HL Deb 23 October 2002 vol 639 cc1417-26

8.30 p.m.

Consideration of amendments on Report resumed.

Baroness Barker moved Amendment No. 117: Before Clause 119, insert the following new clause—

"POWERS OF COURT IN CERTAIN FAMILY PROCEEDINGS In section 37 of the 1989 Act (powers of court in certain family proceedings) there is inserted— (7) Where in any family proceedings in which a question arises in respect to the welfare of any child, the court shall have particular regard on the evidence before it to—

  1. (a) the wishes and feelings of the child considered in the light of his age and understanding;
  2. (b) the need for the separate representation of the child concerned, and upon making an order for separate representation the court may appoint a children's guardian;
and these shall be considered specified proceedings within the meaning of section 41 of this Act."

On Question, amendment agreed to.

Baroness Barker moved Amendment No. 118: Before Clause 119, insert the following new clause—

"PROCEEDINGS RELATING TO REPRESENTATION OF CHILD In section 41(6) of the 1989 Act (representation of child and of his interests in certain proceedings) there is inserted— "(j) on applications under section 8 in specified circumstances to be established by rules of court"

On Question, amendment agreed to.

Clause 126 [Territorial application]:

Lord McIntosh of Haringey moved Amendment No. 119: Page 74, line 15, leave out from "society" to end of line 16 and insert "whose principal office is in England

The noble Lord said: My Lords, in moving Amendment No. 119, I shall speak also to Amendments Nos. 120 and 121. They are technical amendments to the provision relating to the territorial application of the Adoption and Children Act register, made necessary by the amendment made to the Care Standards Act 2000 by Clause 16 of this Bill, which was inserted in Grand Committee.

Clause 126(1) provides the definition of the English adoption agencies to which the provisions on the register will apply. Subsection (1)(b) states that the definition includes, a registered adoption society, where the registration authority is the National Care Standards Commission". Clause 126(2) enables the register to be extended to apply to adoption agencies in Wales, and Clause 126(4) enables the provision for the register to act as an agency for payments to be extended to agencies in Wales.

Those subsections refer to, registered adoption societies, where the registration authority is the Assembly". Under the Care Standards Act, there are two registration authorities—the National Care Standards Commission in England and the National Assembly for Wales in Wales. The Care Standards Act imposes several functions on the registration authorities, including the function of registering voluntary adoption agencies under the Act—such agencies are referred to as "registered adoption societies" in the Bill—and the function of inspecting those agencies.

Clause 16 inserts a new Section 36A into the Care Standards Act. The new section will ensure that, given that branches of adoption agencies will not be registered separately, the National Assembly for Wales has the appropriate level of scrutiny over Welsh branches of voluntary adoption agencies registered in England. Similarly, it will ensure that the National Care Standards Commission has the appropriate level of scrutiny over English branches of voluntary adoption agencies registered in Wales.

The principle of Section 36A is that an agency that has its principal office in England will be registered by the NCSC and an agency that has its principal office in Wales will be registered by the Assembly. It also provides that the NCSC will be the registration authority for the inspection of voluntary adoption agency premises in England and that the Assembly will have the same function in Wales. If a voluntary adoption agency has, for example, a principal office in England and a branch in Wales, the registration authority inspecting a branch of the agency will be a different registration authority to the one that registers the agency as a whole.

Because it is possible that, in respect of a small number of agencies, it may not be easy to identify what is meant by the term "the registration authority", we feel that it would be most appropriate to amend Clause 126 so that the definitions of voluntary adoption agencies refer instead to where the principal office of the agency is. That will meet the objective of ensuring that agencies that have their main presence in England use the register when the register applies to England and agencies that have their main presence in Wales use the register when the register applies to Wales. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 120 and 121:

Page 74, line 21, leave out from "societies" to end of line 22 and insert "whose principal offices are in Wales"

Page 74, line 33, leave out from "societies" to end of line 34 and insert "whose principal offices are in Wales"

On Question, amendments agreed to.

Schedule 3 [Minor and consequential amendments]:

[Amendments Nos. 122 to 127 not moved.]

Baroness Barker moved Amendment No. 128:

Page 96, line 1, leave out paragraph (i).

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 129:

Page 98, line 36, at end insert—

"30A In section 56 (authorised courts), in subsection (3), for "Great Britain" there is substituted "Scotland"."

