"The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding)".
The amendment seeks to add the words,
"which if the child is of sufficient understanding shall be heard as expressed by the child".
I shall speak also to Amendment No. 2—which relates to Clause 1(4)(b), the needs of the child—and to Amendment No. 3, which seeks to safeguard the legal efficacy of ministerial guidance and affords the making of rules of court in implementation of these and other provisions of Clause 1.
Albeit interconnected, each of these three amendments is self-standing. There is no variation from the intendment of the Bill or from the status of Clause 1 as a building block.
In one way or another, these amendments serve the interests of the welfare of the child in respect of whom an adoption order is sought. These interests were judicially formulated by Judge Hodson, in the leading adoption case to which reference was made at Second Reading and in Grand Committee. I quote:
"they are such as would include the prospects and outlook for material and financial provision, education, general surroundings, happiness, stability of the home, and such like".
If your Lordships wish to read that statement in context, the reasoning can be found at page 719(c) of the list of appeal cases for 1971.
Such was the basis of that decision, which broke the mould of a series of decisions of the Court of Appeal favouring the blood tie now sought to be reintroduced by statute by amendment to this Bill. I refer to Amendments Nos. 51, 61 to 65 and 160, which are to be debated on Wednesday. This judicial formulation of the noble and learned Lord stands as authority applicable to the Bill as to the interests of children seeking adoption and after adoption.
As to Amendment No. 1, the question is whether the wishes and feelings of a child of sufficient understanding as to these prospects and outlook should be heard directly from the child in context with these judicial criteria, by the adoption agency and by the court, and whether entitlement should be asserted in primary legislation as mandatory justiciable provision, as proposed by this amendment. The question of the representation of the child, which is related to this, is dealt with in another part of the Bill and is covered by Amendments Nos. 110 to 115A.
I deal first with the idea of the child being "heard" by the court, according to the terms of the amendment. In this context, there are three practical assumptions which are consistent with extant procedure and which could be reflected in new rules of court to be made by the Lord Chancellor under the terms of Amendment No. 3. First, the wishes and feelings of the child are not to be expressed in open court. There will be no formal cross-examination. They will be expressed informally, in private, in the judge's room. The second assumption is that attendance at court is not compellable, but will be at the wish of the child to be heard, or at the invitation of the judge if the child consents. The third assumption is that the child shall have received independent advice and representation at court, which is the subject matter of the other amendments.
Attendance in order to be "heard" by the agency will, again, be at the wish of the child—who shall have received independent advice and will be represented. That provision is to be implemented either by ministerial guidance or by regulation as is proposed, for example, in Amendments Nos. 110 to 115A.
This amendment relates only to adoption but is wholly consistent with the Lord Chancellor's briefing paper of 4th October. Taking account of Article 8 of the European Convention on Human Rights, it disclosed the intention of government to revise arrangements for ensuring that children can participate in decision-making about their future and that the criteria of some courts as regards attendance are arbitrary and fail to meet the unique needs of each child.
Amendment No. 2 is concerned with the particular needs of the child—to which regard must be had by the court and by the adoption agency under Clause 1(4)(b). The criteria identified by Judge Hodson presently apply only on the making of an adoption order. It is proposed that they should continue to apply thereafter. It is suggested that the court that makes an adoption order should retain a discretionary supervisory jurisdiction both on the making of the order and thereafter.
There are two limbs to the amendment. The court is not obliged to make an order or recommendation under either limb. Under the first limb, an order for financial commitment would be legally enforceable and subject to review under new rules of procedure which could be made by the Lord Chancellor under Amendment No. 3. This in no way derogates from the jurisdiction of the High Court or any other court, or of any extant statute law. It is a purely discretionary jurisdiction, arising only on the making of an adoption order. But under the second limb, recommendations as to monitoring and other provisions in the interests of the welfare of the child are only advisory and not enforceable. Due account would no doubt be taken of any such recommendation, not only by the decision of the local authority but also, if necessary, on judicial review. There would be no direct enforcement of these recommendations. They would be purely advisory. The new jurisdiction proposed in Amendment No. 2 could be conferred only by primary legislation.
Amendment No. 3 is permissive. It allows the Secretary of State to give ministerial guidance; and it allows the Lord Chancellor, if so advised, to make rules of court. It is not mandatory and does not conflict in any way—nor is it intended to conflict—with a power to issue regulations.
