed needs. I am particularly concerned that some of the needs here are so severe that they will require long-term interventions of a high quality, delivered by professionals. These are expensive and local authorities may seek cheaper, short-term measures. Listening to these families, they are saying that the real needs of these children were not addressed. There was no search to get to the roots of these children's problems and so, when they were taken to the families, the problems presented themselves. Six young girls last year were fine until their adolescence and then they presented to the service a terribly destructive behaviour.
    I support the amendment tabled by the noble Earl, Lord Howe, and I look forward to hearing the Minister's response.
    Lord Brennan: Clause 4 and the ancillary provisions probably represent one of the most important parts of the Bill. In determining how Clause 4, which provides for assessment and consequent provision of support services, should be finally drafted, I would invite the Minister to take into account four points.
    The first is whether there should be a duty on a local authority to provide services once that authority has assessed them to be necessary. Common sense tells us that the adopted child has three requirements in his or her young life; those are, the adopted family, health and education. In education, we have a statutory duty upon local authorities to provide statements of
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    educational need for those children who require that support service. In health, we provide that care free as a statutory duty of the state and, in part, local authorities. If we consider it necessary that there should be adoption support services, and if in a particular case they are appropriate, how can it be said that there is no duty upon a local authority to provide them? It is simply inconsistent. The third element that the child needs, apart from health and education, is support to the family who are serving the community by adopting that child.
    The first question is whether there should there be a duty. I hope that we will not descend to semantic analysis of the word, because the concept is important. The local authority should pay when it is necessary.
    Secondly, I have to say—and I hope that this is a constructive analysis—Clause 4, at the moment, requires careful attention. Under Clause 4(4), which states:
    "Where, as a result of an assessment, a local authority decide that a person has needs",
    it must then decide whether to provide services. At subsections (6) and (7), regulations may be made about the assessments, plans and so on.
    On its face, the clause provides two things in those subsections. The first is whether the local authority will or will not decide, without any criteria; and, secondly, the regulations as here phrased refer simply to methodology and not to principle. The net result would appear to be that, in this country, with the multiple collection of local authorities that we have, that if the clause stays as it now is in the final form of the Bill, three results would occur, or might occur. First, there would be no consistency between local authorities as to how they make their decision. Secondly, that would produce the risk of real injustice as to the provision or not of such services between one local authority and another. Thirdly, on its face, the clause would allow any local authority to refuse to provide support services simply by reference to resources. Common sense tells us that that will be the reason used by many local authorities when faced with an extra burden on their budget. Those results should be avoided and the Bill should cater for those risks.
    The third problem I envisage, unless this clause is clarified more in our debates, is the risk of judicial review. This is not a legal point. When statements of educational need first became established, there was wholesale litigation as to how they should be applied to test for need on genuinely needy parents who wanted a just solution. The only remedy from confusion between their views and the local authority was to go to court. Heaven forbid that in a Bill like this we provide a vehicle for lawyers to spend a year or two debating whether a child should or should not have support services. What a dreadful additional burden for the family to have to suffer. That should not occur. The Bill and the regulations should guard against that necessity.
    The fourth and final point is cost. It is extremely difficult to estimate the cost of providing such support services, but the government service is well-equipped

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    to make estimates. It has plenty of material on which to assess what might be the ultimate cost and how that might be divided between local authorities, perhaps with central government's help.
    It is almost certain, not only today but later, that the Minister will be driven to provide clear assessments about the cost to the state or local authorities, balanced against the cost if that provision is not made.
    I have risen with these suggestions in the hope that they may assist our debate, and the Minister, as we investigate Clause 4. This is not political as to party or sentiment, but it is to help human beings have a better life. I would have thought that the unity of sentiment which the Minister finds around him in this Committee will be reflected in the general public. I hope that my suggestions and others made will be taken into account to ensure that ultimately those children who are assessed as needing supporting services will receive them.
    Baroness Howarth of Breckland: I find myself in some difficulty because with my deepest heart, I would like to support this duty. I was particularly taken by the speech of the noble Earl, Lord Howe, and the clarity with which he talked about these children. However, I would like the Minister's assurance that if this duty is written into the Bill, we also have local authorities carrying out their duties to cared-for children, because Quality Protects had to be put in place to ensure that cared-for children had their needs met.
    I would like to be assured that the needs of all those families who are statemented under the education provisions where there is a duty are met. I could list numbers of families where their needs are simply not met and where families live in frustration.
    I would like to be assured that where families are at home and would like to keep their children, they are not faced with the situation of one young woman who said to me looking at her family who had been assisted with adoption, "If I had had that help, I would have been able to keep my own child at home". That duty should be there to ensure that people can keep their children, when they want to do so. I should like to be assured that the duty to meet the mental health needs of young people who are in adolescent units are properly met, so that they receive the kind of therapeutic care that was outlined earlier. I should like to see those duties, and all the others that we could list, carried through. I should like to be sure that children in need are properly identified, not just because the local authority believes they have the resources to meet that need.
    If we ring fence this duty in some way, my real concern is that we shall have one gold-plated group of children. My great desire is to ensure that this level of service is there for every child in this country who faces need. All these children should receive the health support and education that my noble colleague mentioned, within the context of a good supportive
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    family. If I were looking at this and asking for funding, I should like to see it in the context of the whole needs of our children in this nation.
    I talked to directors of social services earlier today. Their feeling is that the amount of funding going into children's service as a percentage of the whole in their local authorities has gone down over the years. I did not have the chance to check the reality of those figures and the Minister may wish to comment on that, but they certainly feel that they have less money available to meet children's needs despite the fact that the number of children in care is increasing, which, again, eats into vast amounts of the money that would be available in other circumstances. There is a real cost involved. I should love a duty to be placed in all these circumstances. I should also like to hear from the Minister what effect the duty in this situation would have on the duty in all of the others.
    5 p.m.
    Lord Hunt of Kings Heath: Understandably, this has been a very intense debate. I do not depart from anything that the noble Earl, Lord Howe, said about the importance of getting adoption support right—not, as he pointed out, after the child has been adopted, but right from the start of the process. The Bill, as presently drafted, allows not just for children who may be adopted, or adopted persons, but also for persons wishing to adopt a child.
    Equally, I fully accept that there is very little point in having a statutory assessment process if, at the end of the day, the kind of support services that we wish to see provided are not available. I draw the Committee's attention to the consultation document that was issued last week, which contains a very useful table in Chapter 7 of the range of services that can be, and, indeed, are being provided by a number of local authorities.
    The problem with this debate is that I am very reluctant to go down the path of saying that one must place an absolute duty on local authorities to provide everything that is in the assessment. In asking some very pointed questions, the noble Baroness, Lady Howarth, drew attention to the risk that one would actually put a duty to provide adoption support services at a higher level than applies to many other duties placed on local authorities. This, essentially, is the issue that the Government face.
    The noble Earl, Lord Howe, and I have had the occasional exchange about who is more committed to decentralisation. Members of the Committee will know of my absolute commitment to decentralisation and sensitive performance management in health and local government. I genuinely believe that to be the right approach. I do believe in local government; it needs to have discretion to make its own decisions within a framework that ultimately ensures that the kind of support services that we all want to see are actually provided. The problem of a statutory duty, which Members of the Committee wish to see—and I readily acknowledge the force of the argument being put forward today—is that it would or could mean

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    that adoption support services would be given priority over almost every other service provided by a local authority social services department. That in legislative terms is a problem. Of course, there is no point going down this road unless we can assure ourselves that local authorities will do the right thing.
    I would say to the noble Baroness, Lady Thomas, in relation to the point she made right at the beginning, that it is clearly very important that the Bill places a duty on local authorities to make and participate in arrangements to provide adoption support services. It is our intent that this new duty will tackle the inconsistency that we can see at the moment in the availability of adoption support services including financial support. In addition, the Government's National Adoption Standards state clearly that children are entitled to support services to meet their assessed needs and that adopters will have access to a range of multi-agency support services before, during and after adoption.
    Local authorities must of course act reasonably in deciding whether to provide adoption support services following an assessment. Failure to do so will be picked up through the monitoring and performance assessment that the department is engaged in and action will be taken accordingly. In addition, from April 2003 local authority adoption services will be independently inspected by the National Care Standards Commission in England and by the National Assembly for Wales. Subsection (4), however, makes clear that it is for the local authority to make a decision as to whether to provide adoption support services in each individual case and my noble friend Lord Brennan is right in saying that in doing so they may take the resources available to them into account. There is no real difference in that from the approach to the vast majority of public services, including other local authority services, or indeed the health service.
    I recognise of course that the issue of resource availability is critical to the ability of local authorities to provide the required amount of services. We would expect the substantial amount of the extra £66 million announced in the White Paper to be used by local authorities to provide their adoption support services.
    Overall, the duty to assess is a very important advance. Additional money has been made available. My noble friend Lord Brennan and other Members of the Committee made points in relation to the advantage for local authorities in investing more of their own resources in adoption support. Clearly the more they invest in those services the less likely demand will be on some of the intensive support programmes that are often required to be made available because adoption support was not available when it should have been. That, combined with National Adoption Standards and the performance management regime that we have in place, will ensure that we get adoption support services up to a high level. I would, however, be concerned if Members of the Committee insisted that we amended the Bill to make it an absolute duty for local authorities in every circumstance to have to provide all the services
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    identified through the assessment process, for the reason that I and the noble Baroness, Lady Howarth, made clear.
    Amendments Nos. 17 and 18 would require local authorities, where they decide not to provide adoption support services, following an assessment under Clause 4, to provide a written explanation of their reasons for not doing so. I very much understand that, although I do not believe it is a matter for primary legislation. Clearly it will be good practice for local authorities to provide a written explanation of their reasons for not providing adoption support services following an assessment. However, we believe that is more appropriately covered in guidance to local authorities, and, as an example, in some cases depending of the needs of a person who is being assessed, it may be more appropriate to provide an oral explanation.
    As I have previously explained, we are currently developing a new national framework for adoption support services and financial support in consultation with experts in the adoption field. The consultation document published on 21st June covered many of those points, and if following consultation we decide that it would be appropriate to provide a written explanation of their reasons, we will consider that and issue guidance to local authorities to that effect. However, I believe that if we were to do that we would then have to explore whether it should be provided in every case, or whether in certain circumstances. But we are prepared to consider that as pail of the consultation.
    Amendment No. 19 covers plans for the provision of adoption support services. The version of the Bill which we introduced in the previous Session did require local authorities in every case, where they decided to provide adoption support services, following an assessment to prepare a plan for the provision of those services, and to keep the plan under review. We gave that careful consideration and ultimately decided to make a change because we did not want to place unnecessary burdens on local authorities.
    In many cases, where a local authority goes on to provide adoption support services following an assessment, it will be appropriate for it to draw up a plan to co-ordinate the provision of those services. Where an adoptive family are being provided with a number of different services following an assessment, the detail of those services will need to be recorded in a plan to ensure that the family receive the services provided at an appropriate time. However, in some cases a plan would not be needed; for instance, where services are being provided on a one-off basis such as an individual session of counselling for an adopted adult preparing to receive information about his or her birth family. A plan would not be necessary there to co-ordinate the provision of services.
    We must be proportionate here. We must avoid placing unnecessary burdens on local authorities when we want them to focus on the critical issues that make adoption successful.

