HL Deb 30 October 2002 vol 640 cc199-251

3.6 p.m.

Read a third time.

Clause 3 [Maintenance of Adoption Service]:

Baroness Barker

moved Amendment No. 1: Page 4, line 3, at end insert ", and ( ) for the provision of information about adoption support services The noble Baroness said: My Lords, I return once again, in a slightly different way, to an issue that has been in the forefront of our considerations; namely, how best to organise and provide support for people who adopt children.

Over the many months that we have worked on the Bill, we have returned time and again to the key question of what it is reasonable to expect local authorities to provide in terms of post-adoption support. We have had interesting and, at times, heated discussions about the way in which adoption services should dovetail with other support services for children.

We have had equally interesting debates—in large part informed by the outstanding contributions of the noble Baroness, Lady Howarth of Breckland—on how best to set up a system of adoption support which will enable local authorities to recognise the distinct problems that adopted children have, without giving them greater importance than those of many other children—for example, those with special educational needs.

We have argued at considerable length about the duties of local authorities to provide adoption support once they have fulfilled their obligation under this legislation to assess adoptive families and adopted children in terms of their support needs. I think it is accurate to say that we have reached no agreement on the matter, and it is highly unlikely that we shall reach agreement on a working definition of support that would meet everyone's requirements.

This amendment has not been debated previously. We on these Benches have considered all the previous discussions and have arrived at a different position which I hope will find favour with the Minister. The amendment is not about requiring local authorities to make particular service provision. It is about placing on the face of the Bill an explicit duty on local authorities to provide an adoption information service.

Clause 3 requires local authorities to maintain an adoption service. I suspect that a response to the amendment will be that it is unnecessary on the grounds that if a local authority is under an obligation to maintain an adoption service, surely it would need to provide information about it. However, I fear that in practice that does not necessarily follow.

In my work outside the House, I frequently spend time sitting in, or walking into, local authority social services department buildings where I often see notices encouraging people to become an adoptive parent. The precise issue at the heart of the amendment is not the provision of services by the local authorities but the problem of adoptive parents' complete lack of knowledge of the services available and where to find them. During the adoption process, many adoptive parents become more familiar with social services departments than the rest of us. But they still do not know the complete range of services they can access.

For some adoptive parents the first few years of adoption—and it is a life-long process—will be fine, with the result that they have minimal contact with the statutory authorities. However, something may go wrong down the line when parents are out of the loop and do not know how to find the help they need. We talk endlessly about the value of support and, sometimes, crisis intervention for adoptive families. The amendment simply requires each local authority to maintain an adoption service. It makes no comment about how it should be provided. The service could, for example, be contracted out to a voluntary organisation or a children's organisation.

As a result of the many hours of discussion, I have reached the fundamental conclusion that if we give adoptive parents nothing else, we must give them the chance to access services when they need them, even if they pay for those services themselves, which happens frequently, as adoptive parents will confirm. With that in mind, I move this amendment. I hope that my explanation of it finds some favour with the Minister. I beg to move.

3.15 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)

My Lords, I welcome the opportunity to debate again the provision of adoption support services. The noble Baroness, Lady Barker, said that we do not agree, but there is agreement on the essential need for available proper adoption support for everyone who needs it. It would not be right to leave the House in any doubt that we are committed to ensuring that local authorities do the right thing. All the evidence suggests that adoption support is essential to help to ensure that adoption works for children, who are the paramount consideration, and for the parent, or parents.

Although we disagreed with the amendments tabled by the noble Baroness, for reasons I do not need to repeat for the fourth or fifth time, we do not disagree one iota with the need to ensure that proper support services are available. I reassure the House that it will be part of my department's performance management of local authorities to provide appropriate support services. We are ensuring through the National Care Standards Commission and its successor body that adoption services will be properly inspected in future. That will also be an important matter for consideration.

Again, I have no argument with points raised by the noble Baroness about the importance of available information. She talks of seeing in social services departments promotional literature encouraging responsible people to consider adoption, and stresses how important it is that information should be available at that first stage and throughout the adoption process and beyond. As she says, adoption is for a lifetime. We have recognised that in the Bill which makes clear that adoption support services must be available after adoption has taken place.

The Bill already gives us all we require in the placing of responsibility on local authorities. The range of adoption support services will be set out in regulations made under Clause 2. The provisions in Clauses 2 to 4 will be used to underpin our new framework for adoption support services and financial support promised in the White Paper. The amendment would provide for Clause 3(2) to set out that local authorities must make and participate in arrangements for the provision of information about adoption support services. Again, I have no argument that adopters should be informed of the types of adoption support available, and we have made clear that local authorities must make that information available.

Clause 2(6) sets out what is meant by adoption support services. It specifies that this includes counselling, advice and information. Through the duty on local authorities to make and participate in arrangements for the provision of support services in Clause 3(2)(b), local authorities are already under an obligation to arrange for the provision of information. The regulations that follow will expand on precisely how that duty should be exercised. On Report, I explained that we were giving careful thought to how we can best assist those affected by adoption both to be informed about and to access the various support services. I agree with the noble Baroness that clear and accessible information about the availability of the services is critical if those affected by adoption are to be helped to access the right support services at the right time.

As I said on Report, as part of this work we are considering the role that key adoption support workers might play in helping those affected by adoption both to identify support needs and to help them to access services to meet those needs The key worker would not necessarily have to be a current council social worker. In our recent consultation document on adoption support we asked detailed questions about the key workers. We are analysing the responses to that consultation.

In conclusion, the Bill as now drafted meets all the requirements that the noble Baroness seeks. I also give my commitment to her and the House that we will ensure that the timely provision of as much accurate and concise information as possible will be part of a rigorous performance management regime for adoption support services.

Baroness Barker

My Lords, I thank the Minister for that helpful reply, which added to his previous statements about the possible role of key workers. There was not much clarity on that on Report. As the noble Lord knows, I eagerly anticipate the evaluation report, which he has informed us will come in about three years as a result of our discussions. When we discuss those matters, we shall assess the information on the basis of the extent to which there is a uniform baseline of adoption provision. All the reports produced by the department have time and again shown up the patchy nature of adoption support services. That is a very important issue for the increasing number of people whose adoption happens in one local authority and who then move to another. We have talked about that before. People's needs are not uniform, so I am not asking for uniform services throughout the country, but there needs to be a baseline. The provision of information is a fundamental key factor in that.

I am heartened by what the Minister has said about the potential role of key workers and about the advice and guidance that will come from his department on the provision of information. At this stage in the Bill it always feels as though we have debated things seven or eight times, but I believe that it has been helpful to do so again and put a bit more on the record. I thank the Minister for his reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Adoption support agencies]:

Lord McIntosh of Haringeymoved Amendment No. 2:

Page 7, line 17, after "adoption" insert "other than for the purpose mentioned in section 97(1)"

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 3 to 6. On Report, the noble Baroness, Lady Noakes, tabled amendments about registered adoption support agencies being able to obtain information from the registrar-general and adoption agencies. In response, the Government tabled an amendment to insert Clause 97. These amendments are mostly consequential on the new Clause 97.

Amendment No. 2 is in Clause 8, which amends the Care Standards Act 2000 to make new provision for the registration of adoption support agencies by the registration authority. It allows agencies other than adoption agencies to provide support services in connection with adoption, provided they are properly regulated. This could include, for example, birth records counselling. Subsection (1)(a) provides that an undertaking is not an adoption support agency simply because it provides information about adoption. This allows organisations to be able to provide general information about adoption without having to register and be regulated. Amendment No. 2 changes subsection (1)(a) by inserting a reference to the new clause for information in connection with pre-commencement adoptions. The effect is that, if an undertaking provides information for the purpose of Clause 97, it will need to be a registered adoption support agency. By requiring it to register, we will be able to provide robust safeguards and ensure that intermediary services are provided to an appropriately high standard by staff with the necessary training and expertise.

Amendments Nos. 3 to 5 are in Clause 9, which authorises the making of regulations for the exercise of functions of local authorities, voluntary adoption agencies and adoption support agencies in relation to adoption. Since we put in Clause 97, we have reviewed our policy for access to information for adoptions made after enactment. We consider that adoption support agencies should also be able to play a valuable role in helping adoption agencies with the post-Bill scheme by carrying out some of the work at the request of adoption agencies or at the request of individuals who wish to apply for information held by adoption agencies. Amendment No. 3 omits the reference to support services so that regulations can make provisions for any purpose relating to the exercise by adoption support agencies of their functions in relation to adoption. The effect of that is that they can be regulated in their role of assisting adoption agencies in the disclosure of information for adoptions made after the Bill's enactment.

Amendment No. 5 is a technical amendment necessary to include a reference to the new clause on information for pre-commencement adoptions. Amendment No. 4, which is not directly consequential on Clause 97, is a technical amendment inserting a reference to Clause 45 in Clause 9(2).

Amendment No. 6 is in Clause 11, which amplifies the powers in Clause 9 in relation to the charging and payment of fees. Clause 11 enables the appropriate Minister to make regulations prescribing the fees that may be paid and charged by adoption agencies to persons and organisations that provide facilities as part of the adoption service, such as other adoption agencies and adoption support agencies. The amendment first provides that regulations may enable local authorities as well as voluntary adoption agencies to charge fees for the provision of counselling services. Secondly, it provides for those fees to be regulated. Provision has already been made for adoption agencies to charge a fee in connection with the disclosure of information.

Clause 97 makes provision for regulations that would authorise the charging of fees by registered adoption support agencies, the registrar-general and adoption agencies. The amendments complete the necessary range. I beg to move.

On Question, amendment agreed to.

Clause 9 [General power to regulate adoption etc. agencies]:

Lord McIntosh of Haringey

moved Amendments Nos. 3 to 5: Page 8, line 2, leave out "support services Page 8, line 4, after "12," insert "45, Page 8, line 4, leave out "and 56 to 65" and insert ", 56 to 65 and 97

On Question, amendments agreed to.

Clause 11 [Fees]:

Lord McIntosh of Haringey

moved Amendment No. 6: Page 9, line 34, at end insert— ( ) Regulations under section 9 may prescribe the fees which may be charged by adoption agencies in respect of the provision of counselling, where the counselling is provided in connection with the disclosure of information in relation to a person's adoption.

On Question, amendment agreed to.

Clause 19 [Placing children with parental consent]:

Lord Clement-Jones

moved Amendment No. 7: Page 14, line 19, at end insert— ( ) Application may be made to the court for a declaration that the consent of a parent or guardian under subsection (1) has been validly given. ( ) The court may make an order prohibiting an adoption agency from placing a child for adoption under this section where the court is satisfied that any person mentioned in section 1(4)(f) is able and willing to care for the child. The noble Lord said: My Lords, we have debated placements and placement orders on every occasion that the Bill has come before us. As your Lordships will be well aware, the Bill currently envisages adoption agency placements being made pursuant to consent given under Clause 19 or under a placement order made under Clause 21. Placement orders cannot be made unless either the child is already subject to a care order under Section 31 of the Children Act 1989 or the court considers that the threshold condition for making a care order under that section—significant harm to the child—is satisfied.

In previous debates on the placement provisions, the Government appear to have acknowledged that there could be circumstances in which, despite the apparent consent of the parents to the proposed placement, court involvement may be necessary. The noble Baroness, Lady Howarth, came up with the best expression last time when she referred to circumstances in which there was a danger of consent being withdrawn. I drew attention to a middle way that could be inserted into the Bill in those circumstances.

However, the Government have resisted any attempt to amend the Bill to provide that there should always be a placement order. Many of our debates have centred round that. They have suggested that if an adoption agency is concerned about, for example, whether a father who does not have parental responsibility should be consulted about the plan, perhaps against the mother's wishes, it will be able to invoke the court's inherent jurisdiction to resolve the issue.

Another area of concern is where there was some question mark about the capacity of the parents to give a valid consent to placement, perhaps because of learning disability or mental health problems. Placement cannot be made without either the consent or a placement order. However, it is possible to envisage circumstances, such as those mentioned by the noble Baroness, Lady Howarth, in which, with the patient not actively opposing placement, it might be hard to satisfy the "significant harm" threshold. Nevertheless, if either the agency or the CAFCASS officer were unsure about the consent, the placement could not go ahead.

Amendment No. 7 would allow the court to become involved in two ways. First, after a judicial hearing it could make a declaration that a parent had given a valid consent, thus enabling the agency to continue with its proposed placement under Clause 19 and greatly reducing the risk that the issue might be reopened later on the hearing of the final adoption order application.

Secondly, where concerns were raised either by the agency itself or by the CAFCASS officer about the need to ascertain the views of a father without parental responsibility or another relative or relevant person such as a foster carer, the amendment would allow consideration of whether the placement should be prohibited or at least delayed pending the consideration of that parent's views.

Amendment No. 16 enables rules to be made under which the CAFCASS officer could refer to the court any concerns he or she had about either of the above matters. Clause 101 as currently drafted does not make it clear that such a referral would be possible.

In essence, the purpose of both these amendments is to ensure that there is a facility for court involvement where it is needed. I beg to move.

3.30 p.m.

Baroness Andrews

My Lords, I am grateful to the noble Lord for enabling us to address for the final time, I hope, the issue of placement by consent. He has conscientiously and thoroughly raised this issue, thereby allowing us to debate the twin-track approach to placement. These debates have been productive at each stage of our consideration and helped to clarify the issues. I should therefore like carefully to explain why these amendments do not meet our concerns.

As the noble Lord, Lord Clement-Jones. said, the amendments address two main issues. The first is how to ensure that consent to placement for adoption is given validly and properly, and the second is how to ensure that, in consents to adoption placements, the adoption agencies fully, properly and appropriately consider and involve unmarried fathers and others whom the noble Lord mentioned.