There was discussion in Grand Committee on the legal efficacy of ministerial guidance. Neither the Minister nor I had the point resolved to our satisfaction. The Minister, having taken the advice of the department on "shall have regard to", relied upon the decision in Rixon, in which a grave breach of duty was held not to be justiciable because it was a target duty, so recourse could only be had to the Secretary of State. I have arranged for a transcript of that judgment to be left in the Library in case any of your Lordships wish to see it. I mentioned that judgment because it was of Byzantine complexity. In this fertile field for legal argument as to the status of guidance, I suggest, with respect, that the trigger proposed by Amendment No. 3 would confer legal efficacy on guidance under all provisions of Clause 1. This permissive power to issue ministerial guidance could afford a valuable aid to implementation for the adoption agencies as an adjunct to the fundamental review, dated October, that we have just received, and on which the Government should be congratulated. I beg to move.
My Lords, I congratulate my noble friend on his amendments, which he presented most cogently, as one would expect from him. I very much support the arguments that he advanced. He will forgive me, I hope, if I do not anticipate too far the remarks that I shall make on my own amendment, Amendment No. 4. However, I share my noble friend's view that the wishes of the child are of critical importance in adoption proceedings. We need to be sure that the procedures that we employ achieve the desired result.
I like the fact that Amendment No. 1 speaks of children's views being expressed in their own words, taking into account their level of understanding. I was glad to hear that this does not mean that the child needs to appear in court in person—however, he may, as my noble friend explained. Appearance in open court is, after all, an intimidating business for an adult, let alone a child.
I very much favour the thrust and the purport of Amendment No. 2. My noble friend's point about the court retaining a supervisory jurisdiction where it so decides, is attractive. Adopters, when they take responsibility for a child, assume obligations, which they should fulfil. Although, I confess, I am not completely clear about the circumstances in which a court's directions could be reviewed, no doubt that could be set out under the provisions of Amendment No. 3.
My Lords, I, too, welcome the proposals put forward by the noble Lord, Lord Campbell of Alloway. In moving his amendment, the noble Lord gave the House a flavour of our discussions in Grand Committee. We had many searching and interesting discussions, during which many people on different sides changed their views and their minds.
These amendments are extremely helpful. We have spent much time during the passage of this Bill discussing the role of courts. We have talked at considerable length about the extent to which court procedures can be a barrier to finding the right solution for a child. I remind noble Lords that the Bill's founding principle is that the welfare of the child throughout his or her life shall be paramount. It is helpful to have at the top of the Bill a system that will work in harmony with that proposal.
It is helpful to start proceedings with a reminder that the voice of children is the one factor that has greatly concerned many of us. I shared with the House earlier the fact that when the Bill first appeared a few months ago, my colleagues and I tried to read it each from a different perspective—from that of an adoption agency, a prospective adoptive parent, and a child. It has been an instructive way to set about looking at the legislation. We have been concerned that the primary legislation has not sufficiently safeguarded the voice of the child. The very concise amendments proposed by the noble Lord, Lord Campbell of Alloway, go to the heart of the Bill in a helpful way. I am therefore pleased to lend them our support.
My Lords, I support the view, expressed in this and other parts of the Bill, that the voice of the child should be heard. My point is slightly peripheral; the noble Lord might consider including it in his consultation document. Often, when a child has given its opinion, it does not understand why those views were not, or apparently not, taken into account. It is important that if children are consulted, there should be a clear understanding that it must be explained to them carefully why their views appear not to have been taken into account if that is the case.
My Lords, having spoken at a similar stage about representation in Grand Committee, I am glad to see the noble Lord, Lord Campbell of Alloway, attempt to put that issue at the top of the Bill, as I was keen to do. He has done that very subtly. As he said, the provision allows flexibility whereby the approach could change over time with experience. The Lord Chancellor's rules can be changed without going through a legislative process. I do not want to anticipate our later discussion on other amendments about representation but I was a little concerned at the different approach on human rights, to which the noble Lord also referred, taken in documents supplied to us from lobbyists and from the Lord Chancellor, through the noble Baroness, Lady Scotland. She concentrated on the rights of parents under Article 8 of the ECHR, whereas many people have concentrated on the right of children to have representation under Article 6. That is yet to be determined during the passage of the Bill. The noble Lord, Lord Campbell of Alloway, has suggested an interesting approach to the extremely important idea of representation. I do not mean representation of feelings and wishes, but representation of the interests of the child, which is quite a different matter. The noble Lord has triumphed in a way by giving us another chance to make certain that we get the human rights aspect of the Bill correct in every way. I hope that the Minister will be able to take up the interesting points that we have all raised.