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    Amendment No. 20 is linked to the preparation of plans. It would require local authorities to draw up a plan in prescribed circumstances where they have assessed a need to provide adoption support services. There is no indication in the amendment whether the prescribed circumstances for the preparation of a plan are to be the same as those intended by the Government, or whether they are to be different. The key feature of the amendment is that it links a requirement to produce a plan with an assessment of need for adoption support services.
    As I explained earlier, the Government's desire is that local authorities will have discretion to determine whether to provide adoption support services following an assessment of need. There may be cases where a local authority assesses a need to provide adoption support services, but does not go on to provide those services. I have already made it clear that the local authority must act reasonably in determining whether to provide services. However, just purely as a sensible administrative approach to that, where it determines not to provide adoption support services, it does not seem appropriate for it to draw up a plan for the provision of those services.
    Amendment No. 21 would enable regulations to provide for review of a local authority's decision not to provide adoption support services. I believe that that situation best rests with the local authority's complaints system. Where it decided not to provide adoption support services, following an assessment of needs, and those affected are dissatisfied, a complaint may be made to the local authority in the usual way. Adoption is a mainstream social service responsibility, and I believe that the majority of complaints about local authority adoption services should therefore fall appropriately to be dealt with through their existing complaints procedure.
    We are currently improving the local authority social services complaints procedure to speed it up, especially for children. We undertook a review of social services complaints procedures—
    Earl Russell: I am most grateful to the Minister for giving way. I wonder whether he would give us a word of explanation. Where he says he is placing an obligation on the local authority to act reasonably, does that mean "reasonably" in an absolute sense or "reasonably" in relation to its available resources?
    5.15 p.m.
    Lord Hunt of Kings Heath: "Reasonably" must embrace the issue of resources. There cannot be any getting away from that. If one thinks of the National Health Service, in relation to its general duty to provide services to the people of this country, clearly the ability of statutory services to provide those resources is always going to be a factor. We cannot run away from that issue.
    The challenge for government and local authorities is to ensure that they invest sufficient resources in adoption support services. I have already indicated
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    that much of the additional money that we have put in will go towards adoption support. We know that local authorities have increased their own resource investment in the adoption service. I hope that that will continue. The assessment that local authorities will be required to carry out is a very important advance, and as I have already said, there would be little point going down this route unless we were ultimately satisfied that local authorities were able to provide a consistent range of services that are required.
    As we will no doubt consider this again between now and the Report stage, I urge Members of the Committee to consider whether it would be right to put an absolute duty on local authorities to provide every single service in all circumstances which they may have assessed—
    Lord Campbell of Alloway: I am obliged to the Minister for giving way. It is not really a question of "reasonableness". The question of "reasonableness" arises where the local authority decides not to provide services. I have been involved in these cases, but I have never been involved in a case where it did decide to provide them. Now, if it decided to provide them, the question of "reasonableness" simply would not arise. The decision has been made to provide them. Resources, by judicial decision, are not relevant to say, "We couldn't do it because, although we decided we didn't have the resources". It has been held by the court in more than one case that that will not wash.
    Therefore, the decision has been made which does not have to be made. However, if a local authority decides to provide the services, I cannot understand the argument why they should not be provided and why there is no duty. It does not have to make the decision, but if it is made, it has to be implemented.
    Lord Hunt of Kings Heath: One can see quite clearly what would happen in that case. The assessment would become the rationer of services. Clearly, their assessment would inevitably be constrained. The answer that I was trying to give the noble Earl, Lord Russell, was that one cannot surely deny in the end that resources are a factor and always will be for responsible public authorities. However, we are trying to get a proper assessment process in place and a high quality range of services.
    I know that there are arguments about the current performance of local authorities and that the history and record over many years in relation to adoption services and adoption support services has not been an altogether happy one. There has been an inconsistent approach, but as I said earlier, there is evidence that since the publication of the PIU report and the White Paper local authorities have begun to get their act together. They have invested more resources; we are seeing more children adopted and I know from the reporting mechanism of the Social Services Inspectorate that SSI inspectors, too, are picking up definite indicators of improved services and performance.
    The enactment of the legislation, the adoption standards, the consultation that we are undertaking and the preparation will lead to a much enhanced

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    service, which we shall rigorously monitor through the performance of management arrangements and through the role of the National Care Standards Commission in the regulation of these functions. That is the best way to move forward.
    The provision of a right of assessment for the categories of persons listed is a major advance. The local authorities must be given some discretion, very much hedged in by the kind of performance management assessment that we have in place. I question whether a statutory duty in relation to the provision of adoption support services would be right. Inevitably it could be seen to give priority for adoption support services over nearly every other function provided by the local authority social services department.
    I recognise that this will be the subject of continuing debate. I am happy to meet Members of the Committee between now and Report to discuss the matter further. I hope that they will recognise that the Government are seeking to be reasonable in ensuring high quality support services, also recognising that the local authority must have some discretion.
    Baroness Masham of Ilton: The Minister did not answer my question about Scotland. I now want to ask him about Northern Ireland as well, since he mentioned England and Wales again.
    Lord Hunt of Kings Heath: This Bill largely relates to England and Wales, although it contains provisions particularly about recognition of adoptions in each country. I understand that in Scotland they are considering undertaking a review of their own adoption arrangements. Northern Ireland may be doing so, but they are not so far advanced in their deliberations.
    The provisions that we are talking about in relation to adoption support services would apply to adopted children living in England. If they were in Scotland, the provisions of the Scottish legislation would apply. We will continue to work closely with our colleagues in the devolved Administrations to make sure that it is as clear as possible to adoptive parents as to the different circumstances in which they find themselves.
    Lady Saltoun of Abernethy: The Minister said that the Government would be monitoring closely the workings of the support services. If the Government then find that they are not satisfied with the way that they are working, what can they do about it?
    Lord Hunt of Kings Heath: There are a number of mechanisms that the Department of Health can use to intervene in local authorities' performance, if we are dissatisfied with the way that they perform; for example, there is the role of the Social Services Inspectorate in drawing to the attention of local authorities weaknesses in their performance. In addition, a fairly short time ago we launched performance ratings for local authority social services
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    departments, which gave a very clear indication to the public and to counsellors in those authorities as to whether a local authority was doing well, or badly.
    We also have other direct intervention powers. At the end of the day, we can take the responsibility for services away from a local authority. In addition, its adoption service will require to be regulated in the circumstances that I described under the National Care Standards Commission. Whatever else people may say, I do not believe local authorities are in any doubt that we have the power to intervene.
    Baroness Barker: This has been an extremely helpful and useful debate. After some considerable time we heard the exact word that we needed to hear when the Minister used the word "evidence". I highlight that because I came to this subject completely afresh. I did not know what post-adoption support was; I really did not know what people meant by it. When people started to explain it to me and explained that it would make a tangible difference, my first question was: how do you know?
    We have established that the evidence, for any argument on any side, is pretty thin. That is most effectively demonstrated in the consultation document that the Government provided last week. I should like to pick up some of the points raised by the Minister and the noble Baroness, Lady Howarth, about the difference—and distinction—between post-adoption services and services for other children.
    Members of the Committee may not have the consultation document to hand, but pages 22 and 23 set out the existing duties of local authorities and of other authorities under the Children Act. There is a range of duties that are already in place for general children's services. However, if one turns to page 27 of the document and considers what the Minister said as regards the evidence From recent social services inspections, one sees a long list of points on why many of the current adoption services do not work. It is a very strange consultation document, with very few figures in it —a fact which puzzles me. It has become evident to me that one of the reasons is that there is no tracking or monitoring mechanism for what happens when an adoption goes wrong. There is also no tracking or monitoring of what happens when they go well, and when adoption support is provided.
    We are all arguing very much in the dark here. This is why some of us have homed in on the question of assessment. The Minister talked about the distinction between assessment and assessments made in the light of resources. My noble friend Earl Russell and I immediately thought of the Gloucestershire judgment—those are the words that will ring in his ear on that particular subject.
    The Government, in this Bill, have said "We will give you the right to an assessment, and because that assessment is in no way bound to be provision-related, it will be a very pure assessment". Therefore, a person who receives an assessment for post-adoption support will have a "perfect—I repeat, "perfect" —assessment of his adoption. He will not get that from his local authority, so perhaps he could get it somewhere else.

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    I ask the Minister this: how will local authorities make assessments for something which may never exist? Part of an assessment process has to consider whether a person will get benefit from a post-adoption service. If that post-adoption service never exists, how do you build up an assessment on it? There is something illogical in this; something incomplete. That is why some of us have chosen to focus our amendments on what happens when assessments are carried out but no provision is made.
    I believe people when they tell me—I refer Members of the Committee back to Clause 1 (4)(a) and (b) and to the fact that we are dealing with the needs of a person throughout his life—that the problems which adopted children have are not unique; other children have those same problems. But they are unique as regards the way that they happen in the case of adopted children and adoptive families. So there is a special need there.
    I also have a question. It is a question, for the noble Baroness, Lady Howarth, as well as for the Minister. Does a post-adoption service have to be absolutely isolated from all other functions of a social services department? I do not believe that it does. Mental health services, family counselling and so on are services that need to exist for all families.
    We have talked about other pieces of legislation, the Education Bill and so on. We are not seeking in this Bill to put adopted children and adoptive families at some higher level of need than anybody else; we are trying to make sure that the right services exist. If they exist for adoptive families and children, then other people who have those same needs can access them. That is the point here.
    5.30 p.m.
    Lord Hunt of Kings Heath: I must intervene. Of course, I fully understand the point the noble Baroness, Lady Barker, is raising. Does she, however, not see the argument that I am putting forward? It would not work like that. Because you are imposing such a strong duty in relation to adoption support services—a stronger duty than in the case of almost any other provision by a local authority social services department—it would not work in the way the noble Baroness suggests. It would work the other way. That is the genuine problem here. There is no argument in principle here between all Members of the Committee. There is no point going down this route unless we can ensure that adoption support services are provided effectively to all who need them.
    Baroness Barker: I put the contrary point to the Minister. No matter which piece of legislation one is assessed under, one is going to be assessed for something one is not going to get because it is not going to exist. That is the problem.
    Lord Hunt of Kings Heath: The noble Baroness is far too pessimistic about what is going to be provided. I am disappointed that she is so damning of this consultative paper because I think that it is extremely interesting. It shows the range of services that can be
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    provided. We have put extra resources into local authorities for their adoption support services. The consultation paper makes clear that already, without that extra money, local authorities are putting more resource in themselves because increasingly they recognise that they have to sort out adoption services. They know that you need good adoption support services to make the thing work. They know we are going to regulate them. They know we are going to have strong performance assessment. We are not going to end up in a position where people are not going to get decent adoption support services. Why else would we place a statutory assessment duty on the face of the Bill?
    Baroness Barker: That is the question we have all been pondering and continue to ponder. I am sorry if I gave the impression that I was damning of this document. I am not, and I am delighted to see it. I cannot tell the noble Lord how delighted I am to see it now when we are able to discuss it. There is much in its description and analysis which is extremely useful, but it is deficient in two very crucial areas: evidence and funding. That is the problem that I have with it.
    I go back to the point about evidence and reiterate my question to the noble Lord about tracking. I believe that Members on all sides of the Committee are seeking to do not only that which is best but also that which is—if I dare say it—fiscally prudent. However, we are all hampered by the lack of evidence.
    I want to deal with a couple of specific points which the Minister raised. First, on Amendment No. 19, the Minister talked about the necessity not to have a plan. He said that a plan may apply only to a one-off episode. I believe that this is part of the deal—the more there is in regulations, the more individual people who are likely to be affected by legislation should have the right to see things in writing. That relates to all areas of legislation.
    Secondly, Amendment No. 21 concerns local authority complaints procedures. We will come to this in a later debate. No matter how good a local authority complaints procedure may be, the complaint is made to the same authority working with the same ethos, the same policies and, critically, the same financial situation.
    I mentioned a local authority that happens to be run by my party at the moment. What would someone in the London Borough of Lambeth do when it has to cut £9 million this year from its social services budget? What is the point of having a complaints procedure that enables someone to go back only to meet with the same set of factors that they have met with before? That is wrong.
    I refer to two further points. There is a lack of data here. Who knows what is going on? Who knows what is happening and not happening? The noble Earl, Lord Howe, referred in his opening statement to a long list of organisations which have differing views on just about every aspect of the Bill. But, as one, they tell us, first, that this is not happening, secondly, that it should