Amendment No. 7 concerns the issue of consent. Apart from baby placements under the placement for adoptions provision in Chapter 3, an adoption agency may place the child for adoption with consent if it has the consent of the parents under Clause 19. Very importantly, that consent has to be witnessed by a CAFCASS officer who is independent of the adoption agency, whose job it will be to ensure that consent is given properly and with the full understanding of the parents. We are all clear on that point. The amendment is concerned with what should happen if the CAFCASS officer does not think that the parents are able to give consent with full understanding. It has been suggested that in such circumstances the court should be able to make an order on the application of the agency or the CAFCASS officer indicating that consent has been properly given. The courts would therefore become involved.

There are various reasons why I do not think that that is the right approach. The first consideration is why consent cannot be given validly and why the parents might not be considered capable of giving consent. The officer may feel, for example, that, even after the explanation has been provided, the parents have not been fully informed and require more information, more help and more support. In such circumstances, the obvious route would be for the officer to notify the agency that it should provide further information, counselling and support. I think that that would be a relatively straightforward assessment. However, the Bill provides an answer for such cases, and the process will provide for that need to be satisfied.

The issue may not be about the lack of information but about the officer's doubts about the parents' capacity to give consent or consistency in their desire to give consent. We are concerned that the type of court declaration proposed by the amendment is not the right approach. First, we are not entirely satisfied that the amendment makes clear what type of process or hearing the court should hold to determine the issue of consent.

Secondly, the amendment raises serious issues about the next step. What can the court do if it considers that the parents are not capable of giving consent? The crucial issue is what should happen then. For example, could the court force the parents to attend so that the court itself can explore the issue and make its own judgment? If so, would the agency have to return to the court to apply for a placement order? If so, would we not end up with a two-stage process to obtain a placement order rather than a simple one-stage process?

In all logic, we should hope that the basis for the confusion about whether the parents genuinely wish to give consent—in which they might change their mind—or are capable of giving consent will be picked up at a much earlier stage. We believe that those issues should be addressed either in the adoption panel or when the agency itself becomes involved. If there is genuine doubt about the capacity to give consent, we believe that the way to resolve it would be for the CAFCASS officer not to certify the consent and to notify the agency of his concerns. Subsequently, application for a placement order can be made.

Where there is no Clause 19 consent but the agency considers that the child should be placed for adoption because the child is at risk of significant harm, Clause 21 would place the agency under a duty to apply for a placement order. Subsequently, the court would become involved and be able to decide whether the parents are capable of giving consent. Subsequently, the placement order could be made providing that the harm threshold has been met. If the court is not capable of giving consent, the placement order hearing could enable the parents' consent to be dispensed with as provided for under Clause 52(1). The child's welfare would be taken into consideration above everything else.

We are therefore convinced that the placement order provisions in Chapter 3 already provide for an appropriate court hearing to determine whether there should be a placement for adoption in cases where there is real doubt about parental capacity to give consent. We do not believe that the significant harm threshold will present an inappropriate barrier to placement. I should perhaps add that one of the reasons why we are so committed to the significant harm threshold is the necessity to be consistent with the Children Act and all the protection that it offers—a point that the agencies clearly made to us when we examined the issue one year ago. When the previous version of the Bill was published, in March, it did not include the significant harm threshold for placement orders. Many stakeholders expressed many concerns about the omission. We subsequently agreed with their judgment and have accordingly amended the Bill.

I reassure the noble Lord, Lord Clement-Jones, that we are looking for appropriate processes that will suit the condition of each family and each child. We want rapid processes, as set out in the Bill and subsequent regulations, that are consistent with the Children Act. We do not believe that the amendments offer any improvement on that.

I appreciate the second issue which the noble Lord, Lord Clement-Jones, seeks to address in his amendments—the concern to ensure that adoption agencies properly involve and consult wider family members including unmarried fathers in proceedings for placement with consent. We entirely agree with the importance of ensuring that that happens. Although I hesitate to use the word safeguard—which I know, for the noble Lord, is like a red rag to a bull—the Bill contains a considerable number of safeguards to ensure that that does happen. We resist the amendment because we do not believe that it is necessary to impose an additional safeguard, especially one offering scope for further delay and confusion.

I should explain my understanding of the changes proposed in the two amendments. When a CAFCASS officer witnesses a consent under Clause 19, he should also examine what the agency has done to consult and work with wider family members. If the CAFCASS officer is unsatisfied, he can apply to the court so that it can make an order blocking the adoptive placement, perhaps pending the agency carrying out the work. The intention of the amendments as I understand them is to provide a check on agencies to ensure that these important issues—which relate to Article 8 of the ECHR and the right to family and private life—are picked up. I think that that is absolutely right. However, I argue that the processes in the Bill and the procedures that will follow will ensure that they are picked up at an earlier stage than that proposed by the amendment.

First, all agencies will be bound by the clause to which we have often referred, Clause 1(4)(f), to consult and involve relatives, wider family members and others with a significant relationship with the child, and to consider their willingness and their capacity to care for the child. We have already made clear that the new regulations and the accompanying guidance will require those obligations to be discharged from the very beginning of the process at the point at which the agency is considering whether or not adoption is in the best interests of the child. We believe that that will be a responsive process and we intend to ensure that it is a thorough process focused on child welfare.

Secondly, we have also said that we are willing to provide in court rules a route for agencies to apply to the courts for guidance so that they do not have to rely on inherent court jurisdictions whenever they are not sure what is the appropriate action to be taken in a complex family situation. I reinforce that point again. As part of the decision-making process the adoption panel will scrutinise the agency's plan for the child. That includes, by definition, a very careful examination of whether the agency has properly explored the wider family situation. The fundamental review of adoption panels constitutes an extra safeguard to ensure that that happens. Therefore, there is a strong independent element here. Scrutiny will be undertaken before a final decision is taken that adoption is in the child's best interests. That will take place well before any CAFCASS officer becomes involved. We believe that we have to get the matter right at that stage of the process.

Thirdly, all children looked after by local authorities will come under the new independent reviewing officer system to be established under Clause 118. That system will include all children accommodated and covered by Chapter 3 of the Bill, whether they are voluntarily placed, under statement orders, actually placed with prospective adopters or simply accommodated pending placement. Each of those children will have a care plan which will have to be reviewed regularly by the authority. Independent reviewing officers will take part in every review. That is yet another independent element to make sure that the views and the needs of the child are taken into account. That process will, of course, include Article 8 rights concerning links with parents, relatives and so on. If the authority devises, or seeks to implement, a plan that breaches a child's human rights in that respect, for example, by separating him or her from wider family members, the reviewing officer will first notify the authority of his concern in the expectation that the plan will be modified to take account of it. If the authority does not do so, the reviewing officer can inform the child's parents, who can take action on the child's behalf, or he can alert CAFCASS. That is another barrier to things going wrong. All those processes would occur well before a CAFCASS officer became involved. That is not a snapshot; it is an ongoing function that can be continually reviewed.

I am going into the detail as I want to place on record the layers in the process where we hope to pick up on anything that may lead to a disaster. I hope that noble Lords are reassured that we are addressing the important concerns that the amendments raise and that they will understand why we do not think that it is necessary or proportionate to add another court process in the manner suggested.

These amendments are complex. We are aware that they raise important issues. We are impressed by the seriousness and the scrupulous attention to detail that has gone into drawing them up. I hope that my response reinforces the purpose of the Bill but also convinces the noble Lord that he can have confidence in the Bill and its processes.

3.45 p.m.

Lord Clement-Jones

My Lords, I thank the Minister for that careful reply. I appreciate the care that went into it in terms of taking us through what the Minister perceives to be the safeguards. I confess that she recounted an impressive catalogue of safeguards. However, the problem is that it does not have the final backstop, which is precisely what this set of amendments was designed to achieve.

I am slightly disappointed that the Minister appears not to have a clear idea of the procedure by which the amendments would operate as a fair degree of trouble was taken to brief the department beforehand and illustrations were given of how the process would work. Earlier, I spared the House the full catalogue of exactly how the process would work on several alternative bases depending on who took the initiative in taking the matter to court. I could recount—but I shall not do so—the precise procedure that was given to the department. Therefore, I am slightly disappointed by the Minister's lack of understanding of exactly how the process would work. The basis on which it would work is highly logical and, in my view and that of those who briefed me, it would have worked in a perfectly satisfactory way.

However, as regards the Government's placement orders scheme, it is difficult to insert a new brick in that edifice without that having perhaps unintended consequences. I believe that the Government, birth parents, CAFCASS and others will find that they do need the backstop that I mentioned. Although I am disappointed, I shall not press the amendment at this stage. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Contact]:

Baroness Andrews

moved Amendment No. 8: Page 17, line 18, leave out from "child-to end of line 19 and insert "is placed for adoption The noble Baroness said: My Lords, in moving Amendment No. 8, I wish to speak also to Amendments Nos. 9, 10 and 11. These amendments deal with baby placements. I hope that in the light of the recent disappointment of the noble Lord, Lord Clement-Jones, I can give him some better news on this group of amendments as they concern issues which he raised on Report on 14th October. We are bringing forward the amendments late but that is simply a measure of the fact that we have carefully considered the matter and have had more discussions with stakeholders about how to deal with baby placements and, in particular, with regard to the legal limbo into which the noble Lord feared some placements might fall if after the six weeks period the mother disappeared before the formal consent had been sought.

I remind noble Lords how the provisions for baby placements work. Under Clause 18 an adoption agency may place a child for adoption under six weeks old without needing either a placement order or a formal consent under Clause 19. This provision to permit placement under six weeks enables young babies to be placed for adoption even if the mother is not yet in a position to give formal consent to placement under Clause 19.

Clauses 47 and 52 provide that any consent given by the mother of a child to the making of an adoption order or to placement under Clause 19 is ineffective for the purposes of making an adoption order if it is given less than six weeks after the child's birth. As we have discussed at various stages of the Bill, that allows the mother time to recover from the birth and time to receive additional counselling to ensure that she is making the right decision for herself and the child. The noble Earl, Lord Howe, raised anxieties in that area. We hope sincerely that that will not constitute the first counselling that is offered but will constitute the final stages of counselling.

The effect of Clause 18 is that the agency may, with the parents' consent, place a child for adoption when it is under six weeks old. The process for seeking that consent will be set out in the adoption agency regulations. But in order to have a consent to placement for adoption that will be a valid basis for making a final adoption order under Clause 47(4), the agency will have to return the child to the mother after the six week period to get the formal consent.

On Report the noble Lord, Lord Clement-Jones, was concerned about the situation where a mother had given consent when the child was under six weeks old but the agency was unable to locate her. He asked what the legal status of the child would be in those circumstances. He was worried that the child would be moved to a temporary foster placement in the mean time with all the disturbance that that would involve. I reassure the noble Lord that we are clear that there would be no need for any temporary movement to foster placement. We believe that that would be undesirable and wrong; it is certainly not a requirement of the Bill. We have taken advice and worked through the issue. We are satisfied that, in the light of the work we have done, the status of the placement in legal terms would be that the child would still count as placed for adoption under the Bill after the six-week period. There would be no need for any temporary foster placement. Once a child had been placed for adoption under the Bill, the child remains in law placed for adoption unless something happens to change that situation—for example, if the agency or the parents seek to withdraw the child from the placement.

We hope that there will be very few situations in which a mother consents to a baby under six weeks being placed and then disappears entirely. It is hard to imagine the tragedy that that would involve. It would mean that the agency was never able to obtain a formal consent under Clause 19. However, there would be nothing to stop the adoptive placement proceeding as an agency placement all the way through to the making of the final adoption order. The difference would be that, rather than the final adoption order being made under the second condition in Clause 47(4) on the basis of a valid Clause 19 consent to placement, the adoption order would have to be made under the first condition in Clause 47, with parental consent or with that consent having been dispensed with. I hope that that reassures the noble Lord that the legal situation is watertight. The detailed examination prompted by his question uncovered a couple of matters in relation to which we wanted to put the position beyond doubt. That is what our amendments will do.

The amendments provide that where a child under six weeks old has been placed for adoption but after the six weeks the agency does not yet have authorisation under Clause 19, the rules for removal set out in Chapter 3 of the Bill still apply. Only the adoption agency may remove the child from the placement. However, the mother or parent can request the return of the child at any time. The child must be returned within seven days, the only exception being where the local authority applies for a placement order.

The second area in which we are proposing changes is in relation to contact. The effect of the amendments is to ensure that the provisions for placement contact orders in Clauses 26 and 27 cover baby placements which begin when the child is under six weeks but continue after that point without a Clause 19 consent being obtained. In view of the importance of sibling contact, we are doing that in order to ensure that siblings and other relatives who wished to apply for contact were able to make use of the contact provisions and that they would not be shut out from the very early weeks of a child's life, especially if there was any gap period between the six weeks and the giving of the formal Clause 19 consent. That is obviously important to grandparents. The amendments aim to make it crystal clear that the benefits of the placement provisions in terms of rights of return and access to contact apply in any gap between the six-week period and formal consent being given under Clause 19.

I hope that the noble Lord feels that we have addressed the concern that he raised. We have taken very seriously the need to be absolutely clear in law. I hope that he agrees that the amendments provide a clear legal status for those babies after the six-week period. I beg to move.

On Question, amendment agreed to.

Clause 27 [Contact: supplementary]:

Baroness Andrews

moved Amendment No. 9: Page 18, line 7, leave out "less than six weeks old" and insert "placed for adoption On Question, amendment agreed to.

Clause 30 [General prohibitions on removal]:

Baroness Andrews

moved Amendment No. 10: Page 20, line 8, leave out paragraph (b) and insert— (b) a child is placed for adoption by an adoption agency and either the child is less than six weeks old or the agency has at no time been authorised to place the child for adoption, On Question, amendment agreed to.

Clause 31 [Recovery by parent etc. where child not placed or is a baby]:

Baroness Andrews

moved Amendment No. 11: Page 21, line 9, leave out paragraph (a) and insert— (a) a child is placed for adoption by an adoption agency and either the child is less than six weeks old or the agency has at no time been authorised to place the child for adoption, and

On Question, amendment agreed to.