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 130:

Page 100, line 9, leave out paragraph 39.

The noble Lord said: My Lords, Amendments Nos. 130 and 148 are technical drafting amendments. Amendment No. 130 will leave out the amendment to the Insurance Companies Act 1982 in paragraph 39. It is no longer needed, as that Act has been repealed.

Amendment No. 148 amends Schedule 4 to preserve the ability to amend and rectify registrations in respect of pre-1976 Act adoptions. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 131 to 134 not moved.]

Lord McIntosh of Haringey moved Amendment No. 135:

Page 103, line 8, at end insert— ( ) after subsection (4)(a) there is inserted— (aa) any person who by virtue of section 4A has parental responsibility for the child;"

The noble Lord said: My Lords, in moving Amendment No. 135, I shall speak also to Amendments Nos. 136 and 137.

Clause 110 inserts Section 4A into the Children Act 1989 in order to enable a step-parent to acquire parental responsibility for a child of his or her spouse. Section 4A provides two alternative routes for step-parents to acquire parental responsibility. Such responsibility may be acquired either by agreement between the step-parent and the parents who have parental responsibility for the child or by order of the court.

The measure is intended to provide an alternative to adoption if a step-parent wishes to acquire parental responsibility for his or her step-child. It has the advantage of not removing parental responsibility from the other birth parent and not legally separating the child from membership of the family of that birth parent. The amendments to the Children Act 1989 provide for step-parents to be able to hold parental responsibility for a child.

Amendment No. 135 amends paragraph 55 of Schedule 3, so that it inserts a reference to, any person who by virtue of Section 4A has parental responsibility for the child into Section 10(4), which covers the power to make Section 8 orders, of the Children Act 1989. That means that a person who obtains parental responsibility for a child as a consequence of new Section 4A is entitled to apply to the court for any Section 8 order—residence, contact, prohibited steps or specific issue orders—with respect to that child. Currently, they could apply to the court for leave to apply for a Section 8 order or, if they have a residence order, apply for a Section 8 order.

Amendment No. 136 amends paragraph 62 of Schedule 3, which amends Section 33 of the Children Act 1989, which deals with the effect of a care order. That section provides for the exercise by the local authority designated by a care order of its parental responsibility with respect to a child. The amendment substitutes a new Section 33, which provides that the local authority designated by a care order shall have the power to determine the extent to which a person who has obtained parental responsibility for a child as a consequence of new Section 4A may meet his parental responsibility for the child. The amendment also replaces references to the Adoption Act 1976 with the appropriate references to the Bill.

Amendment No. 137 amends paragraph 63 of Schedule 3, which amends Section 34 of the Children Act 1989, which is headed "Parental contact etc. with children in care". The effect of the amendment is that, if a child is in local authority care, the local authority may allow that child reasonable contact with a person who has obtained parental responsibility for him or her as a consequence of new Section 4A. That would already be the case, if a step-parent had a residence order immediately before the case order was made. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 136 to 138:

Page 104, line 18, leave out paragraph 62 and insert— 62 In section 33 (effect of care order)—

  1. (a) in subsection (3)(b), for "a parent or guardian of the child" there is substituted "—
    1. (i) a parent, guardian or special guardian of the child; or
    2. (ii) a person who by virtue of section 4A has parental responsibility for the child,",.
    2. 1421
  2. (b) in subsection (5), for "a parent or guardian of the child who has care of him" there is substituted "a person mentioned in that provision who has care of the child",
  3. (c) in subsection (6)(b)—
    1. (i) sub-paragraph (i) is omitted,
    2. (ii) in sub-paragraph (ii), for "section 55 of the Act of 1976" there is substituted "section 84 of the Adoption and Children Act 2002",
  4. (d) in subsection (9), for "a parent or guardian of the child" there is substituted "a person mentioned in that provision"."

Page 104, line 25, at end insert ", and (b) after subsection (1)(b) there is inserted— (ba) any person who by virtue of section 4A has parental responsibility for him;"

Page 105, line 34, at end insert— ( ) after sub-paragraph (8) there is inserted— (9) This paragraph does not apply to a local authority placing a child for adoption with prospective adopters".

On Question, amendments agreed to.

[Amendments Nos. 139 to 143 not moved.]