My Lords, I echo the remarks of the noble Baroness, Lady Barker, in thanking the noble Lord, Lord Campbell of Alloway, for his constructive comments, which very much bear out our discussions in Grand Committee. I have considerable sympathy with the intention behind the amendments and I assure the noble Lord of the Government's wholehearted support for the broad principles that have prompted them.
I shall set out how I believe the Bill already provides what is needed in primary legislation in this area and give the noble Lord some assurance how we intend to ensure that adoption agencies and courts follow those principles in their practice.
The intention behind Amendment No. 1 is to ensure that the voice of the child is properly heard. The Government strongly believe that the child's wishes and feelings should be actively sought and fully taken into account at all stages of the adoption process. That is a key value underpinning our national adoption standards, which will themselves be subject to Section 7 guidance—although I recognise that I need to come back to the point that the noble Lord raised about that guidance. Those standards specify that,
"every child should have his wishes and feelings listened to, recorded and taken into account. Where they are not acted on, the reasons for doing so will be explained to the child and properly recorded".
I take the point raised by the noble Lord, Lord Northbourne, about future consultation. I shall take up that matter to make sure that we consider his specific point.
The Bill underpins that philosophy. Under Clause 1(4)(a), courts and adoption agencies will be under a positive obligation to ascertain the child's wishes and feelings about all decisions relating to adoption and to take them into account, considering the child's age and understanding. They will need to do that by direct consultation with the child if the child is old enough. The assumption must be that even relatively young children will have a view that must be taken into account. Agencies will be expected to ascertain that directly.
I believe that the amendment is also aimed at ensuring that the child's words, as well as his/her wishes and feelings, should be communicated to the agency and the courts. Again, I have considerable sympathy, but it is more appropriate to leave the precise form of how the child's wishes and feelings are communicated to individual agencies and courts. We need to allow some flexibility in practice so that skilled professionals, whether they be social workers or officers of the courts service, can take the approach that they think best in communicating the views of children.
Our intention is that the precise procedure will be set out for adoption agencies in regulations and guidance and for the courts in court rules and guidance. The new regulations and guidance that we will make to accompany the implementation of the Bill will place explicit obligations on adoption agencies to consult the child, to record their views, to ensure that their views are considered in the decision-making process—for example by adoption panels—and, where they are not acted on, to record the reasons why not.
The detail will be subject to consultation but, for example, before any match between a child and a set of prospective adopters is considered by an agency adoption panel and before any decision is made, we expect the views of the child on the suggested match to be sought and taken into account, in the light of the child's age and understanding. Our current draft practice guidance to adoption agencies to support implementation of the national standards already makes that point.
We would expect an adoption agency social worker to consult directly with a child of sufficient age and understanding and to communicate clearly the child's views to the agency adoption panel during the decision-making process. In doing so, it may be helpful for the worker to report directly what the child has said, but we need to leave that to professional judgment in each case.
Court rules will provide in certain circumstances that a children's guardian must be appointed to represent the child. We shall come to the detail of that on Amendment No. 4. Our intention is that a guardian will be appointed in placement order cases and in adoption order cases where the order is contested, though the courts will have the discretion to appoint a children's guardian in other cases when it is considered appropriate. The duties of the children's guardian will include ascertaining the child's views through direct contact and reporting them to the court.
Even where there is no guardian, the child's views will need to be conveyed to the court through the report to the court that every adoption agency must produce under Clause 43 and, potentially, through any general CAFCASS officer report that the court may commission under the powers in Clause 100. Again, the purpose of a report will be to communicate the child's view clearly to the court. Again, I think it best not to specify a precise format on the face of the Bill. It is also good practice among many members of the judiciary to consult the child in a sensitive and informal manner so that the judge can hear from them directly in their own words when they are of a sufficient age and understanding. I very much want to encourage that, but I do not think it would be wise to provide rigidly that that must happen. Even with the best intention, the court setting and the legal process can be intimidating and bewildering for children. Some cases may be very difficult for the child, particularly those that are contested by the parents or in which the child has been subject to past abuse and neglect. In such cases, it might be more sensitive and less distressing for the child not to have to attend court, even if it is not in open court, or to experience the legal process directly, but for their views to be taken by a professional CAFCASS officer or social worker, trained and skilled to work with children in precisely these difficult circumstances, and for those views then to be relayed to the courts.
Whatever precise form the process takes, Clause 1(4)(a) will oblige the courts to consider the child's views in coming to any decision. It is envisaged that guidance to the courts concerning the new Act will cover the need to explain how the child's views were taken into account in coming to the final decision.