Clause 42 [Child to live with adopters before application]:

Earl Howe

moved Amendment No. 12: Page 27, line 35, leave out from "them" to "preceding" in line 36 and insert "at all times during the period of six months The noble Earl said: My Lords, this amendment, which I also tabled on Report, is designed to highlight my concerns about the procedures that are proposed to apply to non-convention intercountry adoptions. My understanding, which the Minister confirmed on Report, is that where an adoption application to a UK court is required, unless it relates to a convention adoption, the child must have had his or her home with the applicant for three years out of a five-year period prior to the application being made. As I read it, that is a change to the position provided for under the Adoption Act 1976, as modified by the Adoption (Intercountry Aspects) Act 1999. In my opinion, that is a change for the worse. Requiring children to have to wait for more than three years for their legal position to be secured cannot possibly be in their best interests.

As I said in our earlier debate, many countries of origin are likely to balk at provisions which are obviously out of step with those that rightly apply to domestic adoptions. The Minister indicated to me that the draft intercountry adoption regulations have recently been the subject of consultation, particularly in the context of our obligations under The Hague convention. She kindly said that she would include in her and her department's deliberations the issue of what the appropriate residence period should be for relative intercountry adoptions. That was a welcome assurance.

However, as I said, there is a wider concern. This issue does not relate simply to relative intercountry adoptions. Although Clause 42(6) allows for an adoption application to be made sooner than normal if the court approves, the Minister said that that provision would be invoked only in cases that were considered to be of an exceptional nature. I do not believe that that covers the concern that I raised on Report and which I raise again. It is an unnecessary hurdle, apart from being a drain on court time.

The amendment, if agreed to, would specify the same six-month period before which an adoption order may be granted in respect of all intercountry adoptions, regardless of whether they are convention designated or non-convention non-designated adoptions. I hope that the Minister will provide me with some reassurance on those issues.

I do not wish to anticipate what the Minister may say about government Amendment No. 15, which is grouped with this amendment. He will know, I am sure, that it has been commented on by the Delegated Powers and Regulatory Reform Committee. I hope that the Government will take those comments into account. I beg to move.

4 p.m.

Lord McIntosh of Haringey

My Lords, I should begin by apologising to the House for the late tabling of the government amendments. The period between Report and Third Reading is very short but we tabled them later than we would normally like. We wanted to get this important and complex issue right.

I turn to the amendments relating to the time that the child should live with the adopters. I believe and hope that the amendments that I have tabled, at least with regard to their regulation-making powers, deal with the concerns raised in relation to Amendment No. 12, to which the noble Earl, Lord Howe, has just spoken. As he said, my noble friend Lady Andrews outlined on Report the current position under the Bill and explained that we would return to the issue of the time that the child should live with adopters in intercountry cases following further consideration.

Under Section 13 of the Adoption Act 1976 where the applicant is a parent, step-parent or relative of the child or the child was placed by an adoption agency or in pursuance of an order of the High Court, the child must live with the applicants for 13 weeks before the adoption order can be made. In cases of intercountry adoption, which are not agency placements, the child must live with the applicants for 12 months.

Under the Bill the residence periods are set out in Clause 42. For non-agency placements which are not provided for elsewhere in Clause 42, the residence period is three out of the previous five years. That is the provision to which the noble Earl, Lord Howe, objects. However, we have taken a power in Clause 83(6)(a) to enable regulations to provide that provisions in Chapter 3 of the Bill, including Clause 42, apply with modification or do not apply to children brought in under Clause 83. It is our intention to use the power to provide that the child must live with the applicants for six months where the correct procedures have been followed and 12 months where they have not. Where Clause 83 does not apply, the standard residence periods set out in Clause 42 will apply.

However, it is intended that Clause 83 will apply to all but a very limited group of people. The exceptions are likely to be, for example, parents in prescribed circumstances. Under Clause 42, the residence period for parents is 10 weeks. Therefore, in the vast majority of cases of intercountry adoption, the time that the child has to live with the adopters will be set out in regulations as six months where the appropriate procedures have been followed, as envisaged by Amendment No. 12.

This group of amendments is intended to make clear the residence periods that should apply in relation to convention adoptions. It is also intended to ensure that the same modification powers are available for the early implementation of the restrictions on intercountry adoption.

In summary, in relation to intercountry adoption, wherever the correct procedures have been followed, we intend that the child should live with the adopters for six months. That should ensure that children have time to adjust and settle with their new families and that the local authority is able to monitor the placement satisfactorily prior to the court making the order. Where the correct procedures have not been followed, we intend that the child should be required to live with the adopters for a minimum of 12 months in order to allow the child to settle with his new family and in order for the local authority fully to assess the family in lieu of the checks that would have taken place before the child went to live with the family.

I turn to the amendments which deal with the question of to whom the provisions on intercountry adoption should apply. We have received representations from intercountry adoption stakeholder groups expressing concern about intercountry adoption by relatives. They have suggested that, at present, the welfare of the child is not paramount because it is treated predominantly as an immigration rather than an adoption issue. They have raised concerns about the lack of preparation of relatives who adopt from overseas and the fact that the suitability of relatives to adopt is not assessed unless the child's home country requires it. They have made clear that that means that we cannot be sure that those relatives will provide a safe, secure environment for the child. We have listened carefully to the issues raised by the stakeholder groups and believe that we need to address that important matter.

Clauses 83, 85 and 134, the transitional provision in paragraph 11 of Schedule 4 and Section 56 of the Adoption Act 1976 place restrictions on the circumstances in which children may be brought into or taken out of the United Kingdom for the purposes of adoption. At present, those restrictions include the requirement for a person wishing to bring a child into the country for the purpose of adoption to be assessed and approved by an adoption agency and for a person wishing to take a child out of the country for the purpose of adoption to be in receipt of an order permitting that. However, those safeguards do not apply when the prospective adopters are the child's natural parents, natural relatives, guardians or step-parents.

In the light of the concerns raised about that lack of safeguards, we have returned to the case for exempting those groups and have decided that something must be done to address the matter. The approach that we have taken through the amendments is to remove the specific exemption of parents, guardians, relatives and step-parents from the provisions which set out the restrictions. Then, in each case, a regulation-making power has been taken to enable us to prescribe that the provisions setting out restrictions on bringing in or removing a child are not to apply—or, where necessary, to apply with modification—to parents, relatives and step-parents. That reflects the need to be flexible and to be careful that we do not impose the restrictions inappropriately.

Using regulation-making powers will provide the necessary flexibility to react to changing circumstances. Through experience and discussions with other countries, it may become clear that it would not be appropriate to include certain groups in the restrictions. Therefore, we shall consult, and the use of regulations will allow us to respond.

Amendments Nos. 13 to 15 deal with the position under the Bill. Amendments Nos. 30 to 33 deal with the position under the Adoption (Scotland) Act 1978, and Amendments Nos. 41 to 44 deal with the position under the Adoption Act 1976. Before I leave Amendment No. 15, perhaps I may say that we have received the opinion of the Delegated Powers and Regulatory Reform Committee. Clearly it is impossible to do anything about it this afternoon but I anticipate that, when this amendment goes to the House of Commons, we shall seek to bring forward other amendments to give effect to the committee's proposal that the regulation-making powers should be affirmative in the first instance and negative on subsequent occasions.

Because the amendments remove the explicit exemption of parents, guardians, relatives and stepparents from the restrictions, that gives us additional powers in relation to residence periods. It means that we shall be able to use the regulation-making powers in Clause 83, in the Adoption (Scotland) Act 1978 and in new Section 56A of the Adoption Act 1976 to make regulations to specify the time that a child must live with a parent, relative, guardian or step-parent in intercountry adoption cases.

These are detailed amendments, but our intention is clear. We intend to ensure that children who are adopted from overseas by parents, relatives, guardians and step-parents are properly safeguarded. We recognise that such children are potentially vulnerable, that they need to be protected and that their relatives may well need the same assessment of their suitability and/or help to prepare for adoption as would be the case in relation to a stranger planning to adopt a child from overseas.

However, we are also clear that we do not want to impose unworkable restrictions and that we need to take the advice of those working in the field as to any groups that should legitimately be excluded. That is why we have taken care to include in the amendments regulation-making powers that provide the necessary flexibility to react to experience, changes in practice and the views of professionals.

I hope that, on that basis, the House will accept that the amendments that we have tabled address the concerns behind Amendment No. 12 as well as the other matters that I addressed in introducing them.

Lord Clement-Jones

My Lords, before the Minister sits down, I wonder whether he could be absolutely clear about the commitment that he gave regarding Amendment No. 15. He said that he imagined that the Government would seek to amend the amendment when it went to the Commons. Will he give a commitment that, through the usual channels with the other place, he will ensure that it meets the requirements of the Delegated Powers and Regulatory Reform Committee?

Lord McIntosh of Haringey

My Lords, clearly I cannot give a guarantee as to what the House of Commons will do. I cannot imagine that that will not be the case. That is what we propose to do.

Earl Howe

My Lords, I very much welcome the thought devoted to this issue by the Minister and his colleagues and, indeed, by his department, and I welcome the assurances that he has given today. I am extremely grateful. I believe that the Government's amendments have addressed in very large measure the concerns that I raised. I also greatly welcome the modifications that the Government have proposed to Clauses 83 and 85. I consider that they represent an improvement to the Bill.

In general, I want to place on the record how much we on these Benches appreciate the willingness shown by the Government throughout our deliberations on the Bill to respond positively to the concerns raised from around your Lordships' House. I believe that this has been a very constructive series of debates. We have a better Bill as a result of those debates, and I believe that all noble Lords share my appreciation of what Ministers have done. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 [Restriction on bringing children in]:

Lord McIntosh of Haringey

moved Amendment No. 13: Page 47. line 17, leave out paragraphs (a) and (b). The noble Lord said: My Lords, with gratitude to the noble Earl, Lord Howe, for his remarks, I beg to move.

On Question, amendment agreed to.

Clause 85 [Restriction on taking children out]:

Lord McIntosh of Haringey

moved Amendment No. 14: Page 48, line 41, leave out from beginning to "adopters" in line 1 on page 49 and insert— ( ) the prospective

On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendment No. 15: After Clause 85, insert the following new clause— "POWER TO MODIFY SECTIONS 83 AND 85 (1) Regulations may provide for section 83 not to apply if—

  1. (a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or
  2. (b) the British resident in question is a step-parent of the child,
and any prescribed conditions are met. (2) Regulations may provide for section 85(1) to apply with modifications, or not to apply, if—
  1. (a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or
  2. (b) the prospective adopter is a step-parent of the child, and any prescribed conditions are met.
(3) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the Assembly.

On Question, amendment agreed to.

Clause 101 [Officers of the Service]:

[Amendment No. 16 not moved.]

Lord Clement-Jones

moved Amendment No. 17: After Clause 111, insert the following new clause— "POWER OF COURT AND PARENTAL CONTACT (1) In section 10(4)(a) of the 1989 Act (power of court to make section 8 orders), after "parent," leave out "or guardian". (2) In section 34(3) of the 1989 Act (parental contact etc. with children in care), after paragraph (a) insert— (aa) a relative;". The noble Lord said: My Lords, I feel sweetness and light are clearly breaking across the House. However, we still have a few amendments to deal with today. I am confident that the Government will give them a favourable passage. Perhaps those are famous last words.

I probably succeeded again in confusing the Lord Chancellor's Department with the amendments. They appear to have been again put on the Marshalled List in truncated form. I hope that the department will be able to respond despite the fact that the amendments are somewhat flawed. Clearly I shall be interested to hear whether the Government accept the logic stated previously by these Benches.

On Report, the Government introduced an amendment to the effect that relatives may apply under Clause 26 for contact with a child whom the agency is authorised to place for adoption. It removes the earlier requirement that relatives needed to apply for leave first before making such an application. It should be mirrored in the case of special guardianship.

The amendment addresses what has become a rather illogical situation. Relatives seeking contact with a child placed for adoption do not need to apply for leave to apply for contact. However, the same people seeking contact with a child in accommodation or care need to do so. There is no obvious rationale for retaining that differentiation. Relatives are generally successful when they apply for leave making the leave stage arguably an unnecessary use of the courts' time. If their application is, in rare cases, inappropriate there is already a mechanism in Section 91 of the Children Act to restrict future applications. It is surely time to raise the presumption that they may apply for contact unless they need to be restricted from doing so rather than vice versa. I beg to move.

Lord Hunt of Kings Heath

My Lords, first, I reassure the noble Lord that, although there is a problem with the drafting, I fully understand what he seeks to do. The amendment seeks to permit relatives to apply for Section 8 orders for contact with children in care without the leave of the court.

The leave requirement is intended to ensure in the context of Sections 10 and 34 of the Children Act that applications concerning children are made by those who have a genuine interest in the upbringing of the child. In practice, leave is nearly always granted for relatives. The application for leave should be filed at the same time as the application and one fee is taken. So relatives should see little difference in practice whether or not leave is required.

There is a concern about accepting the amendment for two reasons. One is the definition of "relative" as in Clause 145. This is broad and includes, a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood", or by affinity or step parent. Many of those relatives will have taken an active interest in the upbringing of the child and should have no difficulty in obtaining leave. But some of those caught under the definition may have had little relationship with the child and in those cases there may be a real question as to whether court proceedings are in the best interests of the child.

We think that the existing position is best preserved. We must see these arrangements from the perspective of the child and what is best for him or her, particularly where those children have already suffered abuse within the family.

I understand the noble Lord's point. He points to the distinction between the amendment in relation to placement contact orders so far as concerns adoption and the wider issue he raises. I understand that the two situations are different. Section 8 contact orders are for use in a wide range of situations including for contact with children in family situations where the child is neither in care nor subject to any court order. In those normal family situations there is no legal barrier to contact with the relatives. Where contact orders are sought, therefore, it is likely to be where there is dispute about contact. In that case, we believe that it is appropriate in the interests of the child that the leave requirement be in place as a screening process, as I have already suggested.