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    happen, and, thirdly, that if it does happen, it will make a reality of many of the items in the Government's wish list.
    Finally, why do we want to put this measure on the face of the Bill as opposed to leaving it to regulations and local authority guidance? There is one crucial reason why we have to do that. Here I refer to a point made by the noble Lord, Lord Brennan. He talked about what happened when statementing and educational needs came in. In a way that I would not dare, he talked about his own legal profession. However, there was a crucial difference there. Individual people have a right, because of legislation, to argue the case for something to happen. It is not about local authorities deciding whether or not they react to government guidance; it is about individual people having a power. That is why, taken together, the amendments—-perhaps they are not correct in every detail; I accept that—should be just cause for the Government to go away and think again.
    Baroness Howarth of Breckland: I have not yet worked out whether one stands up when one's name is mentioned. I am still learning all these procedures. I have a few points to make. First, I am a Cross-Bencher. I am delighted to be put alongside the Minister, but what I say is from my own experience, not from any political background, and I should make that absolutely clear.
    I agree with the points that have been made. I said that I would like to see a duty in all these areas. I have great concerns that if we place a duty on one and not on the others, we will get this terrible imbalance. The noble Baroness made the point that what we really need to work towards—and I believe the Government are attempting this—is integrated services, so that all these issues can come together, and the service can benefit all the children who need them, not just one group of children.
    I also want to make the point about the way an assessment takes place. I want to see the best assessments, recommending the best services. I have been in situations when that has happened over the years, but one cannot provide that. One cannot provide it because rationing means those resources are not only not available because of costs, but because there may he some psychiatric care which one cannot obtain, or because the waiting lists are so long.
    Many of the problems are with the health service. Many of the children need special health service care, or special educational care, which simply are not there. I would not want an assessment to be a statutory duty, which one could not then make best endeavours in relation to that child. Those best endeavours might not be the top of the list, but I would not like to lose those at the top list because we desperately need research. We need research which says, "What did these children need? What did they get? What were the outcomes?" If we had that, then we would be in a better position to know, again, what is best for all children, not just this group of children.
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    I felt I should respond. I hope that is the appropriate way to do it and I shall keep trying.
    Lord Brennan: I thank the Minister for the way in which he has dealt with all the comments. No sensible person is going to invite the Government to give a blank cheque to local authorities; that is absurd. The proposition as put raises two questions that I would invite him to consider. The proposition is: upon what basis should an assessment be carried out whether or not a provision is made—
    The Deputy Chairman of Committees (Lord Brougham and Vaux): Can the noble Lord speak up?
    Lord Brennan: Yes. Secondly, what are the criteria to be used once the local authority determines that it is a proper case in which to make provision? Can it or not?
    I was very reassured to hear from my noble friend that he thought a local authority must act reasonably in making the first decision on whether the child should receive support services. However, my question is: against what criteria? Reasonableness has to be objective and not idiosyncratic from local authority to local authority, so where would those criteria come from?
    My second question is: in the circumstance in which a local authority would like to give provision but for various reasons it cannot justify that, what criteria will then apply? What will the performance monitoring group use as the standards against which to decide whether the local authority has acted sensibly and in the public interest?
    I am reassured by the progress we have made in terms of "reasonableness" in relation to local authority action, but I invite the Minister to consider—not today but later—whether we can go a step further and decide what the criteria are.
    Baroness Thomas of Walliswood: I was a little disturbed by what seemed to be a rather cavalier attitude on the part of the Minister, who is not normally cavalier, towards written papers. We have done our best to suggest that at various points records should be kept—a written reason for not providing services, a written plan which is kept under review, and so on. He seemed to suggest that that was demanding too much.
    I am a member of a probation board, and some of the children—unfortunately the sort of children we are talking about—may well pass from the social services direct to the probation board. When that happens, every single action that the probation service takes in respect of those children has to be recorded. That record is the record of what the service has done, and on that record it is judged. The record also provides the evidence for the national performance of the service and its success in serving the courts and so on.
    I see no reason why another service, dealing with the same or similar young people who have suffered the same or similar traumatic events in their youth, should not be under the same obligation to make a record of

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    what it does, and when and why it does it. Such a record also provides evidence for what is happening in the service as a whole and what causes success and failure. Similarly, in the health service we spend a great deal of time asking ourselves which treatments have been successful, what their cost was and how they performed as compared with those that have not been so successful, their costs and so on.
    5.45 p.m.
    Lord Campbell of Alloway: I support the noble Baroness because without the written reasons you are love:30 or love:40 on judicial reviews. This is a very essential amendment. I will not take up time—there are other lawyers here.
    The Earl of Listowel: I heard Professor A1 Ainsley Green, who is leading the Children's Framework, make a final point that policy towards children should be evidence-based. He also made the point that more and more we are looking at the journey of the child. Both those points are relevant to what the noble Baroness, Lady Barker, has just said.
    Lord Hunt of Kings Heath: I suspect that we are at cross purposes. I fully recognise that the local authority needs to keep appropriate records for the reasons raised in relation to judicial review—which we hope will not be a frequent occurrence, although I noted the comments of my noble friend—or if a person seeks to use the complaints procedure. A local authority will need to keep records. My comments were specifically in relation to the actual wording of the amendment: I suggested that there might be circumstances where it would not be essential for the local authority to provide a written plan, particularly when a one-off service was being provided. However, a written plan is different from keeping a proper record of any decision taken. That is the point that I was trying to make.
    More generally, on the issue of outcome evidence and tracking through how well the new system will proceed, I recognise that important point. The department is funding research on both the cost and outcomes of adoption and I hope it will be of use to all of us in the future and to local authorities in particular. It is worth saying that the White Paper committed the Government to working on how to develop better systems of monitoring the outcome of adoptions, but to do so in a sensitive way without being intrusive in relation to the families concerned. We shall continue to work on that basis.
    Earl Howe: I had expected this to be a debate of some importance and how right I was. We have made progress today. These exchanges have been extremely useful and I thank all Members of the Committee and the right reverend Prelate for taking part.
    In conclusion, I thank the Minister for the way in which he was able to concur with the central premise of the case that I tried to lay out; namely, the critical importance of adoption services for families, of early preparation and the cost to society if services are not
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    provided when they are needed. I know that the Minister understands the strength of the case made today. Indeed, I take some heart from the fact that he did not chide me too hard. In fact, he did not chide me at all, as he usually does, on attempting to place a duty of this kind on the face of the Bill.
    In a sense, the Minister made the case for me. If councils are to have discretion not to provide adoption services, what is the point of requiring them to provide an assessment? Why should they be legally obliged to incur the cost of assessments if they are not then going to spend money on the support services? There is a lack of logic there. The Minister said that in his view local authorities know what is in the air, what is expected of them, and what they are going to have to do. I wonder about that. All the evidence at the moment is that there are some local authorities providing very good support services, but also that there are others which simply do not and show no signs of doing so.
    I wonder whether the Government themselves went through the sort of thought processes that this Committee has gone through and then backtracked along the way. The noble Baroness, Lady Thomas, usefully drew our attention to what the Government said in their White Paper Adoption: A New Approach. I shall read out a bit of it again. Paragraph 6.27 says that new legislation would be introduced to,
    "place a clear duty on local social services authorities to provide post-adoption support, including financial support, planned jointly with local education authorities and the NHS, and any other relevant agencies. This support will be available from the time a placement is made, for as long as it is needed".
    The language there is quite plain. I read that as a commitment to provide post-adoption support, and to impose a clear duty to provide that support. The White Paper did not say that local authorities would be given a duty to decide whether or not to provide post-adoption support.
    Therefore, if the Government continue to resist these amendments in later stages of the Bill, they will seem to have resiled from the commitment in their own White Paper. Unless local authorities are obliged to provide adoption support to those who meet the assessment criteria, there is, as I said, a distinct risk that many of them will offer the barest of skeleton services, simply to comply with the letter of the law. I am not at all sure about the Minister's remarks about the triumph of enlightened self-interest on the part of local authorities. The reality is that when the budgetary climate is tough, local authorities will concentrate their resources on their statutory duties and cut down on the functions which they do not legally have to provide.
    Lord Hunt of Kings Heath: Does that not give substance to my argument that one needs to be cautious before pursuing an option which, in effect, would say that adoption support service provision is a higher responsibility than almost any other provision by a local authority social services department? Does the noble Earl not recognise that there is some merit in at least debating whether that is ultimately a sensible option?
    Earl Howe: Of course I recognise the merit of that. I think that we owe that point particularly to the noble

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    Baroness, Lady Howarth, and to the Minister. Ring fencing is a problematic issue; it always has been and always will be. This is ring fencing in another sense. It is not ring fencing of a budget but ring fencing of duties, which has an impact on everything else. Of course I understand that. However, to the extent that that is so, I should have thought that it was attributable to a shortage of both trained professionals and of money.
    We come back to the money question, which was highlighted particularly by the noble Lord, Lord Brennan. No one on this side of the Committee—or at least in this corner of the Committee—would be in favour of issuing a blank cheque to local authorities. We are as much in favour of prudence as is the Chancellor of the Exchequer. However, the ability of local authorities to provide these services will depend critically on the resources that they receive from central government. This is ultimately an element of the PSS budget. To the extent that they cannot provide the services, it is a reflection of lack of provision of money from the centre. That is perhaps a point upon which we need to reflect between now and Report. We are looking at a resources issue.
    There is no doubt that there is a gap in the centre of this clause. Local authorities are being given a duty to provide an assessment where it is requested. They are being given a duty to decide to make a decision on the basis of that assessment. There is a duty, as we heard, to exercise reasonableness in coming to that decision. The noble Lord, Lord Brennan, shed some very helpful light on the question of reasonableness. We heard from the Minister that reasonableness can take account of the question of resources.
    I am fearful about the point made by the noble Lord, Lord Brennan, about judicial review, if we focus on this question of reasonableness. There could be severe risks that, once a local authority has decided that services are required on the basis of an assessment properly carried out, but then fails to provide those services because of a lack of resources, then we could be in dangerous waters.
    I do not see performance management as a substitute for this duty, not least because performance management—by definition—tends to be exercised long after the identification of need, and real families and real children will have suffered in the interim. While I do not belittle performance management, which is an extremely important area, I am not persuaded that it is a substitute for this duty.
    We have spent a good deal of time on this issue and it is time to move on. I again thank all noble Lords who have taken part, and I thank the Minister for his very thoughtful words. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 17 to 22 not moved.]
    Baroness Gibson of Market Rasenmoved Amendment No. 23:
    Page 5, line 17, after "notify" insert "and request the help of"
    The noble Baroness said: In moving Amendment No. 23, I shall also speak to Amendment No. 26. These are both small amendments, but they are strengthening amendments in relation to Clause 4(9). They strengthen the requirements on the health authority, the primary care trust and the LEA.
    Amendment No. 23 imposes a commitment on the three bodies in addition to those provided for in the Bill. It also further involves them by requesting their help. It is a practical amendment which asks for assistance, and I hope that it will become a practical part of the Bill.
    Amendment No. 26 commits the above-mentioned bodies—the health authorities, primary care trusts and local authorities—to action. The Bill refers to "notification". However, notification is one thing, but action is another. As written, Clause 4(9)(b) seems to say that the bodies could "note" but not actually ask for action on information received. I believe that these amendments would make it clear beyond doubt exactly what we are asking of these bodies. I beg to move.
    6 p.m.
    Lord Astor of Hever: I rise briefly to speak to Amendment No. 24. The noble Baroness, Lady Gibson of Market Rasen, moved her amendment very eloquently and I agree with the spirit of what she said about the further commitment.
    In the Bill, there is a duty on the local authority to notify health authorities, PCTs or the local education authority. As the noble Baroness said, there is no duty on those bodies to provide health or education services. Even if they believe they should provide those services, they may decide not to.
    There is no point in simple notification without a duty to provide the services that a thorough assessment has declared vital to the progress of the child. There is a requirement in education that if a child is statemented, his assessed needs must be met. We feel that the same should apply to health and education under the Bill.
    Baroness Thomas of Walliswood: Our amendment in this series is very similar to the others; it is almost identical to Amendment No. 24. The purpose of the amendments is quite clear to everyone.
    Lord Hunt of Kings Heath: We debated similar amendments on Monday. Members of the Committee will recall that I agreed to look at the form of any guidance we give to local authorities, LEAs and the NHS, particularly picking up the point that was made on Monday about the need for co-ordination when the local authority providing an adoption service, the LEA and the NHS have statutory responsibilities. The clear point is making sure that there is co-ordination. On Monday, I said that I would look at the guidance to ensure that we picked up this issue of co-ordination.