Amendment No. 2 has two objectives. First, it would allow the court, when making an adoption order, to make a binding direction as to the financial support that the parents are to provide to the adopted child. I have no doubt about the importance of ensuring the proper commitment by the parents. However, as was discussed in Grand Committee, I think that the best means of establishing that is through the assessment process, which probes deeply into the applicants' motivation for adopting and their commitment to meeting the needs of children. It is a testing and intensive process. In the years that have led up to the publication of this Bill, many have argued that sometimes it is too intrusive. Last week we published our consultation document on providing our fundamental review of the assessment process. That document sets out many of the factors that we think should play a role in the process of determining the adopters' suitability to adopt. The court will have the benefit of the adoption agency's views before it, drawn from the assessment, when it considers whether to make the order.
Once the order has been made, the approach that has always been taken in this country on adoption is that the adopters become in law the child's parents, with the same rights and obligations as any other parents in respect of their child. I would be uncomfortable with changing this by providing that the court can by order impose certain financial obligations at the point of adoption. If the parties have gone through the assessment process and demonstrated their commitment, I think that we should not—as we have never done—intervene in their new family life.
I well understand that we have to ensure that support services are there to help the new adoptive family when they need it; that is the intention behind Clauses 3 and 4, as we debated at length in Committee. New adoptive families and adopted children will have a right to request an assessment of adoption support, and local authorities will have a new clear duty to provide a wide range of support services which will include financial support.
I come to the second objective of Amendment No. 2—that the court should make recommendations as to the services and monitoring that should be in place to support the adoption. I think that this point also highlights the crucial role that support services should play in supporting adoptions and helping them to succeed and to last. This is certainly something that should be covered in the adoption agency's report to the court, as is currently the case with adoption allowances. In adoption support, however, we want a situation in which a package of support services is put in place earlier than the final adoption order—at the time that a child is placed with the prospective adopters—and regularly reviewed and monitored from then on. That is how we see the adoption support provisions in Clauses 3 and 4 operating, with the addition that the adoptive family and child will be free at any time after the adoption to request a new assessment of their needs.
Therefore, rather than being something that the court recommends, we see the support as something that the adoption agency or local authority should be ensuring is put in place before the parties reach the final adoption order hearing, in consultation with the adoptive family and the child. We are therefore talking about responsive support services, both at that point and subsequently, accessed at the initiative and request of the adoptive family to support them, rather than something intrusive imposed by agencies, authorities or the courts.
Amendment No. 3 also returns to an issue we discussed at some length in Grand Committee—the Secretary of State's power to issue guidance, and the Lord Chancellor's ability to make court rules. Dealing with the most straightforward point first, I reassure the noble Lord, Lord Campbell of Alloway, that Clause 137 provides that the Lord Chancellor may make court rules dealing with all matters of procedure connected with this legislation. We are confident that this wide-ranging power will allow us to make provision as to the matters that concern the noble Lord—such as how the voice of the child is to be heard in court proceedings, including issues about the representation of children, the appointment of CAFCASS officers under Clause 100 and party status. I assure noble Lords that we shall of course be consulting on the detail of this provision before full implementation of the legislation and that that will shape the final rules accordingly.
I fear that, as far as the noble Lord, Lord Campbell, is concerned, we did not satisfactorily resolve the issue of the Secretary of State's power to issue guidance. I have taken advice, and I am assured that Section 7(1) of the Local Authority Social Services Act 1970 provides that local authorities must act under the general guidance of the Secretary of State in exercising their social service functions, including the exercise of any discretion. Thanks to an amendment already made to paragraph 14 of Schedule 3 of the Bill—
My Lords, it was paragraph 14 of Schedule 3.
As a result of that amendment already made to the Bill, local authority adoption functions are included in the list of social services functions in Schedule 1 of the 1970 Act. The effect is that the Secretary of State may issue such guidance to local authorities in respect of their functions as adoption agencies and their other adoption functions under the Bill.
I am assured that the effect of this guidance is as set out in my earlier statements on this matter. Irrespective of the nature of the function, if it is a social services function under the 1970 Act, then local authorities should follow the path set out in the guidance, departing from it only where they have a good reason to do so. However, they do not have the freedom to take a substantially different course. That is the position established by the case of ex parte Rixon, to which the noble Lord, Lord Campbell, referred. Although that case concerned the local authorities' conduct in following guidance concerning a target duty, it is my advice that the principle established by the judgment applies to guidance covering all of local authorities' social services functions under the 1970 Act, and that the judgment stands and has not been challenged.