In contrast, a child placed for adoption is under a totally different situation. The end objective is separation from his or her family. The child is not in a normal family situation. He is under the supervision of the adoption agency which will oversee any kind of contact. There is no presumption of contact with those persons. There is already a filter for contact in adoption placements because the adoption agency looks after the child's interests. But we did still want to allow for relatives to apply to courts for contact if they were unable to secure it through the agency. That is why we have allowed them to apply for Clause 26 contact orders and why there is no leave requirement in that situation.

I hope that the noble Lord accepts that there is a valid distinction. However, the Government recognise that some relatives—we think in particular of grandparents and siblings—may have genuine concerns about whether the leave requirement imposes a barrier against an application even if, as our experience suggests, the concern is more perceived than real.

I place on record, therefore, that the Government are considering what changes to guidance and secondary legislation may be necessary to ensure that the application for leave process is as simple as possible and that there are no barriers, real or otherwise, to a concerned relative making an application for the benefit of the child.

We believe that it is right for there to be a distinction. But we are willing to look at the practical circumstances to see whether, through regulations, there is a case for streamlining the application for leave.

4.15 p.m.

Lord Clement-Jones

My Lords, I am grateful to the Minister for that reply. He makes an interesting distinction. With a child in care there may well be a dispute surrounding the child and, therefore, there is a need for a slightly different pattern than in circumstances where the adoption agency has an overview under Clause 26. That was helpful. His undertaking to see whether the guidance can clear away some of the barriers associated with applying for leave was also helpful. It would be helpful if consultation and discussion were to take place between stakeholder organisations and the department. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. [Amendments Nos. 18 and 19 not moved.]

Clause 115 [Special guardianship]:

Lord Clement-Jones

moved Amendment No. 20: Page 66, line 20, at end insert— ( ) a birth parent; The noble Lord said: My Lords, Amendment No. 105, debated on a previous occasion, was a similar amendment.

There has been considerable debate in Committee and on Report on the special guardianship provisions. Your Lordships are aware that on these Benches we had two problems with the special guardianship provisions. The duty on the local authority to provide an assessment was dealt with by a tied vote on Report and, therefore, will not be raised again. The second issue related to birth parents not being included specifically in the list of people who may request support services.

The effect of the special guardianship order is to exclude the parent from decision making about the child. It is also anticipated that some form of contact is likely in most cases. We believe that it is essential that the parent has the right to an assessment of their need for support services—otherwise, the provision of support may be lop-sided—or at least, even if parents do not have the right, that they are included in the list of prescribed persons. Therefore, the parent should have help to adjust to the new arrangements.

Although the noble Lord, Lord Hunt of Kings Heath, confirmed in Grand Committee, at col. CWH 356, that birth parents may well be included in the list of those within the "prescribed description" who may ask for support, we suggest on these Benches that this right to request support should be contained in the primary legislation, otherwise it is likely that local authorities will give it a low priority. I beg to move.

Baroness Noakes

My Lords, we considered this matter on Report. At that stage I said—and I repeat—that because such a guardianship does not sever the legal relationship between the parent and the child, the birth parents have important interests that need to be looked after in the interests of the child. Therefore, the inclusion of birth parents within those categories of persons who can request a needs assessment is an important element, not only for the birth parents but for the child. I hope that the Minister will be able to respond even more positively than he did on Report in this respect.

Lord Hunt of Kings Heath

My Lords, I always attempt to respond positively. As noble Lords will know, when we previously discussed the matter I informed the House that we already had the ability to use the power in subsection 3(c) to prescribe other people who may be assessed, which would be a means of including birth parents.

However, I am sympathetic to the intention, which I think provides a signal in the legislation that we anticipate that birth parents are likely to be key recipients of special guardianship support services. Alas, the noble Lord's amendment is technically flawed. The reference to a birth parent causes some difficulty because that is not defined in the Children Act.

Therefore, in the spirit of understanding and good fellowship in this Bill—which I think we have all enjoyed—I suggest that the House passes the amendment and we shall seek to make a minor amendment in another place in order to make the provision technically correct.

Lord Clement-Jones

My Lords, I cannot refuse an offer such as that. I am deeply grateful to the Minister for his "charity"—if I may put it that way. I thank the Minister for his remarks. Many people will be extremely happy with that reply, and not just noble Lords on these Benches.

On Question, amendment agreed to.

Clause 116 [Accommodation of children in need etc.]:

Lord Clement-Jones

moved Amendment No. 21: Page 68, line 20, after "accommodation" insert "with their families The noble Lord said: My Lords, in moving Amendment No. 21, I shall speak also to Amendment No. 22. The amendment to Section 17 of the Children Act 1989 in Clause 114 of the Bill is welcome in so far as it confirms the power of local authorities to provide accommodation for children with their families under Section 17.

Such confirmation is urgently needed because the law has become confused on that point as a result of contradictory decisions in three Court of Appeal cases. We discussed them at some length last time. All three cases are now subject to appeal to the House of Lords. If an amendment to this effect is not made, we must await a decision by the House of Lords on those cases. If its decision does not allow for families to be provided with accommodation under Section 17, the opportunity for sorting out the problem will remain unresolved for the foreseeable future.

However, despite the general support for the principle behind the amendment, there is widespread concern that the proposed amendment to Section 17, coupled with the amendment to Section 22 of the Children Act, legitimises the current local authority practice of providing accommodation—for example, bed and breakfast placements—for children and young people in need without a parent or other person with parental responsibility under Section 17 of the Act, instead of accommodation provided by Section 20 of the Act, even when there appears to be a clear duty to do so.

Secondly, removing the status of the "looked-after" child from this group also removes the duty of local authorities to safeguard and promote their welfare, to consult with them about actions that affect them, and to comply with the regulations designed to ensure that placements are safe and suitable. That undermines many of the commitments made as a result ofPeople Like Us.

Thirdly, the amendment contains no lower age limit. Technically it could be used to validate the placement of children of any age.

Lastly, there is evidence to suggest that local authorities are already using Section 17 of the Children Act to provide accommodation to asylum seeker children. It appears that the Government do not disapprove of this action in principle; I quoted last time from the letter from the noble Lord, Lord Hunt, to the noble Baroness, Lady David, dated 5th August. If that practice persists in relation to asylum seeking children it could be a breach, as mentioned on Report, of Article 2 of the United Nations Convention on the Rights of the Child—the right to equal treatment.

The crucial disadvantage to this practice is that under Section 17 the local authority are not subject to the duties in Sections 22,23 and 24 of the Children Act and the associated regulations, which prescribe the duties of social services departments in respect of "looked-after" children, including the duty to review their case and/or apply the leading care provisions.

If a young person is accommodated under Section 20, this additional support is mandatory, depending on the assessed need. There cannot be many children or young people out there who need accommodation because they are no longer able to live with their families, yet do not need the support and protection laid down in these sections of the Act. For example, they may need advice and support to apply for welfare benefits to which they are entitled, and/or they may need someone to enter into a contract on their behalf, as children do not have contractual capacity. 11 they are accommodated under Section 20, and therefore have "looked-after" status under Section 22, they will have a social worker who will deal with such matters for them; if they are accommodated under Section 17, they will not. We question which children, who cannot live at home, would never have a potential need for this kind of support.

It would be unwelcome if the Government's amendment, as we mentioned on Report. was interpreted by local authorities as giving official approval to a practice which is unlikely to meet the young person's needs, and which may well leave him or her exposed to a significant degree of harm.

On Report, the noble Baroness, Lady Andrews, outlined that it was not necessary to curtail the power of the local authority to provide accommodation for lone children under Section 17 to ensure good practice because, first, the framework for the assessment document would ensure that the child's needs were fully explored. We disagree with that because many young people who present to social services in need of urgent accommodation, for whatever reason, may he given short-term accommodation in bed and breakfast and may never be subject to a full care assessment. Who will press the local authority to complete this task if there is no one looking out for the child's interests?

Children who have been in care for 10 to 12 years may resist "being taken into care" and the consequent loss of independence, because they want to make a life for themselves. With the greatest of respect to the Minister, such children would not be "taken into care" because they would already be "looked-after" by the local authority if they were still "in care". If they were not, they would be eligible as care leavers for leaving care support, including accommodation under Section 24, as amended by Clause 114.

The other argument is that children who had not previously been looked after, might not want to be "looked-after", with all that that entails, if all they really want is housing because they have left home. However, in our view they remain children in law for whom someone needs to be responsible. If the parents cannot be, for whatever reason, the state must. The framework for accommodation under Section 17 does not provide for that, but under Section 20 it does.

Where any such children are ready to move to semi-independent living with a need for only minimal, additional support, the possibilities for placement of looked-after children under Section 23 are sufficiently wide to enable the local authority to place them in "independent" living arrangements—for example, supported lodgings—while they are still looked after, so that the child is not left without formal protection; and, more specifically, has a named person to contact should he have need of advice and support. Once such children cease to be minors, they would be eligible for aftercare support under Section 24. However, the same would not be available if the accommodation is provided under Section 17.

Noble Lords on these Benches are concerned that the potential risks to many children opened up by the possibility of accommodation for lone children under Section 17 outweigh the potential advantages for a few independent children who, recently estranged from home, may prefer not to be received into accommodation. The key point is that if they are provided with housing under Section 17 rather than Section 20, no one will be responsible for protecting their welfare. As the largest group that is likely to be affected is asylum-seeking children, this may have disastrous consequences for an already vulnerable group of children. It cannot be right that the law fails to protect them, and even potentially discriminates against them, in this way.

Our amendment is intended to find the right balance between respecting the needs and wishes of children who are ready for independent living and ensuring that those who cannot live in their family environment for whatever reason are adequately protected. It clarifies that local authorities can provide accommodation for children with their families under Section 17, but prevents the local authority from housing children alone without social work support, as this would derogate from their responsibilities as a corporate partner.

I very much hope that this amendment receives widespread support in the House today and that, whether or not it is passed, the Government will assure us that they share the concerns about the practice and will issue strong guidance to local authorities. I beg to move.

4.30 p.m.

Lord Northbourne

My Lords, I broadly support the thrust of this amendment.

Baroness David

My Lords, I believe that we still have a problem here. It is a matter that I raised previously. I hope, therefore, that the Minister will give a sympathetic response.

Baroness Andrews

My Lords, I am not sure that I can be quite as brief as the two previous speakers, but I shall do my very best. I am well aware of the situation as outlined by the noble Lord. As we debate these issues today, I am reminded that we discussed them in almost identical terms last week. The noble Lord and I have different views on the weighting as regards the question of balance about who we protect and what cost is incurred to others who may fall outside that band of protection.

I shall begin by reassuring the noble Lord that we entirely agree with the spirit of this amendment, and of the consequential amendment to Section 22 of the Children Act. We endorse the approach that children are best helped within their family. However, the amendments present a major problem; namely, one of balance between care and concern for children whose options will be reduced rather than addressed by what the noble Lord seeks to achieve. Perhaps I may offer the House an explanation.

During our previous debate, I sought to make four points. First, I sought to reassure the noble Lord that the amendments that had been made on Report in another place were precisely necessary to clarify beyond doubt the power of local authorities to provide accommodation for young people under Section 17 of the 1989 Act. That addresses the confusion raised by the state of case law. Secondly, I tried to reassure the noble Lord that Section 17, as amended, was not a licence for local authorities to avoid their responsibilities to provide for children who should have the protection of being looked after. I reiterate and emphasise the latter, because that is certainly the burden of what we believe. We do not want to see avoidance of Section 20. We want to see children being given the accommodation that is right for their age, for their condition, and for their needs.

Thirdly, I sought to explain that, if the amendment succeeded, the pendulum would swing to the other extreme and there would be no avenue open to local authorities under the Children Act, other than taking children into care. Fourthly, we tried to explain that the amendment, as drafted, would have a negative knock-on effect, because it would make it impossible for young people to be provided with accommodation on their own. I understand what the noble Lord said regarding 16 and 17 year-olds, but we must recognise that there are some youngsters of that age who may possibly have spent their lives in care, or who may, for whatever reason, be excluded from the family home with no other relatives or friends with whom they can share homes, for whom this flexible form of accommodation available to the under-17s is most important.

I wish I could reassure the noble Lord on the most important point; namely, that there is a very positive and critical role for the framework as regards the assessment of children in need, and their families, as the basis for determining the sort of accommodation that is thought right for each child. The whole burden of the framework is addressed to the individual needs of the child and to the care that must be taken to assess the parenting capacity, the needs of the child, and the social and environmental situation in which they are growing up.

The noble Lord has reiterated and extended his concerns as regards asylum seekers. He also raised the question of age limits, with which I shall deal shortly. However, I hope that our original responses were reinforced in a letter sent to noble Lords that went into some detail on those points. Although I can assure the noble Lord that we have reconsidered the matter, I am afraid that our arguments have not changed in the week that has just passed, because the situation, as we see it, has not changed.

In the letter we sought to reassure the noble Lord, and the noble Earl, who is not now in his place, and addressed the issues that arose following concerns that Section 17 might have the effect of separating families, and those relating to the Home Office's Nationality, Immigration and Asylum Bill, which deals with such matters as failed asylum seekers who do not comply with removal restrictions, or those who apply for asylum late. I can assure noble Lords that Section 17 not only complies with Article 8 of the European Convention on Human Rights, but also enables local authorities to accommodate families together who might otherwise be split up. It provides greater flexibility and choice of provision.

In addition to the fact that Home Office Ministers will have taken advice about compliance with the ECHR, Section 17(3) of the Children Act 1989 states that services, may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare". Again, I should stress that there is nothing in the existing law that prevents a family being accommodated. All the choices that the noble Lord addressed are possible. There is nothing in the legislation, as amended by this clause, that implies, or impels, the separation of children from their families. Therefore, the proposed amendment duplicates what is already possible with regards to accommodation.

The noble Lord raised the question of the lower age limit. It is worth reflecting that Section 20 of the Children Act specifies that looked-after provision must be made for children under the age of 16. It is very unlikely, for example, that a child of 13 would not be accommodated as a looked-after child. We must trust agencies to make the right decisions in that regard. However, the real point here relates to 16 and 17 year-olds who have a very individual notion of what constitutes the right thing for themselves, many of whom are seeking independence.