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    I recognise that these amendments raise a number of particular issues that we need to consider. If I can first say to my noble friend Lady Gibson that I want to reassure her about what I understand the word "notification" to mean. The point is that health authorities, primary care trusts and local education authorities must act reasonably in the exercise of their functions. They have statutory responsibilities and they would not be in a position to ignore or overlook such notifications from local social service authorities. They could not simply receive a notification and place it in a file. They would have to give due consideration to it. That is their responsibility as providers of statutory services.
    In addition, education and health providers will of course be aware that services needed to support an adoptive placement are likely to be less intensive than those that would be needed if the child were in the looked-after system.
    I know that in our last debate, doubt was cast upon that good old principle of enlightened self-interest. I am certain that the responsibility of the local authority to notify if it appears to it that provision of services is needed from the health authority, the LEA or primary care trust, with the guidance that we are going to issue as to how that will work, will be abundantly clear. It will be clear to the LEA and to the NHS that it is in everyone's interest that they work together to ensure that appropriate services are provided.
    Amendments Nos. 24 and 25 also address the role of health and education authorities in the provision of adoption support services. These amendments would place a duty on health bodies and local education authorities, following receipt of a notification from a local authority, to provide any relevant service.
    I have made it clear that the NHS and the LEA will need to determine whether to provide such adoption support services in accordance with their statutory provision. I have to stress again, however, as I did on Monday, that it would not be sensible to reach a position where the assessment for adoption support services provided under Clause 4 of the Bill overrode the responsibility of the NHS and the LEA to provide the statutory duties that they have to provide.
    Naturally, where a health authority, a primary care trust, or an LEA decides to provide services following such notification, it would be good practice for it to inform the local social services authority. This would give the local social services authority a clear picture of the package of adoption support services being provided to an individual and help ensure the joined-up planning and provision of public services. I have listened to that particular argument and can assure Members of the Committee that we shall issue guidance and directions to LEAs and the NHS to that effect. I also give assurance that National Adoption Standards state that councils will plan and deliver
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    adoption services with local health and education bodies. The use of guidance and directions will help to deliver that standard.
    The Earl of Listowel: On a very specific point, the perception of adoption services tends to be that the service provided by CAMHS is not as effective often as one not provided by CAMHS—the sort of psychotherapeutic approach with the children that we are talking about here. It is a particular point, therefore, and I hope the Minister will not mind me raising it here.
    It is important that the right intervention is made; that is what I am trying to get across. Can the Minister explain, therefore, how, if the normal CAMHS approach, which tends to be a cognitive approach with a short intervention to address particular symptoms and with a short piece of behavioural treatment, is not thought to be appropriate, a different approach, which is more long term, often talk therapy that looks at the roots of a child's problem and tries to address them maybe over a number of years, might be brought in and worked?
    Lord Hunt of Kings Heath: I suppose, first, that the very fact that statutory assessment needs to take place would allow for discussion between the local authorities and the individual or parents who have asked for such an assessment to discuss the range of options on offer. That would be the first point at which to discuss it.
    If, as a result of those discussions and the assessment, the local authority considered that the NHS would be able to provide such services, the health service would receive notification under Clause 4(9)(a) and the local health service would then need to consider what further action it might take. That might in itself involve a discussion with the applicants who have received the assessment in which the range of options would be put before them.
    The noble Earl, Lord Listowel, then took the matter into a much wider debate, not for the first time, and I recognise what he said about the value of "talking therapies". I would hope that that would be a matter that the local NHS would consider. He also raised the question of the effectiveness of the adolescent mental health service. He will know that there is much to be done in improving those services, including coordinating the work between health and social services. He mentioned A1 Ainsley Green very recently, our Children's Czar, if I may put it like that. We are developing the Children's National Service Framework and we are looking at the kind of service that is provided in that context. I cannot give a simple answer to the noble Earl but I hope he will recognise that, through the assessment process, through the notification, then through the NHS making its own determination, there are opportunities to provide a full range of services. However, I do not pretend that ensuring effective services is anything but a very great challenge.
    Baroness Gibson of Market Rasen: I thank my noble friend the Minister for his explanation of the term

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    "notification". Perhaps I could ask something about the guidance to which he has referred. It strikes me that there should be some kind of monitoring of what is actually happening. Guidance is fine—but. Will there be a reference to monitoring in the guidance, or if not, will there be some other form of monitoring what is happening?
    Lord Hunt of Kings Heath: My noble friend is absolutely right. We come back to the previous debate about assessments and how we can make sure that this system works effectively. I can assure my noble friend that as regards our overall performance management of the new adoption service, issues in relation to co-ordination between the local statutory agencies will clearly need to be factored into that assessment process. As far as the NHS is concerned, the Department of Health has direct performance management mechanisms in place for the National Health Service. We will want to see a joined-up approach put in place.
    Lord Astor of Hever: We will read very carefully what the Minister has said. We feel that there is an argument for putting the measure on the face of the Bill as these are a priority category of people. However, as I say, we will read carefully what the Minister has said.
    Baroness Gibson of Market Rasen: In the light of the Minister's reply and in view of the fact that we can look at it in Hansard, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 24 to 26 not moved.]
    Earl Howemoved Amendment No. 27:
    Page 5, line 24, at end insert—
    "( ) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
    The noble Earl said: We have had a good debate on the substantive points at issue in this clause and I do not want to draw out our proceedings unduly. However, Amendment No. 27 reflects the broader concern that I have about the importance of the subject matter in Clause 4—a point which has already been echoed by many noble Lords.
    How Clause 4 will actually work out in practice is, to a very great extent, dependent on regulations yet to be drafted. The criteria to be set down as to who is entitled to an assessment, in what circumstances they are entitled to it, what factors should govern a local authority's deliberations as they carry out an assessment, and so on—all these things are not yet known, yet they are of critical importance.
    I always regret the absence of draft regulations when a Bill is being debated but this is a particularly glaring example of the Committee having to fly blind, as it were. We need to see what the Government are planning to put into the regulations before we can make a balanced judgment about this part of the Bill. That is why I have tabled this amendment. As we are
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    not aware of what the regulations will contain, it is not unreasonable for us to ask that both Houses should have an automatic right to debate them when they are laid.
    However, regardless of that—I expect the Minister to take issue with me on this point—it would be most helpful if he could go a little further than he has so far been able to do about the content of the regulations, in particular about the assessments themselves, how they are going to be done, how the plans are to be drawn up, and how these are to be reviewed. What is meant by conditional support in subsection (7)(f)? I believe that it relates to reimbursement and that there is some financial implication to it, but I am not certain.
    Our earlier debate on the issue of connected persons gave rise to a number of questions about who will be able to request an assessment on behalf of whom. The Minister has already made a number of helpful comments there, but if he could enlarge on that it would be useful. There are cross-boundary issues that need to be thought through. There is the interaction between health, education and social services. All these are pivotal to the success of the Government's plans, which of course we very much want to see working properly.
    The other implication of subsections (6) and (7) is resources. I realise that these are not strictly relevant to the content of the regulations themselves, but, as we were debating earlier, they are a vitally necessary accompaniment to them. The more that we require of local authorities in the way that they are told to carry out assessments, plans, reviews and so on, the more they are entitled to plead for the wherewithal with which to do it all.
    In particular, many local authorities will be short of the necessary skilled manpower. I understand that the vacancy rate in some social services children's departments is as high as 50 per cent in parts of London. The Minister may not be able to say anything now, but it would be helpful if at some point he could comment on how that situation is to be ameliorated. Without professional trained staff, we can legislate all we like, but we shall not improve the situation on the ground by one iota.
    I hope that the Minister will feel sympathetic to the motivation which has led me to move this amendment. If he can shed some light on the particular issues to which I referred, I should be grateful. I beg to move.
    6.15 p.m.
    Lord Hunt of Kings Heath: Recruitment and retention are clearly a matter of great importance. We have taken great interest and worked with our local government colleagues on the matter. I should be happy to give more details to the noble Earl, Lord Howe, and perhaps write to him about some of the initiatives taken. Clearly these are important. Last autumn, we launched a series of initiatives at the, social services conference which I hope are beginning to bear fruit.
    Subsection (7)(f), on conditional support, could be used to enable local authorities to specify that financial support must be spent on specified items or services

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    and can be recouped if not so spent. It might be appropriate where a one-off grant is being paid for a specific purpose, but is unlikely to be used for regular allowances.
    In terms of the parliamentary procedure to be adopted under the Bill, we have sought to follow established practice. All regulations made under the Adoption Act 1976 are subject to the negative resolution procedure except for those made under Section 3(1), which are not subject to any procedure. We therefore believe that the vast majority of regulations made under the Adoption and Children Bill should also be subject to the negative resolution procedure.
    A memorandum was sent to the Delegated Powers and Regulatory Reform Committee when the Bill was introduced in this House. The Committee reported that the powers are appropriately delegated and that the provisions for parliamentary scrutiny are appropriate. Given the number of times that noble Lords in this Committee have recently prayed against Department of Health regulations, I do not believe that the use of negative resolutions is inappropriate. I am sure that we shall have happy hours debating those regulations when they come before us.
    The noble Earl asked about the details and the timetable. The consultation paper that we published last week sets out some of the issues on which we are consulting. That consultation will inform the regulations and help to address some of the issues which he raised on the criteria to be adopted. The aim is to discuss the draft guidelines and regulations with stakeholder groups in October-November 2002 in the light of the consultation. We hope to publish the framework and draft regulations and guidance for public consultation towards the end of the year. We aim then to finalise regulations and issue them, with guidance, early in 2003. That is important because we need to allow sufficient time for those who have to implement the new approach from 2004. They must have time to prepare the ground for that.
    Earl Howe: I am grateful to the Minister for his reply. I did not really expect that the amendment as it stands would find favour with the Government. However, in mitigation, I think that the Minister will appreciate the weight that the Committee attaches to the clause. It is largely for that reason that I felt it an appropriate amendment.
    I realise that the Delegated Powers Committee of your Lordships' House has declared that the procedure in the Bill is appropriate. My concern is that the other place does not always have an opportunity to debate negative instruments. We in your Lordships' House have that privilege if we wish to insist upon it. Members of Parliament, for reasons that I need not explain, do not necessarily have that privilege. I am sure that when the regulations are laid we shall wish to pay close attention to them and debate them.
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    It was helpful that the Minister was able to give a clear idea of the timetable. I thank him for that. We shall look forward to reading the consultation document that has been issued in more detail and to hearing some of the feedback from key stakeholders.
    I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 4 agreed to.
    [Amendment No. 28 not moved.]
    Clauses 5 to 7 agreed to.
    Clause 8 [Adoption support agencies]:
    Baroness Barkermoved Amendment No. 29:
    Page 7, line 3, after third "of' insert "professional"
    The noble Baroness said: This is a simple amendment which I hope will find favour with the Committee. Clause 8 defines what is meant by an adoption support agency. As I have said before, those of us who come to this subject afresh have been delighted, not to say bewildered, to meet the variety of organisations that work in this field.
    The purpose of the amendment is to draw a distinction between bodies that provide regulated services under this Bill and previous adoption Bills, and the many voluntary—truly voluntary—organisations, and self-help organisations, which provide invaluable support but which perhaps in many cases are of a wholly voluntary nature with no staff nor, indeed, vast resources. Clearly, therefore, they should not come within the scope of this Bill and within what we are in no doubt will be a very heavy and demanding regulatory framework.
    As Members of the Committee would expect, coming from my professional background I very much believe in the encouragement and development of voluntary sector activities. That is important, as is the quality that such organisations bring to this sort of work. It would be a shame if, almost inadvertently, we were to inhibit that valuable work from continuing by wrongly including them in this legislation.
    At the same time, it is wholly clear within this Bill that there is a demarcation between what a voluntary organisation should do and what a voluntary adoption agency, providing regulated services, is. There should not be any confusion in that respect. That is why I have tabled the amendment. I beg to move.
    Lord Hunt of Kings Heath: I am grateful to the noble Baroness because I agree with what she says. It is important to make sure that we are clear as to who will be covered by the regulatory process, and who will not be. I fully recognise the value of voluntary groups in this area; and, indeed, self-help groups that carry out enormously valuable work. As far as concerns the wording, subsection (1) of Clause 8 makes it clear that an adoption support agency is an undertaking. The term "undertaking" has the same meaning as Section 121 of the Care Standards Act 2000. It includes any business or profession, whether voluntary or profit making, but does not extend, for example, to a self-help group meeting in a person's own home.