Baroness Andrews moved Amendment No. 144:

Page 109, line 29, at end insert— In section 23 (standards), at the end of subsection (4)(d) there is inserted "or proceedings against a voluntary adoption agency for an offence under section 9(4) of the Adoption Act 1976 or section 9 of the Adoption and Children Act 2002".

The noble Baroness said: My Lords, Amendment No. 144 amends the Care Standards Act 2000 to provide that the national minimum standards are to be taken into account in proceedings for an offence against a voluntary adoption agency either under Section 9(4) of the Adoption Act 1976 or Clause 9 of the Bill. Proceedings may be brought against a voluntary adoption agency for a breach of any regulations which are made under Section 9(2) of the 1976 Act. Regulations will be made under Section 9(2) in relation to voluntary adoption agencies similar to those made under Section 22 of the Care Standards Act in relation to fostering.

Those regulations cover issues such as the persons who are fit to manage an agency, the fitness of premises and so on; they regulate the way the agency is to be run. The draft regulations for voluntary adoption agencies have been issued for consultation along with the draft national minimum standards. Similarly, regulations will be made under Clause 9, as amplified by Clause 10, covering the same sorts of issues in relation to the running of adoption agencies and adoption support agencies.

The national minimum standards expand on and explain what is required in the regulations. For example, one of the draft regulations requires a voluntary adoption agency to provide the registration authority with a statement of purpose. Standard 1 of the draft national minimum standards sets out what should be included in the statement of purpose. Draft standard 2 sets out the skills required to manage an agency.

Therefore if the registration authority is to judge whether the agency has breached a regulation it will be important to refer to the appropriate standard in the national minimum standards to be clear what is expected. It is essential for the registration authority to be able to take the national minimum standards into account when bringing a prosecution for a breach of the regulations. On that basis I hope that your Lordships will be able to accept the amendment. I beg to move.

On Question, amendment agreed to.

Schedule 4 [Traditional and transitory provisions and savings]:

[Amendments Nos. 145 to 147 not moved.]

Lord McIntosh of Haringey moved Amendment No. 148:

Page 116, line 2, at end insert— "Registration of adoptions

  1. (1) The power of the court under paragraph 4(1) of Schedule 1 to amend an order on the application of the adopter or adopted person includes, in relation to an order made before 1st April 1959, power to make any amendment of the particulars contained in the order which appears to be required to bring the order into the form in which it would have been made if paragraph 1 of that Schedule had applied to the order.
  2. (2) In relation to an adoption order made before the commencement of the Adoption Act 1976, the reference in paragraph 4(3) of that Schedule to paragraph 1(2) or (3) is to be read—
    1. (a) in the case of an order under the Adoption of Children Act 1926, as a reference to section 12(3) and (4) of the Adoption of Children Act 1949,
    2. (b) in the case of an order under the Adoption Act 1950, as a reference to section 18(3) and (4) of that Act,
    3. (c) in the case of an order under the Adoption Act 1958, as a reference to section 21(4) and (5) of that Act."

On Question, amendment agreed to.

Baroness Barker moved Amendment No. 149:

Page 116, line 4, leave out paragraph 19.

On Question, amendment agreed to.

Schedule 5 [Repeals]:

[Amendments Nos. 150 to 153 not moved.]

Clause 136 [Orders, rules and regulations]:

Lord McIntosh of Haringey moved Amendment No. 154:

Page 80, line 18, at end insert— ( ) under section 9 which includes provision made by virtue of section 45(2),

On Question, amendment agreed to.

Clause 137 [Rules of procedure]:

[Amendment No. 155 not moved.]

Earl Howe moved Amendment No. 156:

Page 81, line 19, leave out from "that" to end of line 20 and insert "the person may attend and be heard"

The noble Earl said: My Lords, this amendment concerns the rules of procedure which will cover adoption and placement hearings. Clause 137 says that notification of a hearing is required to be given to those whose consent is required; that is, largely birth parents, but the notice must say that the person need not attend unless the court requires it or the person wishes it.

My amendment is about language. Of course it is clear to us all that a birth parent can attend a hearing. But I am not convinced that many birth parents, for whom the adoption of their child will be a difficult and emotional matter, will read beyond the bit about them not needing to attend unless the court requires it. In short, the message needs to be more positive and welcoming. In most cases birth parents should be encouraged rather than discouraged.