During the debate on Report, the noble Lord raised the concern that differential treatment of children might bring about a breach of Article 2 of the United Nations Convention on the Rights of the Child—the right to equal treatment. Again, I reassure the noble Lord that the obligations that we have set out relating to the assessment framework, to which there is a specific reference, are the same for local children as for asylum-seeking children. Asylum-seeking children will not be disadvantaged; they must be treated the same as children born in the United Kingdom; otherwise, Article 2 issues may arise.

I return to the framework and the emphasis that it places on the wishes and feelings of young people. We do not believe that it would be helpful to restrict the ways in which local authorities can provide help. Our amendments to Section 17 of the Children Act 1989 are designed precisely to clarify that those choices shall be available.

If accommodation under Section 17 were not available, young people could only be provided with accommodation under Section 20. In consequence, they would have to be designated as looked-after children. That is the real problem for children at that transitional age. That is why we were careful in another place to include the specific and consequential amendment to Section 22. That ensures that providing accommodation under Section 17 does not mean that a child became looked-after. Amendment No. 22, the consequential amendment, reinforces Amendment No. 21, so the answer to it must be the same. It causes the same problems.

Let me explain briefly what removing local authorities' ability to choose to provide that intermediate form of accommodation means. At present, given the lack of certainty caused by case law, the Local Government Act 2000 enables local authorities to provide help with finding and/or funding accommodation, rather than providing accommodation themselves. Although that is indeed one route for a young person who is capable of operating independently, the local authorities' problem is that they often cannot find landlords who are willing to take on such young people.

So if providing accommodation becomes a problem, helping young people with finding accommodation or with funding it is obviously easier. By restoring the provision in Section 17, we want to ensure that councils have greater flexibility to use their own accommodation when suitable. I should also point out that councils' reliance on bed-and-breakfast accommodation—which is dreadful and inappropriate accommodation that can often put children at risk—becomes less likely if councils have the flexibility to use their own accommodation. So that is a positive response. We hope also by providing accommodation to stop some of the drift and even disappearance of some young people.

The noble Lord, Lord Clement-Jones, also raised the issue of practice and to what extent we could guarantee that practice would be appropriate. Each child who is assessed under the framework may or may not need to be put into care or to become looked after. In the framework for assessment, the determining factor is what is right for that child. The social workers responsible for the child will be responsible for that decision.

When we announced increased funding for social services for children, which is the source of funding for assessment, we also made it clear that we would not be doing so unless we thought that we could guarantee better performance on councils' part. That is the condition attached. Not only do we have in place in-year monitoring as part of comprehensive performance assessment; we are working with all of the key interest groups to develop it further.

I hope that I have been able to reassure the noble Lord, Lord Clement-Jones, that we understand his concerns. The amendment would cause more problems than it would solve. A combination of Section 17 with the options in place under the framework for assessment will help to solve the problem.

Lord Clement-Jones

My Lords, before the Minister sits down, what she said is in many ways extremely illuminating, but what guidance will incorporate the considerations that she has just discussed? That cannot be done simply by performance management, can it?

Baroness Andrews

My Lords, I do not want to mislead the noble Lord. I shall take advice on that and write to him. I shall provide the precise information for him and for the rest of the House.

Lord Clement-Jones

My Lords, I thank the Minister for that. I also thank her for taking considerable trouble to take us all through the considerations that apply, the different sections of the Act, how they can be used and the intention behind the amendments to Section 17. However, as she is well aware, we on these Benches are fearful, especially in the context of children who are asylum seekers, about what will be the impact of the ability to use Section 17. Simply relying on the framework for assessment or performance management in the manner that she described is inadequate.

We are at Third Reading; we are late down the road on this matter; but the Minister still cannot tell me whether guidance may be issued about the precise use of those sections and how they interplay. I can well understand the need for flexibility but, given how the Act works, children being looked after do not constitute an onerous burden—certainly not equivalent to that of children being in care. If children have been in care, after 16 they can be accommodated under Section 24. If they are younger than 16, they really should be looked after.

I am in a difficult position here, but I hope that the Minister can prevail on her ministerial colleagues and on her department to issue guidance on that matter. It would not be right to press the amendment now, but I hope that she will use her best efforts to ensure that the interlocking of those different sections is well understood by local authorities—or at least that there is a sporting chance that they are understood.

Baroness Andrews

My Lords, I assure the noble Lord that we shall give the matter serious consideration.

Lord Clement-Jones

My Lords, I thank the Minister for that positive reply. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved]

4.45 p.m.

Clause 119 [Advocacy services]:

The Earl of Listowel

moved Amendment No. 23: Page 71, line 8, at end insert— (6) In making arrangements under this section, the local authority shall have regard to the principle that the child or young person should be offered the assistance of a representative of their choice; and this shall include the right to have an independent advocate, who shall be, as far as is practicable, independent of the local authority which is responsible for the child or any person who is involved in the investigation or adjudication of any representation under section 26 by or on behalf of the child or young person." The noble Earl said: My Lords, the effect of my amendment is to ensure that advocacy services for children in care and care leavers should as far as possible be out of house—independent of the local authority. The amendment allows local authorities the flexibility that the Minister is so concerned to give them. They are urged only to, have regard to the principle", that a fully independent advocate should be provided. If there is no such service locally, the local authority is not bound to avail itself of one.

It is vital that children in care and care leavers have an option—a choice of someone to advocate for them who will put their interests first. With respect to the Minister, it is not good enough for advocates to have considerations other than the interests of the child. It is not good enough that such people should be employed by the same local authority in which the child is in care, or from whose care it has come—even if that employer is at some remove from the child. Someone whose promotion may depend on his relationship with that local authority is someone whose interests are closely involved with the authority.

Out-of-house arrangements are not absolutely independent. They are normally local authority-funded. However, such agencies have been known to pursue their concerns about a young person without remuneration. They do not suffer from many of the same conflicts of interests as do local authority employees.

I regret that my amendment is poorly worded. I apologise for that; my legal adviser is currently abroad. But I hope that the Minister will find the spirit of my amendment acceptable.

Advocacy services for children, introduced to legislation for the first time in the Bill, are an important step forward. I, and all those involved in the field, appreciate the efforts of the Minister and Government in this area. However, I regret to say that the services will be flawed if there is not the vital sufficiency of independence; otherwise, I am concerned that the proposals will fail to fulfil their potential. I beg to move.

Baroness Howarth of Breckland

My Lords, throughout the debate, on all sides there has been a real commitment to listening to children and a deep concern for their welfare. The noble Earl, Lord Howe, expressed that earlier. Indeed, the inclusion of the clause, which has been widely welcomed, is a reflection of how the Government have responded to troubled children who need help to speak out about their care and concerns. Therefore, in supporting my noble friend's amendment, I want to acknowledge how far we have come and also to encourage the Minister to take what might be one further small step for the Government but a leap for the rights of children.

My personal links through Childline and the National Youth Advocacy Scheme have given me the opportunity to hear directly from many young people in care. As we have said before in this Chamber, their difficulties are varied when wanting to make representation. They range from arguments about rules, to their rights not to be moved from one placement and placed into another, thus losing all contact with friends and schools, to allegations of bullying and indeed abuse.

Many, however, do not want to invoke the full complaints procedure. They need someone to help them negotiate through difficult patches. Others need immediate removal from their situation to protect them. But what they all need is a trusted adult alongside them—someone they see as representing their interests, and no others, to see them through the process. More than anything else, these young people have said that they want that to be independent of the system or the individuals about whom they are complaining.

I have no doubt that there are many good social workers and legal workers in local authorities who could do that, but is it a right principle? There are real problems about conflict of interest. I have thought through whether reciprocal arrangements would work, hut, as the Minister will know, the panels of guardians ad litem ran into real difficulties because of differences between local authorities attempting to ensure their independence. From that, we gained the independent group of CAFCASS.

Within a local authority, responsibility for a client and an employer can come into conflict. As a former director of social services, I have experienced that to a great degree. The Minister might like to consider how an advocate employed by a local authority would take forward an application for a child under human rights legislation when he has signed contracts binding him to abide by the policies and procedures of his employing authority?

There was an attempt at independence in the context of the Children Act complaints procedure where an "independent person" means independent of the local authority. But the role of these individuals is severely curtailed to consideration of the issues without making any investigation or necessarily seeing the child. Let us take it the whole way forward and have real independence.

While anecdote is not evidence, it is worth reminding ourselves of what can happen if the child does not have independent representation. Perhaps I may tell your Lordships of a 14 year-old who made a complaint on behalf of 11 children in her children's home. The little ones were so terrified at night that they were sleeping under the local bandstand. The regime was oppressive but did not stop the severe bullying between the young people.

The young woman received a letter from her local authority legal department, not in child-friendly terms, telling her to present herself at the town hall at a given date and to "explain herself". The letter went on to state that although the local authority lawyer would be present, together with senior members of the administration, she had no right to legal representation. What the local authority did not know was that she had contacted an independent advocacy scheme and arrived with an advocate and a lawyer who finally found 22 allegations against the local authority. What happens to young people who have not found independent help in circumstances such as those? It was clear that this local authority had no intention of giving her independent advice.

I know that the Minister believes in letting local authorities get on with their job. It is a view I largely share. But is he aware that the fastest growing group of referrers to independent agencies are local authority social workers who feel they can do no more within their own system? I also know that the Government are not keen on central schemes. But is the Minister also aware that, as I understand it, there were discussions with the Department of Health and the Association of Directors of Social Services when a scheme was considered to top-slice—I realise that that is not a nice word in local authority terms—a tiny amount of funding from local authorities properly calculated to ensure that any child in care could choose his advocate and know that the funding would he available?

It is a kind of insurance fund for each child and it would go with the child, but of course not all children would use it. It would also save the voluntary sector having to bill 151 separate authorities. In the long run. it would therefore be cheaper. Would the Minister consider looking at such a scheme again, if only at somewhere to run it as a pilot?

Perhaps I may ask the Minister one final question of clarification of his reply on 23rd October. He said: We want to ensure that the assistance provided is not influenced by the local authority. We believe that this is best done by ensuring that no one with a direct interest in the outcome of the complaint is involved in the provision of assistance to the child or young person".—[Official Report, 23/10/02; col. 1391.] Does the Minister not accept that in a local authority there is a clear line management all the way through to the director and, through corporate working, to the chief executive? Ultimately, that will be with the members, particularly in an era of cabinet working where one member is likely to be responsible for these services. How will the Minister ensure that there is no one with a direct interest involved in investigations in these circumstances?

If as an adult one is seeking advice or help for what one sees as an injustice, there is a wide range of independent services to which one can turn. I urge the Minister to offer our most vulnerable children—children in care—at least this one.

Baroness Howe of Idlicote

My Lords, I support the amendment tabled by my noble friend Lord Listowel and what was admirably said in addition by my noble friend Lady Howarth. The most important point made in this debate and previously was the growing need of such children—the most vulnerable and least achieving of the children in our society—to have an independent voice.

We already know that a number of the children have begun to be more vociferous and organisations such as the Advocacy Consortium are already doing some work in this respect. I like the idea that some central funding would totally remove the charge of lack of independence because a local authority was paying, however supposedly independent the organisation undertaking the work.

Whether that is possible or not, we must have a guarantee from the Minister that these services will be available to children in care. Many of them have been in care for a long time and by definition they will feel intimidated about making a complaint against those who are in charge of them. Noble Lords may remember that I referred to the Children Act under which there was a plan to have a "friend" for every child who had been in care and was not in contact with the family. Whether or not that plan can ever be resurrected, an organisation to which these children can go must be established. Childline is one of the most effective voluntary organisations and has been of huge practical help to young people, but the danger that these children are in—often, sadly, when they are in local authority care—cannot be overstated. I hope that the Minister will feel able to give a greater guarantee than he has in the past.

5 p.m.

Earl Russell

My Lords, I congratulate the Minister on what he has already done about advocacy, but he understands well enough that progress is incremental and that a parliament is an assembly of Oliver Twists. Therefore, I do not think that he will take it personally if we ask for more.

The principle of conflict of interests, referred to by both the noble Earl, Lord Listowel, and the noble Baroness, Lady Howarth, is crucial. The local authority to which the noble Baroness referred, which summoned a girl to appear, telling her that she had no right to legal representation but that the local authority lawyer would be present, was acting as judge and party in its own court. Therefore, as I understand it, it was in breach of the principles of natural justice and liable to judicial review. It might have found that a great deal more expensive than allowing the child a decent advocate.

We need a further definition of what is "advocacy". I have experience of the problem. I once represented a student of mine in a situation which appeared to put his interests in conflict with those of the college. I am glad to say that, in the end, appearances proved deceptive, but they were the appearances at the time. As I served a very good college, I had the great fortune to receive a note in writing, under the hand of my head of department, stating that he understood that my duty was to serve the interests of my student regardless of those of the college, as long as I understood in return that the department's duty was to both the students concerned as they were both members of the department.

But they do not all come like that—and it is because they do not all come like that that this precaution of legislation to prevent conflicts of interest is vitally important in terms of justice. When one thinks of the possibility of judicial review, it is vitally important to the saving of local authorities' money—and that needs to be done, too.

Baroness Noakes

My Lords, I support the intent of Amendment No. 23. Last week on Report I welcomed the Government's amendment, which inserted Clause 119, in place of my amendments designed to introduce independent advocacy. However, I said that the welcome was tempered by concerns about independence, those concerns being shared by a number of noble Lords. We could not see that there was genuine independence from the local authority, only that the Government were promising case independence. The House should be grateful to the noble Earl, Lord Listowel, for tabling the amendment, which allows us to debate again the importance of independence.

The amendment does not require that all advocacy services are independent but that a looked-after child should be able to choose his or her advocate and, so far as is practical, to choose an advocate who is independent of the authority. It is thus a very modest amendment. I am not sure that its drafting is entirely right, but that is not a point for today.