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    In line with this definition, an adoption support agency may be a voluntary or profit-making undertaking, and either an organisation or a sole practitioner. Adoption support providers that are not currently subject to any form of inspection or regulation, such as post-adoption support centres and independent counsellors providing adoption support services, will be required to register as adoption support agencies.
    Adoption support providers that are already regulated through other means, such as approved voluntary adoption agencies, NHS providers and the registrar-general, will be exempt from the requirement to register as an adoption support agency. In so doing, we are hoping to avoid unnecessary duplication of registration. The providers who are exempt from the requirement to register are listed at subsection (2)(a) to (e) of Clause 8.
    Subsection (2)(f) of Clause 8 provides a power to make regulations to add to the list of adoption support providers that are not obliged to register as adoption support agencies. We will make regulations under this provision if we believe that other adoption support providers should be exempt from the requirement to register, where these providers are regulated through other means. We will use this power to avoid duplication of registration if such duplication comes to light.
    The amendment amends the definition of an "adoption support agency" in subsection (1) of Clause 8. It provides that an adoption support agency is an undertaking which provides professional adoption support services. While, alas, the term "professional" is not defined by the noble Baroness, it is obviously intended to capture adoption support services provided by those who have an appropriate level of training and expertise.
    In the light of what I have said, I hope the noble Baroness will agree that informal providers of adoption support services, such as the support groups held in people's own homes, will not be classed as adoption support agencies and will not be required to register as such. The last thing the Government would want to do would be to prevent people affected by adoption from supporting each other on an informal basis. We want to encourage this. However, the intention behind the new provisions is to ensure that adoption support services—such as counselling—are provided to a high standard by people with the necessary qualifications, training and expertise to meet adoption-related needs. I hope that that meets the point the noble Baroness has raised.
    6.30 p.m.
    Baroness Barker: I thank the Minister for his response. As he will know, this amendment was not crafted by me but by somebody else. I recognise that the noble Baroness, Lady Howarth, speaks from an independent and experiential point of view, but so do I when it comes to the voluntary sector. I want to make it clear that "voluntary" does not always mean "amateur". I wanted to draw a distinction between
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    those organisations which provide regulated services and those which do not. I may return to that at a later stage. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 8 agreed to.
    Clause 9 [General power to regulate adoption etc. agencies]:
    Baroness Noakesmoved Amendment No. 30:
    Page 7, line 41, at end insert—
    "( ) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
    The noble Baroness said: I rise to move Amendment No. 30. This is a straightforward and familiar amendment, making the regulation-making powers under Clause 9 subject to the affirmative procedure.
    Clause 9 is statutory cover for regulations made under several clauses of the Bill. Those regulation-making powers, taken together, are extremely broad in their scope and will cover many important matters which ought to be debated properly in your Lordships' House.
    Regulation-making powers are particularly important because, under Clause 9(3), the regulations may provide for penalties for contravention or failure to comply with the regulations, with the possibility of a fine up to level five—£5,000 in current money. The Secretary of State will decide in the regulations which of them attracts the possibility of a fine.
    The Government have said very little about the regulations generally under this clause and, so far as I am aware, nothing about the kind of circumstances they would see as appropriate for penalties to be applied. I hope the Minister will say a little more today about the areas where penalties are considered appropriate.
    Perhaps I may remind the Committee about the scope of the regulations that could be made under Clause 9. Clause 10 covers a whole range of issues connected with the management of the agencies. Clause 11, importantly, covers fees to be charged. Clause 12 covers the very important area of the independent review of determinations. Clause 44 is a potentially controversial clause on the suitability of adopters. Clauses 53, 55 and 64 cover various aspects of information collection and provision. All of these are extremely important areas and I know that Members of the Committee will be discussing aspects of them as we progress through the Bill.
    I will not spend a great deal of time today listing the particular questions that we would want answered. I hope the Minister will say a little more about making progress on drafting regulations under this area. I understand that the document published last week covers the areas included in Clause 4, but not the wide range of areas to which I have just referred which would come within the regulation-making power in Clause 9. I hope that the Minister will say what consultation will be undertaken, when he expects the draft to be published and so on. It may well be that, in

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    the light of what he says we will need to revisit the regulation-making powers in some more detailed and targeted way on Report.
    At present, we are simply being asked to agree that a massive amount of detail will be left to subordinate legislation, subject only to the negative procedure. I am well aware—and I am sure the Minister will remind me—that the Delegated Powers and Regulatory Reform Committee has given a green light to these powers. Nevertheless, it is proper for the Committee to reflect on whether these massive regulation-making powers, especially connected with the issue of penalties, ought to indicate that the stronger affirmative procedure should be used in this case. I beg to move.
    Lord Clement-Jones: As reluctant as I am to break my Trappist approach to the Bill, I thought I had better rise to speak to Amendment No. 49.
    Curiosity partly drives the amendment, which is to Clause 14. The grouping is slightly strange. The only common factor in Amendments Nos. 30 and 49 is the word "regulation". Be that as it may, it is an opportunity to talk about the considerable number of regulations under the Bill, how they can be enforced, and the mechanism for enforcing them under Clause 14.
    A major question arises as to why enforcement depends so entirely on the Minister's decision under Clause 14. A memorandum from the Department of Health submitted to the Delegated Powers and Regulatory Reform Committee which tried to explain why it is done by way of ministerial direction—this is how the regulations and the duties under the Bill will be enforced, rather than by penalties of any kind, whether they are fines, imprisonment, or other forms of sanction—stated that:
    "The powers in Clause 14 will only be used in exceptional circumstances and will need to be used on a reactive basis where speed will be important. The Department, therefore, considers that as under Section 7(d) of the 1970 Act"—
    and I confess I have not gone back to the 1970 Act,
    "it is appropriate for them to take the form of order and direction-making powers rather than for them to be set out in primary legislation or regulations. This would give the appropriate Minister maximum flexibility as to their use".
    I am used to circular arguments, but that is a classic circular argument. It is required because it is required and it is appropriate.
    The Minister could do rather better than that, and I know he normally does, in explaining these things. Why should there not be a more general power of enforcement at the behest of the general public or public authorities? We have only the enforcement of the duties under the Bill, which are considerable. We have discussed only half of them so perhaps we are putting the cart before the horse in talking about sanctions before we have gone through the full range
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    of regulations. It seems rather curious that there is nothing that an individual, adoption agency or public authority can enforce under the Bill under Clause 14. Why should there not be sanctions that bite? There is only the declaration of default by the Minister. That is entirely within the Minister's discretion.
    These are serious duties under the Bill, serious regulations to be taken seriously particularly as they concern the welfare of children. There is an extremely good case for having sanctions which have real teeth, and that is why, in Amendment No. 49, we have suggested fines or imprisonment. That would be in addition to the direction-making power of the Minister, not as an alternative.
    Lord Hunt of Kings Heath: I turn first to Amendment No. 30. My arguments have not changed very much since we debated this matter some 10 minutes ago. We believe that in following what is the general principle in relation to legislation in the social services field, we have used the negative power in terms of regulations in general, although there are three clauses in this Bill where the affirmative power is used. However, two of those are Henry VIII clauses and one is a very wide ranging power indeed.
    As the noble Baroness has suggested, the Delegated Powers and Regulatory Reform Committee believes that we have that right. I can assure Members of the Committee that in all these regulations we intend to take a fully inclusive approach towards consultation which will then lead to draft regulations. We will do that in the case of all regulations and we wish to have a fully inclusive approach.
    As far as Amendment No. 49 is concerned, I am delighted that the noble Lord, Lord Clement Jones, has decided to venture into our debates today—he has been much missed! Clause 14 provides default powers for the appropriate Minister which are exercisable where a local authority has failed without reasonable excuse to comply with any of its duties imposed by the Bill or by Sections 1 or 2(4) of the Adoption (Intercountry Aspects) Act 1999. Amendment No. 49 seeks to insert a new subsection into Clause 14 to enable regulations to prescribe that the contravention of any provision of the adoption regulations may be a criminal offence punishable by a maximum level five fine or three months' custody.
    Regulations which will set out how adoption agencies and adoption support agencies are to exercise their function will be made under Clause 9. Clause 9(3) provides that regulations may provide that anyone who contravenes or fails to comply with any provision of regulations made under Clause 9 will be guilty of an offence punishable by a fine not exceeding level five, which is currently set at £5,000. A new subsection to Clause 14, to provide penalties for breaching adoption regulations is, therefore, unnecessary.
    However, Amendment No. 49 also provides for the possibility of a custodial sentence of up to three months for a breach of regulations. We do not believe

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    that this is appropriate because again, regulations under Clause 9 will make provision for any purpose relating to the exercise by local authorities or voluntary adoption agencies of their functions in relation to adoption. They will also make provision for any purpose relating to the exercise by adoption support agencies of their functions in relation to adoption support services. Local authorities, voluntary adoption agencies and adoption support agencies will all be subject to regular inspection by the National Care Standards Commission.
    If a local authority fails to perform those functions adequately, the appropriate Minister may then use the default powers under Clause 14. Of course, that is the point which was made so eloquently in the department's memorandum, to which the noble Lord referred, and the argument there is very compelling indeed. The point is that you might need to take action very quickly, which is where the Minister's default powers would need to be made. However, that has to be looked at alongside the context of Clause 9(3) where we have further regulation-making power in that aspect.
    There are, thus, a number of ways in which action can be taken, including the regulatory power of the National Care Standards Commission itself, which will be taking over in this area from April 2003. I hope that that has been of some clarification to the noble Lord and that he will see fit to withdraw his amendment.
    Lord Clement-Jones: I shall, if I may, interrogate the Minister a little further. I do not think he expected to get away quite as lightly as that. The reference he mentioned—Clause 9(3)—does indeed talk about "an offence" and "subject to summary conviction" and so forth without the imprisonment sanction, but that is only in respect of regulations made under Clause 9. The amendment seeks a much wider sanction in respect of all duties under the Bill and, indeed, the Minister's direction-making powers also cover the full range of duties in the Bill as well.
    Therefore, the Minister has partially answered the question as regards the regulations under Clause 9, but there are other regulations and duties under the Bill that require a similar sanction. Since there is already the sanction of a fine, if not imprisonment, does the Minister agree that Clause 9(3) sanctions should sweep up other regulations under the Bill?
    6.45 p.m.
    Lord Hunt of Kings Heath: As far as my reading is concerned, we know that Clause 9 relates to the general power to regulate adoption agencies. It is clear that what is encompassed in the clause is the exercise by local authorities or voluntary adoption agencies of their functions in relation to adoption or the exercise by adoption support agencies of their functions in relation to adoption support services. That is a very wide description of the action that can be taken under subsection (3).
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    I am not persuaded that with the provisions of the Bill, particularly with the default provision in Clause 14, we do not have enough tools at our disposal to ensure that the Bill is properly regulated and that proceedings can be taken against people who do not act appropriately. However, I am obviously happy to consider any further comments the noble Lord has to make on this.
    Baroness Noakes: Will the noble Lord say whether Clause 9(3) applies to regulations made for the purposes of Clause 4 relating to the assessments which we were discussing earlier?
    Lord Hunt of Kings Heath: My understanding is that the work of the local authority in ensuring that adoption support services are adequate and effective is, and can be seen to be, part of its general responsibilities in relation to adoption, so I think that the answer is "yes".
    Lord Clement-Jones: The Minister may want to write afterwards, because "under this section" means subsection (3). I do not want to push the Minister into a corner, but subsection (3) deals only with the issues in Clause 9.
    Lord Hunt of Kings Heath: I shall look at this and write further, but subsection (1) makes it clear that:
    "Regulations may make provision for any purpose relating to … the exercise by local authorities or voluntary adoption agencies of their functions in relation to adoption".
    Lord Clement-Jones: I do not want to continue this ad nauseam because non-lawyers will perhaps find it extremely dull, although accountants, or, indeed, actuaries, might find it very exciting. Those would be regulations made under Clause 9. They refer specifically to regulations made "under this section" and therefore they would be Clause 9(1) regulations as opposed to Clause 4(6) regulations, for instance, which would be a separate set of regulations. I suppose that one might say that they are made under both sections. There might be some fancy footwork that could be adopted, but I suspect that it would be quite difficult to provide for the sanctions of all regulations under the Bill. In fact, I am sure that it would he very difficult to provide for all regulations under the Bill by having the sanctions set out in Clause 9(3). That is my point. It should be possible under the Bill for others—not just the Minister—to have the power of sanctions. In turn, those sanctions should be more powerful than simply the power of direction. In a sense, that is an administrative matter; it is not really a genuine sanction against someone who has failed to carry out a very important duty under these regulations.
    If one were to put that in parallel with the Care Standards Act, which we debated at some length, one would see that they are not on all fours, basically, whereas under the Care Standards Act one would find such penalties where regulations had been

