Clause 131 — General interpretation, etc.

Orders of the Day — Adoption and Children Bill — [3rd Allotted Day] – in the House of Commons at 7:30 pm on 20th May 2002.

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Amendments made: No. 248, in page 74, line 12, at end insert—

"'enactment' includes an enactment comprised in subordinate legislation".

No. 257, in page 74,, leave out lines 24 and 25.

No. 272, in page 74,, leave out lines 35 and 36.

No. 47, in page 74, line 48, at end insert—

'( ) Any power conferred by this Act to prescribe a fee by Order in Council or regulations includes power to prescribe—

(a) a fee not exceeding a prescribed amount,

(b) a fee calculated in accordance with the Order or, as the case may be, regulations,

(c) a fee determined by the person to whom it is payable, being a fee of a reasonable amount.'.—[Jacqui Smith.]

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

I beg to move amendment No. 227, in page 74, line 49, leave out subsection (2).

This amendment covers the definition of where a child has his home or is placed and responds to a point raised in Committee by Mr. Walter, which I undertook at the time to consider.

Clause 131 sets out the correct interpretation of various terms used in the Bill. Currently, subsection (2) provides that, in determining where a child has his home or is to be placed, any temporary absence by the child at school, hospital or elsewhere is to be disregarded. The hon. Member for North Dorset was keen to ensure that the courts could also discount temporary absences by the adoptive applicants in determining where a child has his home or is placed. We have looked at this matter, and we agree that it is important to provide the flexibility sought by the hon. Gentleman, to ensure that temporary absences by other parties, such as the adoptive applicants, could be excepted where appropriate.

The advice that we have received is that the most flexible way of doing that would be to remove subsection (2) entirely, which would leave the question of where a child had his home and with whom as an issue of fact to be determined by the court in each case. Advice to me suggests that the current subsection (2), which dates from the Adoption Act 1976, is unnecessary and might indeed have a restrictive effect on references to a place where a child has his home that are not covered by the exceptions listed. That would also be a risk with any amendment that attempted to exclude temporary absences by the adopters on the same basis.

The case law on "had his home" has it that this is a matter of fact to be determined in each case. It presumes regular occupation with some degree of permanency, but does not require continuous presence. It allows the court to take account of, and disregard when appropriate, any temporary absence for whatever reason by the child or any other party, but also enables the court to consider, rightly, the impact of any very lengthy absence. Government amendment No. 227 therefore seeks to deliver the same objective as the amendments tabled by the hon. Gentleman in Committee, but in a more effective manner.

On that basis, I hope that the House will feel able to support the amendment.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I thank the Minister for acknowledging that Back Benchers can table amendments in Committee that have substance, and that the Government can take them away and bring them back for consideration before the House.

Amendment agreed to.

It being four hours after the commencement of proceedings on consideration of the Bill, Mr. Deputy Speaker, pursuant to Order [16 May], put forthwith the Questions necessary for the disposal of business to be concluded at that hour.

Amendment proposed: No. 158, in page 74, line 51, at end insert—

'(2B) In this Act, a couple means—

(a) a married couple, or

(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.

(2C) Subsection (2B)(b) does not include two people one of whom is the other's parent, grandparent, sister, brother, aunt or uncle.

(2D) References to relationships in subsection (2C)—

(a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption, and

(b) include the relationship of a child with his adoptive, or former adoptive, parents, but do not include any other adoptive relationships.

(2E) For the purposes of this Act, a person is the partner of a child's parent if the person and the parent are a couple but the person is not the child's parent'.—[Mr. Hinchliffe.]

Amendment proposed to the proposed amendment: (a), Line 3, leave out—

'whether of different sexes or the same sex' and insert "of different sexes".—[Mr. Lansley.]

Question put, That the amendment be made:—

The House divided: Ayes 174, Noes 301.

Division number 246

See full list of votes (From The Public Whip)

Question accordingly negatived.

Amendment No. 158 agreed to.

Amendment made: No. 273, in page 74, line 51, at end insert—

'(2A) In this Act, "Scottish adoption agency" means—

(a) a local authority, or

(b) a voluntary organisation providing a registered adoption service;

but in relation to the provision of any particular service, references to a Scottish adoption agency do not include a voluntary organisation unless it is registered in respect of that service or a service which, in Scotland, corresponds to that service.

Expressions used in this subsection have the same meaning as in the Regulation of Care (Scotland) Act 2001 (asp 4) and "registered" means registered under Part 1 of that Act'.—[Jacqui Smith.]