I hope that the Minister will be somewhat more reassuring than he was on Report about the Government's commitment to the independence of advocacy services. At that stage the Minister seemed to say that it would be acceptable for an authority to provide only in-house advocacy services. I do not believe that that is good enough. A local authority may find it impossible to contract with an outside advocacy provider, but I doubt that that will ever be the case. If that were to be the case, I concede that the provision of in-house advocacy would be better than none. However, in practice, there should always be the option available to the authority to arrange for some kind of outside and independent advocacy services.

I shall listen very carefully to hear whether the Minister states that the regulations will enshrine both choice for the child and proper independence wherever possible. I hope that the Minister will not put the freedoms of local authorities above the interests of this vulnerable group of children.

Lord Hunt of Kings Heath

My Lords, noble Lords—particularly those who took part in the debates on the Children (Leaving Care) Bill and the Health and Social Care Bill—will know that it was with great pleasure that I was able to bring forward the government amendment on Report. All noble Lords will agree that it is a very great advance.

I recognise the description of the noble Earl, Lord Russell, of the Oliver Twists in the House. I have learnt that noble Lords are usually not satisfied with whatever the Government bring forward—that is fair enough—and I understand the points that have been raised about independent advocacy. However, we should not underestimate the role played by a number of local authorities in showing how advocacy can work effectively. That is why I trust local authorities to take this matter forward.

Unfortunately, the noble Baroness, Lady O'Neill, is not in her place, but I was struck by the theme of her reflections on the whole question of trust. As someone who came into public life as a member of a local authority, I uphold the principle of placing trust and responsibility in local authorities. We have an ability to do that here. Many local authorities will choose to use external organisations to provide such advocacy, but some will wish to provide it in-house. The publication of our advocacy standards, the consultations that we will undertake and the regulations that we will bring before both Houses will enable us to ensure that, where a local authority has decided to provide services in-house, those services are effective and meet the problems that a number of noble Lords have suggested might occur with an in-house service.

Let me address the detail of the amendment and, first, the question of choice. I should say to the noble Earl, Lord Listowel, who has great experience in this area and is a champion of children and children's rights, that I fully agree that giving a child or a young person a choice is important. We should reflect on the fact that we intend to use the regulation-making power in Clause 119(3)(b) to set out that the child or young person should be provided with choice in relation to who should be appointed to act as his or her advocate.

I therefore do not feel that it is necessary to set out on the face of the Bill that the child should be provided with a choice. However, the fact that we intend to do this in regulations, and that the regulation-making power enables us to make quite detailed provision in relation to this issue, meets the point raised by the noble Earl.

As to the remainder of the amendment, as a number of noble Lords have suggested, there are some technical flaws in its wording. It is not clear exactly how it would work. The amendment provides that when the local authority is making arrangements for the provision of assistance to children and young people, it shall have regard to the principle that the child or young person should be offered a choice of representative. However, it does not place any kind of duty on the provider of the service to ensure that in a specific case the child has a choice. Given that the second part of the amendment is directed towards requiring the service to be independent of the local authority, the local authority does not have the input into appointing the advocate which would be required for it to ensure that the child or young person has a choice.

In addition, we must face up to the fact that there are bound to be occasions when the child's choice of advocate is not suitable to act on his or her behalf. To what extent should the local authority or the advocacy organisation running the service be tied to ensuring that the child or young person gets his or her choice? I do not have easy answers to that point. There needs to be full consultation. These matters are finally best answered through regulations. The national advocacy standards also stress that choice is important in the provision of advocacy services.

I turn to the question of independence—an issue that we discussed at some length on Report. The word "independent" is not a term with any precise meaning. The amendment seeks to give it meaning in this context. It does so in two ways. First, it sets out that the advocate, shall be, as far as is practicable, independent of the local authority". Secondly, it sets out that the advocate shall be independent of, any person who is involved in the investigation or adjudication of any representation". I shall take the second point first. A number of noble Lords commented on it specifically. I re-emphasise that the power that we have taken in subsection (3)(a) of new Section 26A to be inserted into the Children Act enables regulations to be made to ensure the independence of the person providing the advocacy to the child or young person. I stated to the House our clear intention that the regulations made under subsection (3)(a) would provide that the advocate must not be the subject of the complaint; be involved in the line management or case management of the case; or be involved in the investigation or consideration of the complaint. That goes further than what is set out in the amendment, which does not set out that the advocate must not be the subject of the complaint or be involved in the case management or line management.

The Government will be consulting on the regulations. That will enable us to take a view from all those involved in advocacy services and children's rights services about what other measures might be appropriate to include in regulations in order to secure independence. Again, the regulation-making power gives us scope to make detailed provision and to respond to the concerns of practitioners and to changes that may be required over time in the light of experience.

The other provision in the amendment relating to independence is that the advocate shall be, as far as is practicable", independent of the local authority? What does independence mean? The fact that the amendment needs to use that phrase reflects the difficulty of defining what is meant by the term. "Independent" can have different meanings in different situations. What is required in terms of independence may be viewed differently from different perspectives. Arguably, the service will never be entirely independent of the local authority because it is the local authority that will be funding the provision of the advocacy service.

The noble Baroness, Lady Howarth, suggested that we did some top-slicing and created a national service. I do not believe that we ought to go down that route. Local authorities are statutory organisations. It is their responsibility to ensure that proper advocacy services are in place and, at the end of the day, they should provide the funding. Out of the extra resources that local authority social services will receive over the next three years we believe it appropriate that they should fund such services. The noble Earl, Lord Howe, is probably right. It is certainly our experience in the National Health Service that patient advocacy and liaison services are having a very positive impact in dealing with issues as they arise, and quickly, before they are allowed to fester. It is in the best interests of local authorities to have effective advocacy services, whoever runs them, in operation.

We must not confuse "independent" with "separate". I return to the point that I made earlier. There are many examples of excellent in-house advocacy and children's rights services being run by local authorities with those services located and managed separately from the organisation. I should regret the fact, if the House decided to accept the noble Earl's amendment—which I accept comes from the best of motives—that it would mean forcing 40 or so local authorities to dismantle their existing schemes, preventing children and young people from working with local advocates with whom they have built up a good relationship.

We must also remember that, very often, the consultation that we have had with stakeholders has emphasised to us the importance of a variety of schemes being provided. I refer not merely to services by national organisations. It has been suggested that where a local authority, for instance, has a much wider programme of encouraging the participation of young people, there is every advantage in advocacy not being separate from that but being part of the service that is provided across the range of local authority provision.

The challenge for me is to ensure that this will work. If I am insisting that local authorities be shown some discretion, I must assure this House that we shall make sure that that works out okay for young people.

On Report, I explained that the national advocacy standards will build on the regulations to inform the way in which independence works in practice. The standards set out the core principles of how we want councils to provide and commission advocacy services. We want to ensure that the child or young person knows that the service will not be influenced. We want children and young people to be fully confident that advocates are acting exclusively on their behalf and have no potential or conflicting interest. I have no disagreement with any noble Lord who has spoken on that matter. I should not have brought forward the amendment on Report had I thought that by giving some discretion to local authorities I should be setting up a situation whereby those local authorities would inhibit that advocacy from operating effectively.

We will ensure that local authorities implement this provision in a sensible way, according to the standards that we set out, and we shall performance-manage them. I urge noble Lords, who know how keenly I feel about advocacy, to allow for some local authority discretion.

5.15 p.m.

Baroness Howe of Idlicote

My Lords, before the Minister sits down, perhaps I may query one aspect of his remarks. It seemed to me that there was quite a lot of support for the intentions behind the amendment, if not for the wording—the Minister has fairly pointed out that some areas could be tightened up. Am I right in understanding him to say that there may well be some local authorities that would want exclusively to run the advocacy services, and that he would be happy with that—that is, if there was not a chance for some independent, albeit approved, group of people such as the Advocacy Consortium to be involved as an alternative, as a choice for the young people concerned? If that is what he means, is he quite certain that it fits within the requirements of human rights legislation in terms of transparency so far as concerns independence?

Lord Hunt of Kings Heath

My Lords, the Government would not take any action that they believed to be outwith human rights legislation. My argument is this. I raised the issue of the technical deficiencies in the noble Earl's amendment. On top of that, I have a substantial difference with the noble Earl. First, it is essentially appropriate for local authorities to make their own decisions about independent advocacy in the context of the national advocacy standards. Secondly, they can decide to run those services in-house. The Government want advocacy to work effectively, and to ensure that, we want to allow local authorities that run successful advocacy services to be allowed to continue to do so. However, we will keep a close eye on the general performance of local government in this field. We would not hesitate to intervene if we came across local authorities that had not established effective advocacy services.

Lord Northbourne

My Lords, before the Minister sits clown, he did not answer clearly the question of the noble Baroness, Lady Howe, as to whether it is intended that some local authorities should run advocacy services to the exclusion of any other kind of advocacy for the children concerned.

Lord Hunt of Kings Heath

My Lords, we will consult on regulations. We want local authorities to have discretion in this area; they should be shown flexibility. But the safeguards are the national advocacy standards, which we will performance-manage to ensure that local authorities provide effective advocacy services.

The Earl of Listowel

My Lords, I thank the Minister for his response, and everyone who took part in the debate. The House clearly wishes the Minister to take great care in the implementation of the provisions and to watch over the process to ensure that the advocacy provided is independent.

I welcome what the Minister said about consultation. He emphasised that there would be extensive consultation before implementation of the regulations. I welcome his assurance that he will ensure that advocacy services will be provided. Given those assurances, and recognising the important step taken by the Minister and the Government in putting advocacy services on the face of the Bill for the first time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker

moved Amendment No. 24: After Clause 120, insert the following new clause— "PRIVATE FOSTERING After section 66(4A) of the 1989 Act there is inserted— (4B) The Secretary of State may by regulations make provision as to the circumstances in which local authorities may oversee the registration of private fostering." The noble Baroness said: My Lords, not long ago the noble Earl, Lord Howe, commented that it had been enjoyable to work on this Bill, and I agree. There has been much intensive, heartfelt discussion and much co-operation throughout the House. The Minister frequently listened to the points made and agreed to them. There has also been much cross-party agreement, and, perhaps more interestingly, huge disagreement within parties on some issues. This amendment is the final substantive area for discussion—what a brilliant example of co-operation on which to finish. Many noble Lords will regard this as the most extraordinary amendment, and, on reading the text, may have believed that there was a mistake, and that the amendment should have been tabled in the Minister's name. It could have come from his own pen, but it is mine.

We have discussed private fostering several times, and many noble Lords were present last week when we returned to the subject yet again. Over the months of discussion, we have established that there is unanimous agreement that the issue is important. We have agreed that the complete lack of regulation of private fostering must change. We have not agreed on exactly what should be done or on the urgency of the situation.

On Report, the Minister made some important points in respect of the amendments tabled, which I took on board. He talked about the current review, which is almost complete, and the need for the Government to take into account the views expressed as part of that consultation. He mentioned the forthcoming report by the noble Lord, Lord Laming, into the death of Victoria Climbié. We need to be mindful of the recommendations of that independent report. He talked about the difficulties of determining exactly how any regulation of private fostering should work. He also talked about the difficulties of dealing with details such as what to do about language students, and the age at which children should be subject to regulation if they are privately fostered.

The Minister made a powerful and persuasive case that Ministers need flexibility in this respect. That is why the amendment in my name would give the Minister the widest and most permissive regulatory powers. We on this side of the House usually rail against such measures at considerable length. However, I have accepted that that is what is needed in this case.

Why does the measure need to be included in this legislation? I return to the point that this Adoption and Children Bill is the correct legislative home for measures on private fostering. After the publication of the Laming report, it is likely that there will be yet another set of arguments in favour of a registration scheme. Every report on the subject for the past 30 years has said that registration is important. I strongly believe that the primary legislation needed to enable a registration scheme for private fostering to come into play should be this Bill; otherwise we will have to wait until an unspecified future date when another suitable Bill can be used as a vehicle for it. By that stage, we would have lost valuable time in dealing with the last unregulated area of childcare.

For those reasons, I believe that it would be right to include the provision now. In doing so, the House would not be pre-empting the Laming report, nor would it be acting imprudently. I strongly believe that we should not wait for yet another childcare crisis to happen, to which we would have to react by legislating very quickly.

For all those reasons, I believe the amendment is the right way to go. It places no requirement on the Minister. It is a permissive power that can be used at any time. The history of regulation on adoption legislation is remarkable. Adoption legislation containing regulatory powers has been passed over the years, but some of those powers were not brought into play until 15 or 20 years later. Indeed, some of them were never used, such as those in the 1940s legislation.

I think the amendment is wise and sensible. It is a concession to the point that the Minister raised last time. I beg to move.

5.30 p.m.

Earl Howe

My Lords, I have supported the noble Baroness on the issue on two previous occasions. I am very much in sympathy with her wish to seize this legislative opportunity on a matter of such importance. We have all acknowledged in earlier debates that children who are privately fostered are some of the most vulnerable in our society. We cannot be confident that there will be another such legislative opportunity in the foreseeable future. I support the amendment.

Baroness Howells of St Davids

My Lords, although I have not spoken on the issue, I have followed the Bill closely. I support the amendment. I have spent some time consulting on the probability of us not taking this small step at this time. The more we invite or introduce new cultures into the British system, the more we have to realise that some people do not see fostering in quite the same way as we do. Some people think it is easy to send their child over to stay with an aunt, a cousin or somebody else. The local authority must have a means of registering people who do such informal fostering. If it does not have such a means, it cannot be blamed when things go wrong. This is a very small clause to deal with a very important issue. Hundreds of children are coming into this country with no protection. I should very much like the Minister to agree to it.

Lord Hunt of Kings Heath

My Lords, I have always recognised that, without question, something needs to be done about private fostering. I hope that noble Lords will acknowledge that I have recognised the concerns that have been expressed throughout the passage of the Bill. I commend the noble Baroness, Lady Barker, for always trying to meet my objections and coming forward with a new amendment. I accept that she has cleverly tried to give hugely wide permissive regulatory powers to meet almost every objection that I have raised.