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    transgressed. There is some homework still to be done in that respect. It would be useful for that to be further explored within the department.
    Baroness Noakes: I agree with the noble Lord, Lord Clement-Jones, on that point. We await some clarification from the Minister.
    Could the Minister respond to two questions that I posed? Can the noble Lord give any indication of the kind of areas where penalties are likely to be applied? Can he also say something about when the regulation-making process will begin and end?
    Lord Hunt of Kings Heath: I cannot give an exact date regarding when the regulations will be available in draft form, but I shall certainly see whether I can find out when this is likely to be.
    To give the noble Baroness some idea about this, I should explain that Clause 9(3) mirrors the position under the Care Standards Act. For example, regulations may provide that failure by a local authority, a voluntary adoption agency, or an adoption support agency to comply with regulations relating to the exercise of their functions, may be a criminal offence. There are examples in the children's homes regulations and the fostering agency regulations, where a breach of regulations by a local authority made under the Care Standards Act will be a criminal offence.
    Under the children's homes regulations of 2001, it is an offence to contravene or fail to comply with regulations that cover, for example, the requirement to compile a statement of purpose, or the requirement to appoint a manager. The offence applies equally to local authorities and to independent children's homes.
    One might also look at the Fostering Services Regulations 2002, which deal with contravention or failure to comply with a number of regulations, including those relating to producing and reviewing a statement of purpose, as well as arrangements for the protection of children and the staffing of the fostering services. Failure to comply with those regulations, or contravention of those regulations, would render a local authority liable to prosecution. I hope that that gives a flavour of what regulations might provide for. We clearly need to do more work on that before we are in a position to consult.
    Baroness Noakes: I thank the Minister for that information. We have had an interesting discussion on this area of the Bill, but it leaves me with a degree of unease that there is so little worked out in the Government's position. We are referred to the kind of regulations that have been made under previous legislation, and somehow we deduce that this represents the Government's current intention in relation to the kinds of regulations that might be made under this Bill. Clearly there is no purpose in pursuing that in detail today. We shall reflect on what has been said when we read the report of this debate in Hansard. We may well want to return to this area, given both the wide-ranging regulation-making powers but, more
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    importantly, the ability of Government to attach the possibility of a criminal offence to some of those regulations. In the mean time, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 9 agreed to.
    Clause 10 [Management etc. of agencies]:
    Baroness Thomas of Walliswoodmoved Amendment No. 31:
    Page 9, line 7, at end insert—
    "( ) as to keeping records."
    The noble Baroness said: This is a very simple amendment, which seeks to amend the end of Clause 10 by proposing that regulations should be made, "as to keeping records".
    There is a phrase under Clause 10(1)(f) that provides that regulations may make provision as to "the keeping of information". I am not quite sure what that means. Most people would think that a "record" is a little different from "information". It is something which is formally done in order to explain to everyone what one's work has been and how it has been carried out. In bodies that are regulated through statute, those records very often have to be kept in an approved form.
    We have tabled the amendment to find out how seriously the Government, in proposing these regulations, take the matter of keeping records. I do not need to repeat the arguments that I made at an earlier stage, because this amendment really falls in the same group. I beg to move.
    Lord Hunt of Kings Heath: As I have said, I agree that proper records need to be kept. We will certainly ensure that that happens. As far as concerns the definition of "the keeping of information", I should explain that Clause 139, which provides general interpretation, defines "information" as,
    "information recorded in any form".
    My interpretation of that is that the regulation-making power in subsection (1)(f) already enables regulations to be made, as it describes how voluntary adoption agencies and adoption support agencies must keep their records.
    The word "information" is used because of developments in information technology; for example, the term "record" may not include information sent via e-mail, whereas the term "information" does. Later on, during the passage of the Bill, I know that we will return to the debates that we had on the tobacco Bill on this fascinating issue.
    I hope that I have assured the noble Baroness that the wording does meet her requirements.
    Baroness Thomas of Walliswood: I thank the Minister for his reply, and beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 10 agreed to.
    Lord Astor of Hevermoved Amendment No. 32:
    Afer Clause 10, insert the following new clause—
    "PROVISION OF INFORMATION AFTER DEATH OF AN ADOPTED PERSON
    In relation to local authorities, voluntary adoption agencies and adoption support agencies, regulations under section 9 may provide that, where those bodies become aware of the death of an adopted person, they may give information to the natural parents of that adopted person."
    The noble Lord said: I rise to move Amendment No. 32. The subject of the notification to a natural parent of an adopted child is a complex one. When a child is given up for adoption, we appreciate that the vast majority of natural parents never forget the pain and trauma of giving up that child. It is, though, in the interests of the child that the subsequent adoptive family is given primacy, in order to provide a stable, loving family in which he is able to feel that he belongs. Some adopted children do not wish to seek out their natural parents, as they find their adoptive family to be sufficient emotionally. Conversely, some natural parents will find it easier, or indeed, less painful, to put this event behind them.
    Previously, a natural parent had very limited rights to contact a child after having given him up for adoption. However, if an adoptee dies, there must be a presumption that it is right to tell a natural parent of his death. Indeed, this may help to bring some closure to the trauma that is felt by a natural parent at having given up a child.
    The amendment before the Committee seeks to balance these complex issues in a measured manner—it imposes a responsibility, not an outright duty. It allows for a natural parent to be told of the death of an adoptee in order to allow for that emotional closure of which I spoke earlier. The intention is not to add unnecessarily to the emotional burdens felt by both natural and adoptive parents.
    In the Special Standing Committee in the other place, the Minister said that the Government were prepared to re-consider the matter and would consult adoption stakeholders about an appropriate way forward. Our amendment seeks to flush the Government out on this. I beg to move.
    Lord Hunt of Kings Heath: Our National Adoption Standards say that where adoptive parents have agreed to inform the agency of the death of the adopted child, the birth parents or the next of kin should, if they wish, be informed by the adoption agency of the adopted person's death.
    I think that we all recognise that these matters need to be handled in the most sensitive way possible. While the Bill was before the Commons Standing Committee, an amendment was tabled that would have placed on the face of the Bill a duty for the adoption agency, where it became aware that the adopted person had died, to make reasonable efforts to inform the birth parents of his death. The Government considered that, rather than placing such a duty in the Bill, it would be better to place such a requirement on adoption agencies through regulations under the powers in Clause 9. This would provide the
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    flexibility needed to prescribe, after due consultation with adoption stakeholders, the way in which adoption agencies should carry out this sensitive duty.
    We would, for example, be able to prescribe the manner in which this information is received from the adoptive family and passed to the birth family; to prescribe the type of information, such as cause of death and place of burial; and the way in which adopters' views may be considered, given that this information could identify them. Above all, Nye would want to ensure that this sensitive information is handled and passed on with care and consideration for the feelings of all concerned. As the noble Lord, Lord Astor, said, my colleague Mrs Jacqui Smith gave a commitment at Commons Committee stage that we would consider providing for this under Clause 9 and that we would consider and consult with adoption stakeholders.
    I cannot add much more to that at this stage. I have set out some of the issues and parameters on which we shall consult. Of course, we also have the ability in Clause 9 to make appropriate regulation-making powers.
    7.00 p.m.
    Lord Astor of Hever: I thank the Minister for that reply. However, I am slightly disappointed as I was hoping that he would perhaps offer to table at Report an appropriate government amendment. I shall consider the matter in the meantime. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 11 [Fees]:
    Baroness Barkermoved Amendment No. 33:
    Page 9, line 18, at end insert—
    "( ) Regulations under section 9 may prescribe the requirement for adoption agencies and local authorities to publish their fees."
    The noble Baroness said: We are nearing the end of a Sitting in which we have gone over and over the vexed question of regulations. I am starting to ask myself at what point regulations should take over. In the previous debate, I was struck by the fact that nothing that the Minister said contravened the comments of the noble Lord, Lord Astor, who was trying to make a point of principle. That is what I am trying to do in Amendment No. 33: I am not in any way trying to limit the flexibility of the department or of the agencies, but to establish in the Bill a point of principle.
    The principle is that when fees and charges are levied, they should be published. As we know, fees vary not only in relation to intercountry adoption but in domestic adoption. People go into the process of adoption for a variety of reasons, but I rather think that monetary issues are not at the top oft heir agenda. Similarly, as this is such an emotional subject, and harking back to an earlier discussion, I do not believe that money is a great incentive to break any of the laws or regulations.

