Adoption and Children Bill
Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Department of Health; Labour)
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for bringing these matters back to the House for further consideration. I do not doubt the importance of the matters he raises or his concern; in particular his concern to ensure that birth parents and grandparents are appropriately considered in relation to special guardianship orders and support services.
I am grateful to the noble Lord for repeating many of the words that I used in Grand Committee. He will not be surprised to know that I found them fairly persuasive. The short answer to many of his points is that special guardianship orders are new. Therefore, we have sought to give ourselves greater flexibility than we have in the Bill in relation to adoption orders, both to allow us to have a widespread consultation in 2003 on the very issues that the noble Lord and the noble Baroness have raised, but also in the light of experience when the special guardianship orders come into operation. That is why we have left a number of matters to regulation. It gives us flexibility in the future.
I am very glad that the concept of special guardianship orders has been widely welcomed. All noble Lords feel that this is a considerable advance. In particular, we think they could be used for some older children, who may, for example, be being looked after in long-term foster placements, who do not wish to be legally separated from their birth parents, but who could benefit from greater legal security and permanence.
We also believe that special guardianship may apply to some children being cared for on a permanent basis by members of their wider family. Some minority ethnic communities have religious or cultural difficulties with adoption as set out in law. Again SGOs may well be appropriate.
The new order is intended to offer more than a residence order in terms of the security it brings and the support services to be made available. It is designed, as I have said, to be flexible enough to work in a range of situations.
I have listened carefully to the noble Lord, Lord Clement-Jones. As regards Amendment No. 103, I understand his wish for an independent view to be expressed to the courts. Perhaps it would be helpful if I explained the process that will be gone through before a court makes a special guardianship order.
New Section 14A sets out who may apply for a special guardianship order and the process for making an application. A person in whose favour a special guardianship order is made is described as a "special guardian".
Applicants must give three months' written notice to the local authority of their intention to apply for the order. The local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters. We intend to set out in regulations the matters to be covered by the report. It is intended to use these regulations to ensure that there is an appropriate process for assessing the suitability of prospective special guardians.
We shall consult on how the assessment process should work. However, it is envisaged at this stage that statutory guidance will require the results of earlier relevant assessments to be taken into account; for example, where the applicants are approved foster carers.
The court cannot make an order unless it has received a report of this kind covering the suitability of the people concerned to be special guardians. The involvement of the social services department in the process, and the requirements we make on what the report to the court should cover, will ensure that issues of the welfare of the child and their interests are investigated and reported to the court.
In addition, the Government intend to provide in-court rules that a CAFCASS officer be appointed in appropriate special guardianship proceedings. This too will be set out in court rules.
As I have made clear, we plan to consult thoroughly on the content of these rules, including when a CAFCASS children's guardian should be appointed. At this stage, and subject to consultation, we envisage that a CAFCASS officer is likely to be appointed in most cases where the court is considering making a special guardianship order. We shall want to consider carefully the circumstances when a CAFCASS officer should be appointed in cases where the court is considering varying or discharging a special guardianship order, particularly where this is with the consent of all the parties. That is why we need some flexibility.
It might not be appropriate or necessary to appoint the child as a party and have a children's guardian in cases where the application is for a variation of the terms of the special guardianship order—again—which is agreed by all parties. We would expect the child's views to be sought out and taken into account on all such questions. But it would not be necessary for a children's guardian to be appointed for that to happen. There are other routes to ensure that the court has the child's views.
Currently, children's views are generally put before the court in private law Section 8 proceedings within the CAFCASS officer's report on matters relating to the welfare of the child. Special guardianship orders will also be private law proceedings. The Lord Chancellor may make regulations specifying matters to be dealt with in any report. In addition, the court can make particular directions as to matters to be included in the report. Currently, for example, the officer must report on whether he considers that the child should be made a party to proceedings.
As my noble friend Lady Scotland intimated, the Government will shortly be undertaking wider consultation on how children are represented in private law Children Act proceedings. As she said this afternoon, the aim will be to try to find the best conduit for the child's voice, so that children's views may be heard and taken into account by the court in the most effective manner.
I understand why noble Lords may be keen to write into the Bill a presumption one way or the other. I simply counsel a degree of caution. We are dealing with a new order, with no direct current experience on which to draw. We must carefully consider what is proportionate and appropriate for the child in terms of separate representation and participation. But I have given considerable undertakings carefully to consider the consultation. Under the Bill as drafted, we have flexibility to make regulations and court rules. I assure the House that, in the light of our experience of such orders, we shall in time consider whether we have the provision right or need to make further adjustments.
I turn to the question of support services. Just as support services are important to adoption orders, they are clearly important to special guardianship orders—on that I have no disagreement with the noble Baroness, Lady Noakes. I return to the question of financial support. The noble Baroness, Lady Barker, emphasised in Committee the important role of financial support. We agree. That is why, just as we have for adoption support, I have tabled an amendment, Amendment No. 101, to make clear that the range of support services that local authorities must provide will include financial support.
Amendments Nos. 105 to 107 seek to pre-empt some of the consultation that we want to undertake during the next year or so. The combined effect of the amendments would be twofold. First, they would insert birth parents into the list of those who could request an assessment. Secondly, they would provide that all those listed in subsection (2) had a right to request an assessment for special guardianship support services, in the same manner as Clause 4 provides for adoption support.
I want to make clear to the noble Lord, Lord Clement-Jones, that I do not rule that out as a final outcome, but I am hesitant to go down that route at this stage. There is not the same strong case as there is for adoption that in every case where a special guardianship order is made we must provide specialist services for birth parents. Special guardianship is different to adoption. For a start, it will not involve the same type of lifelong permanent legal separation and transfer to another family. We know of the fundamental and unique issues to which that gives rise for birth parents and the need for specialist services to address them. The lifelong implications of adoption is one reason why it is appropriate to provide an automatic right to assessment for all those set out in Clause 3(1).
By its very nature, special guardianship does not raise the same issues. There may be circumstances in which there is separation, but in many cases there will not. Indeed, we anticipate that there will be contact in the vast majority of cases. We cannot say for certain that in every such case we should provide a right of access to specialised support services. The consultation may conclude that it would be appropriate to develop specialist services and provide a right to request access to them for all parents of children under special guardianship orders—or indeed, for grandparents, to take the point raised by the noble Lord, Lord Clement-Jones. But we cannot stand here and say for sure that that should occur in every circumstance.
The body of evidence simply does not exist for special guardianship orders. That I why I plead with the noble Lord to recognise that we are undertaking genuine consultation. We will listen carefully and have the future flexibility in the Bill as drafted to make adjustments as we proceed. The same argument applies to Amendment No. 103.
Finally, I turn to Amendment No. 108. I should spare the House from repeating what I said last week on Report about support services, but the argument is the same. The provision should not be written into primary legislation, because that would mean that special guardianship services would inevitably have priority over services for children looked after by local authorities, for older people and for vulnerable adults.
As ever, noble Lords know how keen I am to give as much discretion as possible to local authorities. In that, I look to the Liberal Democrats for support. There must be some discretion. However, I also spoke last week about the additional resources that we are ear-marking for support services and the methods that we shall undertake to monitor and manage the performance of local authorities. That applies as much to support services for special guardianship orders as to adoption support services. I reiterate what I said last week: there is no point changing adoption practice and introducing special guardianship orders if we cannot satisfy ourselves that local authorities will do the right thing. We will ensure that they do.