However, I have grave doubts about giving such wide regulatory powers before the policy on what is to be done is sorted out. By making those powers so wide and so vague the noble Baroness may, inadvertently, detract from the focus that is required.

I recognise the concern expressed by the noble Earl, Lord Howe, that there will not be a legislative opportunity in the future once the policy is decided. Noble Lords will know that we are engaged in substantial discussion with stakeholders on what is to be done. Ministers are clearly always wary about giving any promissory note about future legislation. I shall simply repeat my earlier comment that, although legislation on adoption comes round fairly infrequently, legislation relating to children and children's issues is not infrequent. If it is decided that legislation is required, of course the Government will look for the earliest opportunity to bring it before your Lordships.

We have a problem. The Children Act 1989 provides a legal framework for notification that requires the private foster carer and the person with parental responsibility to notify the local council of the proposed private foster care arrangements. Under that framework, once the local authority knows about the impending arrangements, the Children Act requires the authority to satisfy itself that the welfare of the child is being satisfactorily safeguarded and promoted by others by supervising, regulating and advising in respect of the private placement. The local authority is required to visit at specified intervals and to report on those visits.

The local authority must satisfy itself that the foster parents, household and accommodation are satisfactory. It has the power to impose requirements or, if there are serious concerns, to prohibit the fostering arrangement. Common types of private fostering arrangements include the practice of African children being sent to England to benefit from a good education, with the expectation of improved life chances for the child. Many teenagers move in with the parents of boyfriends or girlfriends following family rifts and others stay with school friends or neighbours following family disagreements, separation or divorce. Many children come to language schools and are accommodated by host families. Children come from Chernobyl or the Balkan countries for extended holidays to learn, to have specialist health care and for recuperation.

There have been concerns about all that for some time. My department has taken a number of measures and actions to increase the awareness of the general public and to improve local authority activity on private fostering. As a result of that and of a recognition that more needs to be done, we have instigated a review of the current arrangements surrounding private fostering. That review is still in progress. It is focusing on whether the existing arrangements in Part IX of the Children Act 1989 and its associated regulations are robust enough to protect vulnerable children living away from their parents. The review seeks to determine how appropriate the current framework is and how it could be improved through a number of options. We have clear in our minds that any changes have to get the right balance between safeguarding children and recognising parental responsibility across the range of children who are presently privately fostered.

We have investigated the current notification and assessment process, the thresholds of intervention and the possibility of discrete standards. The review has looked at what registration would mean for private fostering, how the awareness of private fostering could be increased, especially through the work of other professionals, and whether different groups of children ought to be handled differently.

We have involved a wide range of stakeholders and listened carefully. British Council meetings have included other departments with an interest, including the Department for Education and Skills, the Foreign and Commonwealth Office, the Home Office and the Office of the Deputy Prime Minister. This is a thoroughgoing review. We also need to take into account the findings of the Climbié inquiry, which may well make recommendations that we need to consider.

I have already recognised that the noble Baroness is seeking to be helpful in drafting an amendment that would give the widest possible discretion to set up a registration system.

I would, however, just caution the House: there is no easy and straightforward answer to address all the issues to the right level and extent. I doubt whether we could, as the amendment suggests, truly mop up all of the issues in one general, unspecific provision in this legislation. Indeed, given noble Lords' attitude to giving wide and unspecified powers to the executive, I doubt whether this provision could really commend itself to the House.

Surely it would be more sensible to use the findings of the review properly. The very reason for instituting the review was to avoid a knee-jerk reaction and ensure a proper and reasonable response to the concerns. Of course we may need additional regulating power—but for what? The amendment is certainly not clear about that. Indeed, it seems to propose nothing more than powers that are already available. Private fostering is already regulated—although there is general agreement that that is not working—and the circumstances are already defined in the Children Act.

The amendment states that local authorities "may oversee" the regulation of private fostering, which is a wide provision. I should think that the last thing that anyone, including the noble Baroness, Lady Barker, would want is alaissez-faireapproach to this issue. Children's safety is important and we must have legislation that specifically requires local authorities to perform their duties.

I do not seek to criticise the noble Baroness, and I understand completely why she has moved this amendment. I think that she will understand that I very much agree with her sentiments. Action on private fostering needs to be taken, and it is clear that the current regulatory system is not working effectively. However, although I do not want to go over ground that we covered on Report, a number of very difficult issues remain to be decided before we can confidently produce legislation. For that reason, I hope that the noble Baroness and other noble Lords will accept that, although I cannot recommend accepting the amendment, the Government are as exercised as she is to ensure that we sort out this problem for the long term.

Baroness Barker

My Lords, it will come as no surprise to noble Lords to hear that I accept that the Minister and I largely agree on this issue. I know that he shares my concern that the current system is clearly not working. I also accept that this amendment is not the definitive word on the regulation that is necessary to make private fostering safe. The amendment would, however, do two things. First, it would give the Government permissive powers to oversee the regulation of a registration scheme. The Minister described the position in private foster care. Currently, however, local authorities have only reactive powers. They can prohibit people from continuing to care for a child only when they have sufficient evidence that something has gone wrong. They have absolutely no power to prevent unsuitable people from becoming private foster carers in the first place. That is a key distinction.

I have no wish to revisit our recent lengthy debates on the issue. However, I know that the Minister shares my concern that, as evidence currently being gathered shows, private fostering is changing from an informal agreement between relatives and members of the extended family to something much closer to a commercial transaction. That is the key impetus for our desire to give local authorities the power to stop unsuitable people from becoming private foster carers in the first place.

Like the Minister, I do not like the breadth of the proposed powers. However, I do not believe that any of the objections which he raised cannot be met by the wide powers in this amendment.

Lord Hunt of Kings Heath

My Lords, although the noble Baroness criticises the current legislation—and by implication the decision of local authorities not to implement it—Amendment No. 24 does not oblige local authorities to register. The amendment's exact terminology is that local authorities "may oversee"; they would not be obliged to register. I understand what the noble Baroness is seeking to do. She is trying to make a provision that is sufficiently wide to enable the Government, once we have concluded our review, to legislate through regulation. My own view is that, if there is to be a substantial change in policy, it should be done through primary legislation. However, I also believe that, by making the power so wide, the noble Baroness is detracting from the ability to require local authorities to take action. I therefore think that there is a genuine drafting problem here.

Baroness Barker

My Lords, it is extremely interesting to hear the Minister, for once, making the type of argument that we on this side of the House have been making week in and week out. Tomorrow, therefore, some of us will probably not only readHansardbut frame it.

There may a problem with the drafting of my amendment, but the Government still have an opportunity to change it and toughen it up. As I said, I do not think that any of the objections that the Minister raised cannot be dealt with by the amendment itself. I do not doubt that future legislation will address children's issues. However, as I have said time and again for 30 years, we have known about this issue but not satisfactorily tackled it. Although I do not think that my amendment is the answer, we can, by signalling our intention to move the issue up the agenda before publication of the Laming report, strengthen the hand of those who seek an answer.

I am very sorry to end on this note because the Minister has listened and been extremely generous in most of his responses to our points. This time, however, I do not find his arguments compelling. I should therefore like to test the opinion of the House.

5.48 p.m.

On Question, Whether the said amendment (No. 24) shall be agreed to?

Their Lordships divided: Contents, 55; Not-Contents, 138.

Division No. 1
Addington, L. [Teller] Mackie of Benshie, L.
Avebury, L. Maclennan of Rogart, L.
Barker, B. McNally, L.
Beaumont of Whitley, L. Maddock, B.
Bhatia, L. Mar and Kellie, E.
Bradshaw, L. Methuen, L.
Carlile of Berriew, L. Newby, L.
Chan, L. Northover, B.
Clement-Jones, L. Perry of Walton, L.
Dahrendorf, L. Phillips of Sudbury, L.
Dundee, E. Prashar, B.
Falkland, V. Razzall, L.
Geraint, L. Redesdale, L. [Teller]
Goodhart, L. Rennard, L.
Greaves, L. Rodgers of Quarry Bank, L.
Roll of Ipsden, L.
Hamwee, B. Roper, L.
Harris of Richmond, B. Russell, E.
Holme of Cheltenham, L. Sandberg, L.
Hooson, L. Sharp of Guildford, B.
Howe of Idlicote, B. Shutt of Greetland, L.
Jacobs, L. Stodart of Leaston, L.
Jenkins of Hillhead, L. Taverne, L.
Kilclooney, L. Thomas of Walliswood, B.
Laird, L. Tope, L.
Lester of Herne Hill, L. Walmsley, B.
Linklater of Butterstone, B. Weatherill, L.
Livsey of Talgarth, L. Williams of Crosby, B.
Acton, L. Crawley, B.
Ahmed, L. David, B.
Amos, B. Davies of Coity, L.
Andrews, B. Davies of Oldham, L.
Archer of Sandwell, L. Dean of Thornton-le-Fylde, B.
Ashton of Upholland, B. Desai, L.
Barnett, L. Dixon, L.
Bassam of Brighton, L. Donoughue, L.
Berkeley, L. Dormand of Easington, L.
Bernstein of Craigweil, L. Dubs, L.
Billingham, B. Eatwell, L.
Blackstone, B. Evans of Parkside, L.
Bledisloe, V. Falconer of Thoroton, L.
Boothroyd, B. Farrington of Ribbleton, B.
Borrie, L. Faulkner of Worcester, L.
Boston of Faversham, L. Filkin, L.
Bragg, L. Fyfe of Fairfield, L.
Brett, L. Gale, B.
Brightman, L. Gibson of Market Rasen, B.
Brooke of Alverthorpe, L. Gordon of Strathblane, L.
Brookman, L. Goudie, B.
Brooks of Tremorfa, L. Gould of Potternewton, B.
Burlison, L. Graham of Edmonton, L.
Campbell-Savours, L. Greenway, L.
Carter, L. Grenfell, L.
Chandos, V. Grocott, L. [Teller]
Chester, Bp. Hardy of Wath, L.
Chorley, L. Harris of Haringey, L.
Christopher, L. Harrison, L.
Clark of Windermere, L. Haskel, L.
Clinton-Davis, L. Hayman, B.
Cohen of Pimlico, B. Hilton of Eggardon, B.
Hogg of Cumbernauld, L. Nicol, B.
Hollis of Heigham, B. Orme, L.
Howarth of Breckland, B. Parekh, L.
Howie of Troon, L. Patel, L.
Hoyle, L. Patel of Blackburn, L.
Hughes of Woodside, L. Pendry, L.
Hunt of Chesterton, L. Peston, L.
Hunt of Kings Heath, L. Pitkeathley, B.
Inge, L. Ponsonby of Shulbrede, L.
Irvine of Lairg, L. (Lord Chancellor) Prys-Davies, L.
Radice, L.
Islwyn, L. Ramsay of Cartvale, B.
Janner of Braunstone, L. Rea, L.
Jay of Paddington, B. Rendell of Babergh, B.
Jones, L. Richard, L.
Jordan, L. Rooker, L.
Kirkhill, L. Scotland of Asthal, B.
Layard, L. Sheldon, L.
Lea of Crondall, L. Simon, V.
Lichfield, Bp. Smith of Gilmorehill, B.
Lipsey, L. Strabolgi, L.
Listowel, E. Symons of Vernham Dean, B.
Lofthouse of Pontefract, L. Taylor of Blackburn, L.
Temple-Morris, L.
McCluskey, L. Thornton, B.
Macdonald of Tradeston, L. Turnberg, L.
McIntosh of Haringey, L. [Teller] Turner of Camden, B.
Varley, L.
MacKenzie of Culkein, L. Walker of Doncaster, L.
Mackenzie of Framwellgate, L. Warwick of Undercliffe, B.
Mallalieu, B. Wedderburn of Charlton, L.
Mason of Barnsley, L. Whitaker, B.
Massey of Darwen, B. Whitty, L.
Merlyn-Rees, L. Wilkins, B.
Mitchell, L. Williams of Elvel, L.
Monson, L. Williams of Mostyn, L. (Lord Privy Seal)
Morgan, L.
Morris of Aberavon, L. Williamson of Horton, L.
Morris of Manchester, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.58 p.m.

Clause 123 [Restriction on advertisements etc.]:

Lord McIntosh of Haringey

moved Amendment No. 25: Page 72, line 34, at end insert— (6A) References to an adoption agency in this section include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances. Prescribed" means prescribed by regulations made by the Secretary of State. The noble Lord said: My Lords, in moving Amendment No. 25, I wish to speak also to Amendments Nos. 26, 27, 28, 46 and 50. This group of amendments provides a clearer and more straightforward text than the current draft of the provisions they concern and provide a better foundation for regulations.

Amendment No. 25 concerns Clause 123, which restricts the publication of advertisements indicating that persons other than adoption agencies are willing to make arrangements for the adoption of a child. Clause 123 is designed to provide the most effective restrictions on adoption advertising in the United Kingdom. It is a UK-wide provision and makes explicit reference to the Internet, so there can be no doubt that the Bill covers that medium. Given the nature of the Internet, it is difficult to restrict information that flows from a website hosted by an Internet service provider located in another country. We would seek the assistance of the authorities in that country if we had concerns for the welfare of children, or would apply for a derogation under the e-commerce directive, if the Internet service provider were located in a member state. We intend to provide for derogations through regulations made under the European Communities Act 1972.

If a person were to see information on the Internet and then act on it by bringing a child into this country for adoption, the Bill would provide us with the means to penalise them, if necessary. If they did not comply with the conditions in Clause 83, which provides restrictions on bringing children into the United Kingdom, they would face a penalty of up to six months' imprisonment or a fine not exceeding the statutory maximum or both. In the event that the case was referred to the Crown Court, they would face up to 12 months' imprisonment or an unlimited fine or both.