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    The purpose of the amendment is to ensure that, very early in the process, people know where they stand. I am absolutely sure that the Minister will come back and say that the way in which fees work is a matter for regulation, as indeed it is, but I believe that we have reached a point of principle. I beg to move.
    Lord Hunt of Kings Heath: The amendment would highlight that regulations may require that local authorities publish their fees.
    On the whole, the fees charged by adoption agencies to both adopters and prospective adopters and to other adoption agencies are already in the public domain. In respect of fees charged between adoption agencies, the level of the interagency fee is announced annually by the Consortium of Voluntary Adoption Agencies. This is agreed between voluntary adoption agencies themselves. The intercountry adoption guide issued by the Department of Health makes it clear that all adoption agencies charging fees to adopters and prospective adopters should clearly state what the fee will be prior to the start of the process. Agencies are also encouraged to provide applicants with a written statement detailing what is included in the fee. It is a clear legal requirement, both in current legislation and in Clauses 93 and 94 of the Bill, that adoption agencies may not derive a profit from this or any other work. The powers in Clause 9 are therefore sufficiently flexible to enable the appropriate minister to require adoption agencies, through regulations, to publish their fees or to make them known to prospective adopters at the start of the assessment process.
    The Government's current position is that we think the system as currently set up works well. However, we would be willing to consider whether it might be necessary to go down the regulatory route if we received evidence to the contrary.
    Baroness Barker: I thank the Minister very much for that reply. However, very strong representations have made it clear that the current system does not work well in relation to intercountry adoption, where there are such huge variations between different agencies. The problem is not so great in respect of domestic adoptions, but I wonder whether that will continue to be the case when this Bill and its many provisions hit what has already been well described as the "financially restrained world" of local authorities as we know them. The point will be amplified particularly when assessment becomes a reality.
    Although this may seem a small issue, I believe that it may be larger than we suspect. At this stage in our proceedings, however, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 11 agreed to.
    Clause 12 [Independent review of determinations]:
    Lord Clement-Jonesmoved Amendment No. 34:
    Page 9, line 25, leave out from beginning to "a" and insert "There shall be established"
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    The noble Lord said: We come now to an extremely important part of the Bill. On Second Reading, very many noble Lords made powerful points in relation to Clause 12 and the whole issue of the independent review of determinations. Three areas were the subject of concern on all sides of the House: the strength of the duty to establish the procedure; the level of independence under the clause as it stands; and the whole issue of the breadth of the role of the independent review or independent determination, and precisely what steps that covers.
    It is in that context that I move Amendment No. 34, speak to Amendments Nos. 38, 39, 40, 42, 43 and 44, and, I suspect, in the absence of the noble Baroness, Lady Gibson, speak to Amendment No. 37. The words used by my noble friend Lady Barker on Clause 4 are equally apposite here. I thought she was being remarkably moderate when she said that there was something incomplete about Clause 4, but there is certainly something incomplete about Clause 12.
    Historically, children and families have found it almost impossible to have had decisions made about their lives and families reviewed in this context and, if appropriate, overturned. There has been widespread recognition of the need for change and for the institution of a proper system of review. Sir William Utting, in his 1997 report, People Like Us, was crucial in moving the opinion of those in the sector in the right direction.
    Indeed, the reasoning of the Secretary of State during Second Reading of the Bill in the other place was:
    "It is right to build in independent review throughout the system"—
    that seems to be of fundamental importance—
    "whether of the provision of information to adopted children about their birth families, or of decisions to place a child with a particular family … The issues are difficult and emotionally fraught".—[Official Report, Commons, 29/10/01; col. 659.]
    Those are strong words, which we very much support.
    In the recent Appeal Court judgment in S & W & Others, the noble and learned Lord, Lord Nicholls of Birkenhead, said:
    "The view, widespread among family judges, is that all too often local authorities' discharge of their parental responsibilities falls short of an acceptable standard".
    The noble and learned Lord, Lord Mackay of Clashfern, followed that up by suggesting a way forward through independent review. That is a very good background against which to judge whether Clause 12 stands up.
    Sir William Utting, in the same 1997 report, made the case by identifying the need for "shifts in three cultures" and that is where the issue of independence is so vital. That is the test that we need to apply to see whether this clause really will deliver the goods in terms of what he said in that report. The three cultures he was talking about were, first, the directors, trustees and councillors who for reasons of money, prestige or politics find good reason for keeping quiet. Secondly, there were the salaried managers, for whom the

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    failures of subordinates may be represented as an indictment of their own performance and, thirdly, the staff themselves.
    Without re-treading all of that, that is what a proper review system has to face. It has to take a dispassionate look at the situation and be independent.
    The all-party parliamentary group on adoption called for comprehensive and independent appeals as a result. It is well-known that almost every adoption body in the field—judges, lawyers and so on, apart from the ones I have already quoted—have called for that sort of system.
    Under the existing clause, there is provision for prospective adopters who were turned down by adoption panels to appeal against a qualifying determination. It was Jacqui Smith in the other place who made the point that that, essentially, was an appeal to an adoption panel of a neighbouring authority. I am far from convinced, and this is one of the reasons for some of the amendments, as to whether that is satisfactory. That is not satisfactory either in terms of compliance with the Human Rights Act or indeed of common sense, when you think that there will be quite a degree of sympathy between neighbouring authorities in those circumstances.
    The issue of cost is also a matter of considerable concern. In Clause 3(a), where the power to recover the costs of the review from the adoption agency exists, that will inevitably also be a deterrent in those circumstances.
    Moving on to the whole issue raised by Amendment No. 37 in the name of the noble Baroness, Lady Gibson, the width of this clause is inadequate—it does not cover the whole range of determinations that it should. It does not cover the question of a child being moved on to another set of foster carers, or the question of a fosterer whose foster child is moved on for no apparent reason, or approved adopters denied a match with a child they wished to adopt, even if there is no other applicant for that child. It does not cover adoptive families who are turned down in their assessment for post-adoption support, the question of approved couples who are never matched with a child and intercountry adopters applying for home studies being put to the bottom of their local authorities' assessment list.
    Those are just examples of instances during the process which would not be covered by Clause 12 under the review system. That would be deeply unsatisfactory. That is why it is important that significant decisions should be covered by that review. The amendments of the noble Earl, Lord Howe, are very elegant in the way they are set out and they are set out in rather more detail, but they may constitute a list in the Minister's view and we have had those debates before. The Minister may take his choice of amendments and I am sure will approve of one of them.
    Moving on to the question of duty, I do not want to have the traditional may/shall debate, which essentially is constituted by Amendment No. 34 but should be rather more robustly set out in terms of the
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    nature of the independent review system. For that reason, we have set down that there should be established such a review and it should not be a question of whether or not regulations under Clause 9 do that in the first place. We do not consider that an optional extra but an absolutely vital component in the Bill.
    That is pretty much it, except for the issue of intercountry adoption, which is of great concern and importance because there are circumstances where review of determinations made by a central authority or home health departments in respect of intercountry adoption applications needs to be made. I will not go through all the circumstances in which that can be made, given the hour of the day, but significant determination if made by the central authority or the home health department must be transparent and should be open to independent review. Currently, central authority and home health department decisions can be challenged only through judicial review and, even where prospective adopters are in a position to finance this course, it is a slow process which does not sit easily within the intercountry adoption process nor meets the needs of children for whom delay is almost always detrimental. That, in particular, is an important element of Amendment No. 38, which deals with independent adoption. I beg to move.
    7.15 p.m.
    The Deputy Chairman of Committees (Lord Lyell): I advise the Committee that if Amendment No. 34 is agreed to, I would not then be able to call Amendment No. 35. Amendment No. 34 has been proposed.
    Earl Howe: These amendments are about two things; fairness and public confidence. The two are closely linked, of course. The systems that we put in place for the adoption of children have to be fair and to be seen to be fair. I say that because without transparent fairness, the system will not command confidence. Good people who would otherwise put themselves forward as potential adopters will be deterred from doing so. The four amendments in my name that are included in this group, Amendments Nos. 35, 36, 41 and 45, all rest on that premise.
    Clause 12, I say immediately, is very welcome. It is critically important that people who apply to become adopters and are then turned down, for whatever reason, should be able to appeal against that decision. The appeal mechanism needs to be as simple as possible and must of course be impartial. I hope that the Minister will be able to tell us something of 'what the Government have in mind for this process. However, there is a whole mass of other decisions that the local authority can take, upon which, apparently, there will be no prospect of an independent review, as the noble Lord, Lord Clement-Jones has so eloquently stated.
    What happens, for example, when approved adopters are refused a match with a child for whom there are no other potential adopters in sight? What happens to people who want a home study in order to

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    be able to adopt from abroad, but who are constantly put to the bottom of the list? What happens to foster parents who want to adopt the child they are looking after, but who encounter an intransigent policy decision by the local authority not to allow them to do so—because there are local authorities like that? As the Bill stands, those people just have to put up with the situation—they have to lump it.
    Yes, you can complain, but who will the complaint be handled by? It will be handled by the very local authority against whom the complainant feels aggrieved. For a local authority to find itself guilty of gross misconduct or maladministration would be quite a feat. I am not saying that it could not happen, but a priori it is unlikely.
    There is also a question mark over whether the current complaints procedure is sufficiently independent and impartial to comply with the European Convention on Human Rights. Judicial review is expensive. It is out of reach of most people and in any case we do not want to encourage it. As an alternative you can go to the Ombudsman or to the Social Services Inspectorate, but the remit of both of these is limited and in cases that involve possible maladministration by a voluntary agency, the Ombudsman has no locus.
    We have to remember that the system is terribly daunting for children and families. They can feel intimidated by it. They can sometimes feel that they are not being listened to. Of course, I am very much against promoting a culture of complaining. People should not be encouraged to complain about every little thing that goes amiss. We should try to limit the availability of independent review to those matters that have a significant impact on the lives of children or on prospective adopters.
    I will not go through my Amendment No. 41 in minute detail. It is largely self-explanatory and I have covered parts of it already. However, if the Committee will forgive me, I will read out a case history that illustrates what I am trying to drive at. This relates to a couple who live in central London. They say this:
    "We live in a very mixed area racially speaking. Our circle of friends and acquaintances is also mixed. We adopted a 7-year-old white English boy in 1996 and, with many ups and downs, it is now a stable and happy relationship. In 1999, we applied to adopt his mixed-race older half-sister, then 13. We had grown to be very fond of her after regular contact. She had been moved several times in foster care and expressed a desire to live with us. The placement was refused on the grounds that she was of mixed race and we were not. We did our utmost to try to persuade them but nothing was achieved. We still abide by the contact order which we all value but the girl is still in foster-care (she has been in many other placements). We believe the girl, our relationship with the girl and our son's relationship with her—and inevitably our son too—have been ill-served by the LA's refusal".
    This was a case where the couple would have liked to appeal on several grounds. There were no avenues of appeal open to them and the Bill would not provide any either.
    I will speak briefly to my Amendment No. 45. On occasions there will be issues that come before the panel of a technical or legal description where it is
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    important to have professional legal interpretation. In cases of that kind, applicants to the panel should have a right of appeal to the High Court. If the panel felt that a matter would be more appropriately dealt with by court judgment than by itself, it could, as it were, bow out of the process. Subsection (11) of the amendment ensures that children would have the right to be party to the proceedings unless that right had been expressly waived.
    Subsection (14) says that the reasonable costs and expenses of the application to the panel, or any appeal to the High Court, should be paid out of public funds. I have heard quite a lot of concern expressed that the costs of going to a panel or to appeal could impose considerable burdens on private individuals. I am the last person to wish to create cumbersome procedures and I realise that the Committee may fear that what I propose in the amendment is a little cumbersome and over-bureaucratic. However, I do not see it in that way. A proper appeal system need not be bureaucratic. Indeed, it should be seen as essential in my view.
    I come back to where I began which is to the issue of fairness. The system has to command confidence, and to do that, it has to be seen to be fair.
    Baroness Gibson of Market Rasen: I wish to speak briefly to Amendment No. 37. I thank the noble Lord, Lord Clement-Jones, for saying so much of what I would have said far more eloquently than I would have said it. I wish to add one point. I refer to a comment of Alun Milburn, the Secretary of State for Health, who said that he would be happy to hear views on how the independent review system can be strengthened. In the light of that, I tabled the amendment, which I believe is a strengthening one as regards Clause 12(1). It would both clarify and strengthen it. An independent review must be seen to be truly independent, otherwise it will be suspect from the beginning. I hope that the Minister can reassure us that those on the appeal panel will indeed be truly independent.
    Baroness Howarth of Breckland: I would like to support the principle of an independent review panel for the reasons which have been mentioned. I want to add a couple of points. First, when decisions are made about adoption placements, they are necessarily made very much in private because the relevant material is confidential. Therefore, it is always difficult for people to understand how the decisions have been made. They are not subject to any real scrutiny outside that professional milieu.
    I refer to the case history that the noble Earl, Lord Howe, mentioned. Some local authorities take a particular view of these matters. Again, I speak on behalf of social workers who have to implement decisions even if they do not particularly agree with them. It is extraordinarily difficult for families to understand what debate took place because the relevant documentation is confidential. Therefore, it is extremely important that these decisions are subject to external scrutiny and that there should be transparency. There is also a consumer issue here. The people who are consuming the services we are