We discussed the matter in Grand Committee when this amendment had the distinction of being the last amendment to be debated. The Minister explained that under the existing regulations the letters of notification sent to parents were a little more inviting than the language of the Bill implies and she said that there was no reason why consultation should not take place before the new court rules were issued under the Bill, once it is an Act. But she also graciously said that she would look further at whether the Bill could make explicit the underlying thrust of my amendment.

I have tabled the amendment again in the hope of hearing a little more about that from the Minister. The lack of a government amendment rather suggests that her advisers have said "No", which would be a pity. If that is the case, will the Minister give a commitment to consulting with the adoption and children's organisations before the new rules are finalised as there is certainly support for an approach which is more positive and inclusive than the dry words of the Bill imply? I beg to move.

Baroness Scotland of Asthal

My Lords, I am unhappy that I cannot give the noble Earl happier news. The reason is simple: if noble Lords look at Clause 137, it is not quite as negative as it appears at first glance. Subsection (3)(b) states: of the fact that, unless the person wishes or the court requires". It is phrased thus because on occasion the court will wish to order that someone attends. We understand that this is a delicate moment for parents who may wish not to attend. One does not wish to put undue pressure on them, particularly if they have already gone through traumatic proceedings.

Although the provision remains as phrased, I assure the noble Earl that, in accordance with good practice, the issue shall be dealt with sensitively. Sometimes the local authority will nuance the letter depending on the nature of the parent who is to receive it. We will certainly consult on the rules before they are published, if that assists the noble Earl. We understand why he has expressed these concerns.

Earl Howe

My Lords, I am grateful to the Minister for all that she has said. I accept her assurance completely. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 138 [Supplementary and consequential provision]:

[Amendment No. 157 not moved.]

Clause 140 [General interpretation, etc.]:

Lord Hunt of Kings Heath moved Amendment No. 158:

Page 83, line 43, at end insert— "fee" includes expenses

On Question, amendment agreed to.

[Amendment No. 159 not moved.]

The Deputy Speaker [Viscount Simon]

My Lords, in calling Amendment No. 160 I must advise your Lordships that if the amendment is agreed to, I cannot call Amendments Nos. 162 to 164 inclusive due to pre-emption.

Earl Howe moved Amendment No. 160:

Page 84, line 46, leave out subsections (4) to (7).

On Question, amendment agreed to.

[Amendment No. 161 had been withdrawn from the Marshalled List.]

[Amendments Nos. 162 to 164 not moved.]

Schedule 6 [Glossary]:

[Amendment No. 165 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 166:

Page 120, line 13, at end insert— fee section 140

On Question, amendment agreed to.

[Amendment No. 167 not moved.]

Lord McIntosh of Haringey moved Amendment No. 168:

Page 120, line 31, at end insert— records (in relation to section 82" Chapter 5 of Part 1)

The noble Lord said: My Lords, Amendment No. 168 is a small technical amendment to insert into Schedule 6, the Bill's glossary, a reference to the word "records" in relation to Chapter 5. I beg to move.

On Question, amendment agreed to.

Clause 144 [Commencement]:

Lord McIntosh of Haringey moved Amendment No. 169:

Page 85, line 38, after "(1)" insert "(other than an order bringing paragraph 52 of Schedule 3 into force)"

The noble Lord said: My Lords, this is a minor amendment to Clause 144, which makes provision in relation to commencement. Clause 144(1) provides for the Bill to come into force on such a day as the Secretary of State appoints by an order. Clause 142 provides that before the Secretary of State makes an order under Clause 144(1) he must consult the National Assembly for Wales.

This amendment provides that where the Secretary of State makes an order bringing paragraph 52 of Schedule 3 into effect, he is not under an obligation to consult the Assembly. Paragraph 52 amends the Adoption (NorthernIreland) Order 1987 and applies only to Northern Ireland and it would be inappropriate for there to be a requirement to consult the Assembly. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 169A:

Page 86, line 16, leave out "and 56 to 65" and insert "56 to 65 and (Pre-commencement adoptions: information)"

On Question, amendment agreed to.

Clause 145 [Extent]:

[Amendments Nos. 170 and 171 not moved.]

House adjourned at ten minutes before nine o'clock.