Amendment No. 25 inserts new subsection (6A) into Clause 123, which provides a regulation-making power for the Secretary of State. If he considers that a body outside the United Kingdom corresponds in its functions to a United Kingdom adoption agency—it may not be an adoption agency as such, as some countries may not have adoption agencies—and if it provides the necessary protection, he may use the power to prescribe that the body is, for the purposes of Clause 123, to be treated as a UK adoption agency. As a consequence, such a body would not be considered to act in contravention of Clause 123, if it were to advertise in the United Kingdom.

The amendment will make it possible for a body established in another country that corresponds, in the sense that I have described, to a UK adoption agency to advertise its services in the UK. That might be helpful to prospective inter-country adopters, who may, for example, be able to obtain information advertised or distributed in the UK, if such a body has been prescribed as corresponding to a UK adoption agency. By requiring that the body must correspond to a UK adoption agency, the Secretary of State must satisfy himself that such bodies are properly regulated in the country in which they are established. That condition is necessary to ensure that there are proper safeguards in place to protect the welfare of children. Amendment No. 26 is consequential on Amendment No. 25.

Amendments Nos. 27 and 28 relate to Clause 125, which provides that contravention of Clause 123 is an offence and sets out the penalties. The Government implemented the e-commerce directive through regulations that came into effect in August. The directive aims to remove obstacles to the growth and competitiveness of e-commerce in the European Community. It places an obligation on each member state to ensure that providers of information society services, such as Internet service providers, established on its territory comply with its national law. Generally, each member state will be prohibited from restricting the freedom to provide information society services from another member state.

The directive also limits the liability of intermediaries, such as Internet service providers, to circumstances in which there is actual knowledge of illegal activity and corrective action is not taken expeditiously. The directive is binding on the United Kingdom, and we must ensure that the provisions of the Bill are compatible with it. We will take the necessary steps to ensure that the restrictions in the Bill are compatible with the e-commerce directive, by using a regulation-making power contained in the European Communities Act 1972. We are taking the same approach for other legislation now before Parliament, including the Tobacco Advertising and Promotion Bill and the Enterprise Bill. The amendments take the advertising provisions as far forward as is practicable.

Amendment No. 28 omits subsections that provide defences for electronic distribution of an advertisement or information in Clause 125. As amended, Clause 125 would provide that a person was not guilty of an offence under the clause unless it were proved that he knew or had reason to suspect that the clause applied to that advertisement or that information. We will ensure that the liability of Internet service providers is provided for in a way that is consistent with the directive in the 2(2) regulations.

Amendment No. 27 will remove from Clause 125 the reference to the distribution of electronic advertisements or information that is no longer needed.

Amendment No. 46 introduces paragraph 13A into Schedule 4. It is a free-standing transitional provision, which enables the Secretary of State to prescribe in regulations that the references to an adoption agency in current English, Welsh and Scottish adoption legislation include a particular body that, he considers, corresponds to an adoption agency in the UK. That would enable such a body to advertise without contravening restrictions on adoption advertising in England, Wales and Scotland.

Amendment No. 50 omits the reference in Schedule 5 to paragraph 13 of Schedule 4 and inserts a reference to paragraph 13A, which is to be inserted by Amendment No. 46. When Clause 123 comes into force, the transitional power will no longer be needed and will be repealed. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendment No. 26: Page 72, line 35, after "(6)" insert "or (6A) On Question, amendment agreed to.

Clause 125 [Offence of breaching restriction under section 123]:

6 p.m.

Lord McIntosh of Haringey

moved Amendments Nos. 27 and 28: Page 73, line 32, leave out from "section" to "unless" in line 34. Page 73, line 38, leave out subsections (3) to (5). On Question, amendments agreed to.

Clause 130 [Disclosure of information]:

Lord McIntosh of Haringey

moved Amendment No. 29: Page 76, line 21, leave out "authority" and insert "organisation The noble Lord said: My Lords, in moving Amendment No. 29, I shall speak also to Amendments Nos. 34, 35, 36, 37, 38 and 47. They are technical amendments.

Amendment No. 29 is a minor technical amendment to correct a mistaken reference in Clause 130. As the Bill stands, Clause 130(5)(b) refers to the disclosure of information by the "registration authority"; it should refer to the "registration organisation".

Amendment No. 34 seeks to amend Clause 143 which allows the appropriate Minister to make, by order, any supplementary, incidental, consequential, transitory, transitional or saving provision that he considers necessary or expedient in order to give effect to the Act. That is a standard provision and is included in most Bills. Its use is restricted only to what is necessary or expedient for the purposes of, or in consequence of, giving full effect to the provisions of the Bill.

The amendment clarifies who the appropriate Minister is, when an order under Clause 143(1) has UK or Great Britain extent. In England and Wales, it would have been the Secretary of State and the Assembly acting jointly: for Scotland, it would have been the Secretary of State. We would have needed two orders for an enactment with UK extent. Amendment No. 34 resolves that problem by ensuring that amendments to enactments with a Great Britain or UK extent can be made by an order made by just the Secretary of State. Before any order is made using the powers in Clause 143(1) that could, if Scottish Ministers had the power in the Bill, be made by the Scottish Parliament, the Scottish Ministers must be consulted. Amendments Nos. 36 and 37 ensure that it is clear that, as was intended, Clause 143(1) has UK extent.

Amendments Nos. 35, 38 and 47 are consequential on amendments that were made on Report; namely Amendments Nos. 128 and 149, tabled by the noble Baroness, Lady Barker. The amendments did not change the effect of the provisions, and, after consultation with the Scottish Executive, we accepted them. On Report, Amendment No. 149 omitted paragraph 19 from Schedule 4, so Amendment No. 35 omits the reference to paragraph 19 of Schedule 4 at Clause 149(5)(d). Amendment No. 38 omits the reference to paragraph 19 of Schedule 4 at Clause 150(5). Amendment No. 47 removes the reference in Schedule 5. I beg to move.

On Question, amendment agreed to.

Clause 134 [Scottish restriction on bringing children into the United Kingdom]:

Lord McIntosh of Haringey

moved Amendments Nos. 30 to 33: Page 78, line 28, at end insert— ( ) In section 50 of the Adoption (Scotland) Act 1978 (restriction on removal of children for adoption outside Great Britain)—

  1. (a) in subsection (1), "not being a parent or guardian or relative of the child" is omitted,
  2. (b) after subsection (3) there is inserted—
(4) The Scottish Ministers may by regulations provide for subsection (1) to apply with modifications, or not to apply, if—
  1. (a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or
  2. (b) the prospective adopter is a step-parent of the child, and any conditions prescribed by the regulations are met.""
Page 78, line 29, leave out "the Adoption (Scotland) Act 1978 (c. 28)" and insert "that Act Page 79, leave out lines 5 to 9. Page 79, line 44, at end insert— ( ) Regulations may provide for this section not to apply if—
  1. (a) the adopters or (as the case may be) prospective adopters are natural parents (whether or not they have parental responsibilities or parental rights in relation to the child), natural relatives or guardians of the child in question (or one of them is), or
  2. (b) the British resident in question is a step-parent of the child,
and any prescribed conditions are met.
On Question, amendments agreed to.

Clause 143 [Supplementary and consequential provision]:

Lord McIntosh of Haringey

moved Amendment No. 34: Page 84, line 36, at end insert— ( ) For the purposes of subsection (I), where any provision of an order extends to England and Wales, and Scotland or Northern Ireland, the appropriate Minister in relation to the order is the Secretary of State. ( ) Before making an order under subsection (1) containing provision which would, if included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, the appropriate Minister must consult the Scottish Ministers.

On Question, amendment agreed to.

Clause 149 [Commencement]:

Lord McIntosh of Haringey

moved Amendment No. 35: Page 88. line 22, leave out ", 19 On Question, amendment agreed to.

Clause 150 [Extent]:

Lord McIntosh of Haringey

moved Amendments Nos. 36 to 38: Page 88, line 32, leave out from "enactment" to "has" in line 33. Page 88, line 38, leave out ", 143(1) Page 89, line 3, leave out "paragraphs 19 and 22 extend" and insert "paragraph 22 extends

On Question, amendments agreed to.

Schedule 3 [Minor and consequential amendments]:

Lord Hunt of Kings Heath

moved Amendment No. 39: Page 113, line 12, at end insert— In section 48 (regulation of fostering functions), at the end of subsection (1) there is inserted— (f) as to the fees or expenses which may be paid to persons assisting local authorities in making decisions in the exercise of such functions". The noble Lord said: My Lords, on Report, the Government tabled an amendment to ensure that local authority adoption agencies are able to remunerate and pay expenses to members of adoption panels. The amendment was necessary because of concerns expressed to us that some adoption agencies felt that they did not have the legal power to make such payments. This amendment makes similar provisions in relation to local authority fostering panels. The purpose of Amendment No. 39 and the amendment we tabled on Report was to help to ease the problem of recruitment of panel members, which can then cause delays in the system.

In commending the amendment to the House I take the opportunity to pay tribute to the work of panel members, both in fostering and adoption. They do excellent work and we need to do everything we can to support and encourage more people to apply. I beg to move.

On Question, amendment agreed to.

Schedule 4 [Transitional and transitory provisions and savings]:

Lord Hunt of Kings Heath

moved Amendments Nos. 40 to 46: Page 117, line 1, at end insert— 10A In section 13 of the Adoption Act 1976 (child to live with adopters before order is made)—

  1. (a) in subsection (1)(a), at the beginning there is inserted "(subject to subsection (1A))",
  2. (b) after subsection (1) there is inserted—
    1. "(1A) Where an adoption is proposed to be effected by a Convention adoption order, the order shall not be made unless at all times during the preceding six months the child had his home with the applicants or one of them.",
  3. (c) in subsection (2), after "subsection (1)" there is inserted "or (1A)",
  4. (d) subsection (4) is omitted."
Page 117, line 1, at end insert— 10B In section 56 of the Adoption Act 1976 (restriction on removal of children for adoption outside Great Britain)—
  1. (a) in subsection (1), "not being a parent or guardian or relative of the child" is omitted,
  2. (b) at the end of that section there is inserted—
    1. "(4) Regulations may provide for subsection (1) to apply with modifications, or not to apply, if—
  1. (a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or
  2. (b) the prospective adopter is a step-parent of the child,
  3. and any prescribed conditions are met.
  4. (5) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the National Assembly for Wales.""
Page 117, leave out lines 17 to 20. Page 117, line 42, leave out from "may" to end of line 45 and insert "provide for any provision of Part II to apply with modifications or not to apply Page 118, line 14. at end insert— ( ) Regulations may provide for the preceding provisions of this section not to apply if—
  1. (a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or
  2. (b) the British resident in question is a step-parent of the child,
and any prescribed conditions are met.
Page 118, line 17, at end insert— 11A In section 72 of the Adoption Act 1976 (interpretation), subsection (3B) is omitted. Page 118, line 34, at end insert— 13A (1) The Secretary of State may make regulations providing for the references to an adoption agency in—
  1. (a) section 58(1)(c) of the Adoption Act 1976 (c. 36), and
  2. (b) section 52(1)(c) of the Adoption (Scotland) Act 1978 (c. 28),
to include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances.
Prescribed" means prescribed by the regulations. (2) Before exercising the power conferred by sub-paragraph (1) in relation to the Adoption (Scotland) Act 1978 (c. 28), the Secretary of State must consult the Scottish Ministers. On Question, amendments agreed to.

Schedule 5 [Repeals]:

Lord Hunt of Kings Heath

moved Amendments Nos. 47 to 50: Page 120, column 2, leave out line 18. Page 120, column 2, line 18, at end insert "In section 50, the words "not being a parent or guardian or relative of the child". Page 121, line 47, leave out "11" and insert "10A Page 121, line 47, leave out "13" and insert "13A On Question, amendments agreed to.

6.15 p.m.

Lord Hunt of Kings Heath

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)

Lord Brightman

My Lords, perhaps I may take a moment to express my appreciation of one aspect of the drafting of the Bill. I refer to the inclusion of an index of defined expressions, which is to be found in the last three pages of the Bill in Schedule 6, page 122. That invaluable device enables the reader to tell at a glance whether a particular word or expression is used in the text of the Bill in its ordinary dictionary sense or in a special statutory sense.

Your Lordships will see that the index is in two columns. Column one lists those words and expressions which are given a special meaning in the Bill. Column two states the clause where the meaning is to be found. Perhaps I may take an example. Clause 35 at page 23 of the Bill requires prospective adopters to return a child to the adoption agency if the agency is of the opinion that the child should not remain with the prospective adopters, and the adoption agency "gives notice" of its opinion to the prospective adopters.

The dictionary definition of "notice" in this sort of context is "intimation" or "warning", which, so far as the dictionary definition goes, may be oral or in writing. The reader of the Act will want to know whether "notice" is used in its ordinary dictionary sense or in a more restricted sense such as a notice in writing; perhaps whether it would be enough to pick up the telephone.

As the Bill contains an index of defined words and expressions, the reader will not have to search long or far for the answer. Column one of the index tells the reader immediately that, indeed, "notice" has a special meaning. Column two tells him immediately where that meaning is to be found: Section 145, where "notice" is defined as "notice in writing". Therefore, a telephone call would not be sufficient.

I do not know why every lengthy Act of Parliament does not contain an index of defined expressions. It costs little effort to compile, takes up little space in the Act and saves the reader much trouble. The Public Bill Office tells me that only three Bills in 1998 contained an index of defined expressions. There were none in 1999; two in 2000 and two in 2001.

I submit that all lengthy and complicated Acts of Parliament should contain such an index. My thanks go to those concerned for including an index in the Bill.

Lord Hunt of Kings Heath

My Lords, I thank the noble and learned Lord for his kind comments. I shall ensure that they are read by those who drafted the Bill. I agree with the noble and learned Lord; having an easy-to-understand glossary is of use to a Minister as it is to every other Member of your Lordships' House. I commend that very good practice of my own department to other government departments; that is, in a corporate sense.

On Question, Bill passed and returned to the Commons with amendments.