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    discussing have the same rights to independent review as any other consumer of services. I refer to the issue of human rights. We have to take that point into account as well.
    I was interested in the view of the noble Lord, Lord Clement-Jones, that local authorities might be friendly towards each other. That is not necessarily my experience. Having said that, it is inappropriate that the same people within the system should undertake a review. I would like to see independent panels. We can all hope that the national standards will iron out some of the issues we are discussing with regard to difficult cases that arise. However, that will not confer the same sort of public confidence as a transparent, independent review system would.
    Lord Hunt of Kings Heath: I am grateful for the contributions that have been made. In a sense, the noble Earl, Lord Howe, put his finger on the matter when he said that whilst he recognised the importance of having access to an independent review, he also thought that there should be limits. What we do not want is a system whereby those organisations covered by independent review would be subject to micro-management by such a review process.
    I well understand that the argument will concern where the balance lies. The Bill as it stands gives regulation-making power to make provision as to description of determinations which are qualifying determinations which gives future flexibility in the light of experience. I believe that is a very sensible and balanced way to go forward.
    Amendment No. 35 would require the appropriate Minister, as soon as he exercised his power under Clause 9, to make any regulations in respect of the functions of adoption agencies and adoption support agencies, to establish the independent review mechanism through regulations. Amendment No. 34 has a similar effect in requiring the appropriate Minister to set up an independent review mechanism.
    We promised in the White Paper that we would develop the independent review mechanism. We have also said that we will consult stakeholders in the adoption field on how the independent review mechanism should operate and the determinations which should be used to review. We will be starting this process towards the end of the year and there is no question that we will set up such an independent review mechanism.
    Moving to Amendment No. 36, the effect of this amendment is twofold. First it would apply the independent review procedure to any determination made by an adoption agency and here we come to the question of balance. Members of the Committee will know that our intent is that the independent review mechanism is established for two specific purposes, and I also accept that part of this whole process and reason for such review mechanism is to build up confidence in the assessment process for prospective adopters. I agree with the noble Earl, Lord Howe, on the importance of that.
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    We have gone beyond the original recommendation by extending the scope of the review mechanism to provide a balance for the adoption agencies' use of discretion in the area of access to protected information held in the records they will be obliged to keep in relation to a person's adoption. I must stress that the review mechanism was never intended as a means of micro-managing the day-to-day business of adoption agencies. Also, in relation to local authority adoption services, adoption is a mainstream social service function. The majority of complaints about local authority adoption services must be best dealt with through the existing social services complaints procedure. The whole point of having a complaints procedure is that complaints are addressed to that process.
    I accept there are some Members of the Committee who think that not all local authorities have a very effective complaints procedure, and I share that view. However, the challenge is not to say that we can never, ever achieve a decent complaints procedure; the challenge is to make sure that local authorities do have a complaints procedure, which is why we have the listening-to-people consultation exercise. The answer is not to say that the independent review mechanism can go so wide that almost anything a local authority does under the adoption process is subject to the independent review.
    I really believe that would be a very extensive process of the remit that we had in mind for the independent review mechanism. I do not believe we should allow it to side-track the complaints procedures which are already in place.
    Earl Howe: I am grateful to the Minister. I wonder whether he could comment on one point. Even if we were to see an improvement across the board of local authority complaint procedures and those procedures worked rather better than they do at the moment, does the Minister think there is a question mark over whether local authority complaints procedures comply with the ECHR in terms of their impartiality and independence?
    7.30 p.m.
    Lord Hunt of Kings Heath: Clearly, ECHR considerations are always paramount. If a complaints procedure did not comply with ECHR, that system could be challenged, as could any other decision which is felt not to comply with ECHR. I am not particularly aware of the arguments on that and am certainly prepared to look at it and write to the noble Earl. I would also say to the noble Earl that in any case, what we have here is a flexibility in our approach. If it turns out that there are specific problems which are identified as we continue to monitor the system, we have the flexibility to use the regulation-making power in Clause 12(2) in order to expand on t he scope of the independent review mechanism.
    However, I would plead with Members of the Committee to allow us to proceed as we wish, to focus upon the two areas that we have identified which we believe to be the most critical and sensitive and to

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    enhance the complaints mechanism. Then, in the light of experience, we will have the opportunity to review that. However, when you come for instance to Amendment No. 41, where the determinations are listed at paragraphs (a) to (k), you run into all the problems of a list approach and I question whether that is satisfactory. As I have said already, we are in great danger of widening the potential independent review so much that it really does detract from the normal processes of management of these organisations and the ability of people to use the complaints system.
    I also accept that in this very large group of amendments, there are a number of issues that relate to the panel and how independent it is. I want to make clear that subsection (4) of Clause 12 enables the appropriate Minister to delegate the operation of the independent review mechanism to an organisation and I would assure Members of the Committee that this will help ensure the independence of the review mechanism. Subsection (8) provides that this organisation may be a public body or a private or voluntary organisation and, under subsection (6), the appropriate Minister may make payments to the organisation running the review mechanism in connection with its operation.
    Amendments Nos. 43 and 44 would make clear that the appropriate Minister may delegate the operation of the independent review mechanism only to an organisation which is independent of the appropriate Minister. That is not necessary. We promised to review the independent review mechanism in our White Paper. I have explained, and it was stated in the White Paper, that the independent review mechanism will be operated by an independent body and we intend to use the powers in subsection (4) of Clause 12 to delegate the operation of the independent review mechanism to an independent body.
    Amendment No. 38 seeks to provide for a person in respect of whom the Minister has made a determination to be able to apply to the independent review mechanism for a review of that decision. However, that rather misses the point about the role of Ministers in the intercountry adoption process. Ministers do not make decisions concerning intercountry adoption. The Department of Health and the National Assembly for Wales act as a central authority for intercountry adoptions. That means they check that all the proper procedures and checks have been followed, query any discrepancies in information and then issue a certificate confirming that a competent agency has confirmed the prospective adopters to be eligible and suitable to adopt. Neither Ministers nor the central authorities make a determination which it would be appropriate for the independent review panel to review.
    Amendment No. 42, on the power to recover costs, would omit from Clause 12(3)(a) the words,
    "including the power to recover the costs of a review from the adoption agency by which the determination reviewed was made".
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    On this I can say that the cost of establishing and administering the independent review mechanism will be met centrally from the extra £66 million for adoption announced in the adoption White Paper. However, adoption agencies may be required to contribute to meeting the cost of convening a review panel. This cost will be incurred instead of the costs of holding a second hearing of the agency's own panel, as usually occurs under the current legal framework. We therefore do not think that there will be an additional expense. As I said, however, we have promised to consult on the detail of how this will operate, including any charges to be imposed on adoption agencies. This will ensure that we get the detail right. It is not our intention to impose onerous obligations on adoption agencies.
    Amendment No. 45, on appeal to the High Court, is based on the assumption that the review panel will make decisions—or refuse to make decisions—on, for example, whether applicants should be approved as adopters. It seeks to provide for additional procedures to be operated by the independent review mechanism. However, this fails to recognise that the purpose of the independent review mechanism is to make recommendations to the adoption agencies, not to over-ride their decisions.
    It is our intention that an independent body or organisation, appointed by the appropriate Minister under Clause 12(4), will convene a review panel to reexamine the evidence and make a fresh recommendation to the agency. The adoption agency will then be required by regulations made under Clause 12(3)(e) to consider both its original determination and the recommendation of the review panel before making its final decision.
    The ultimate responsibility must rest with the adoption agency. The agency is responsible for the provision of the full range of adoption services and is accountable for the number and quality of adoptive placements made. We believe that it would be inappropriate to remove from the adoption agency the final decision about the suitability of prospective adopters or about the release of protected information held in agency records.
    A number of other points have been raised, but I should perhaps pause at this stage and return to the substantive point in this whole argument—the range of determinations under which the independent review panel may operate. There is a balance to be struck here; there is no question about that. I have said that we will focus on the two matters that we have identified. However, we will keep this under review. We also have the flexibility of the regulations to allow us to increase that number should it be necessary. We should also have some faith in the ability of the organisations which will operate the adoption service in future to show that they can come up with decent complaints procedures in which the public can have confidence and which can deal with many of the issues rightfully raised in the many amendments that noble Lords have tabled.
    Lord Clement-Jones: It is a great pity that we are debating this at the end of the parliamentary week. I shall be fairly brisk. The Minister gave a rather wide-ranging reply. Although it was welcome in one sense, it was a strange mixture of assurance, of assertion, and, at the very end, of "take faith". I felt that the final part was probably the least credible part of the reply.
    The noble Earl, Lord Howe, put his finger on it not when he dealt with limits but when he spoke about public confidence. The Minister can say, "Take faith in our great new system. I'm sure that it'll all be right on the night", but many of us feel that public confidence will not be achieved or restored without an independent review mechanism with the necessary breadth and independence that these amendments propose. I am quite sure that we shall want to return to this.
    Lord Hunt of Kings Heath: I apologise for intervening, because I recognise that time is getting on. I wonder if the noble Lord would accept that one needs to have some faith. In fact, I stand by the argument that it is necessary in some parts of what we are attempting to do to have strict regulation. As Members of the Committee know, we have a very effective form of performance management coming into play with the National Care Standards Commission. All that is absolutely right.
    We also have the use of the independent review mechanism in specified circumstances. However, as part of the confidence-raising approach, ought we not also to show some confidence in the organisations that will have to work with this at the local level? We must get the balance right. If we are so doubtful about their ability to run this effectively that we have to regulate everything that they do to the nth degree, we will not be showing enough confidence in their ability to do the right job. There is a balance; and I believe that we have got it right.
    7.45 p.m.
    Lord Clement-Jones: At this stage of the evening, have the word "balance" written down about three or four times—indeed, whenever the Minister mentions it. It mounts up over the period of his speech.
    We have to differ on the question of balance. I do not believe that we have achieved that balance. For my part, I have written down the word "caricature". I believe that the Minister has "caricatured" the amendments in terms of saying that it is "micro-management". It is not micro-management. We have designed the amendments so that they represent significant decisions. The approach of the noble Earl, Lord Howe, is slightly different, but they are significant decisions that are being made. They affect
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    the lives of all those different families in different, and highly significant, ways. This is not a question of micro-management. If there are other ways of characterising those decisions, whether by making them significant or by putting them in a list, then that possibility should be explored.
    I turn to the question of limits. When the Minister states that we must have limits, and then merely says that there are two sorts of decisions that are subject to this review process, that is grossly inadequate. We shall, of course, return to that issue at a later stage.
    We are talking about a change of culture. We are being told to take faith, but it is a question of culture, as Sir William Utting and many others, including high court judges of Appeal, and so on, have said in some of the extracts that I quoted earlier. That is why they believe that an independent review process is needed.
    The Minister sought to be frightfully reassuring in terms of promising flexibility under the regulations; for example, we will consult, we will look again if necessary, and so on. I should much prefer—and I am sure all those in this field would much prefer—to have some degree of consensus and agreement right from the outset about what this amounts to in terms of the scope of the independent review. If that means setting them out specifically in legislation, I believe that that would be welcome.
    The Minister also sought to reassure us in terms of subsection (4). The Minister is clearly determined to defend the wording of Clause 12, and not give away an inch. In many cases where he has given us assurances, the words added—for example, "independent"—would give the assurance on the face of the Bill. That would be welcome all round.
    It is a late hour. I do not wish to detain the Committee. It is a question of public confidence. I do not believe the Minister has got it right. The Minister assures us that ex post facto, there will be flexibility. Let us try to get it right first time, rather than tinkering at a later stage. In the mean time, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 35 to 45 not moved.]
    Clause 12 agreed to.
    Lord Hunt of Kings Heath: This may be a convenient moment for the Committee to adjourn until Tuesday at 3.30 p.m.
    The Deputy Chairman of Committees: The Committee stands adjourned until Tuesday at 3.30 p.m.
    The Committee adjourned at eleven minutes before eight o'clock.