My practical experience is that Section 7 guidance is viewed in this light by local authorities and is a highly effective means of ensuring that guidance is complied with. It is significant that, in the past four or five years, a number of noble Lords—when wishing the Government to determine that local authority social services should carry out a particular duty or responsibility more effectively—have consistently asked me to issue Section 7 guidance. I am glad to say that, on one or two occasions, we were able to agree to such a request. I believe that that demonstrates the effectiveness of such guidance.
I have a great deal of sympathy with all the points that the noble Lord, Lord Campbell, seeks to raise. However, I believe that these points are covered by the Bill's arrangements and by our ability through consultation and regulation to meet the points he has raised.
My Lords, before the Minister sits down, both today and in Grand Committee, he placed great reliance on adoption agencies and local authority social services departments taking account of the views of the child. He has, as he will recall, mentioned that over and over and over again; indeed, today he has said that there will be new guidance partially to that effect. That is all very well, and the views of the child will be taken into account in respect of the understanding and mental ability of the child of the relevant age. However, where the views of the child are not acceptable or partially unacceptable to anyone including the courts, will the reasons for that be transferred back to the child? I think that that is vitally important.
My Lords, I had hoped that I made it clear in my response to the noble Lord, Lord Northbourne, that, when a child's wishes ultimately have not been deferred to, good practice will always entail ensuring communication of the reasons why. Although we shall take the issue forward in our consultation on the Bill's application in practice, I think that we need to follow that principle.
My Lords, clearly, if a child has been placed as a result of an order, there will have to be careful monitoring of how the child interacts with the family concerned. If a placement did not work out and if an adoption order was being contemplated, I should expect that to be a matter for serious consideration by the court.
My Lords, I thought that I had answered it. I believe that I said that as a general principle the child should be communicated with in relation to a decision, particularly if the child's views had not been deferred to. I believe that I said that I would consider that point in the consultation that we are undertaking in relation to future guidance and regulations.
My Lords, I should like to thank all noble Lords who have spoken. I listened with great care to what the Minister said. Sympathy is all very well but it does not actually cover the practical necessities of this situation. I say at once that the noble Lord has persuaded me that it is in a sense otiose to move Amendment No. 3. He gave assurances about consultation and referred to two passages in the Bill relating to the powers of the Lord Chancellor and to the powers of the Secretary of State to issue guidance. I, for my part, am not wholly satisfied by any means with the status of the guidance. I am anxious not to turn this occasion into a technical legal argument in a minefield but I do not agree with the Government on this matter.
As regards Amendments Nos. 1 and 2, with respect I remain wholly unconvinced by what the Minister said. I refer to a sort of departmental exercise defending the propriety of the Bill as covering everything that needs to be covered. However, it does not. The fundamental provisions of the Bill are the bedrock provisions of Clause 1 entitled:
"Considerations applying to the exercise of powers".
Nothing that the Minister has said has convinced me that there is not an overwhelming case, supported by all noble Lords who spoke on Amendment No. 1, for it to be put in due course to the House when I have dealt with Amendment No. 2.
I do not wish to take a lot of time. Amendment No. 2 contains fundamental bedrock powers. It is not concerned with detail. The speech of the noble Lord on Amendments Nos. 1 and 2 was concerned with whether the detail of the Bill was sufficient to carry the point of principle, but that is a cart and horse argument. We are concerned in Amendment No. 1 with bedrock provisions of principle and in Amendment No. 2 with whether adoption agencies can do the job. Up to a point they still can. As I envisage it, they would do their job and report to the court. However the adoption agencies have no means of enforcement. As a matter of principle, in the interests of these children and wholly consistent with the concepts of Judge Hodson, there should be an enforceable supervisory power.
I do not wish to take up more time but I ought to deal with the two points that have been made. The noble Earl, Lord Howe, was right to assume that the rules of court would be dealt with by the Lord Chancellor. That is totally correct. The noble Baroness, Lady Thomas, was totally right in her references to the European Convention on Human Rights to draw attention to what could constitute a muddle in the Lord Chancellor's brief. However, any possible muddle is cured in the following extract which I take word for word from the Government's brief. I refer to the intention of the Government to revise arrangements for ensuring that children can participate in decision making about their future. That is apparently accepted as the intention of the Government. In those circumstances I believe that it is right to test the opinion of the House.
had given notice of his intention to move Amendment No. 2:
Page 2, line 24, at end insert—
"( ) The court, on or after making an adoption order, may give directions (subject to review) as to financial provision to be made for the child by the adopter, or adopters, which shall be enforceable; and may make recommendations as to provision for monitoring and other services as appropriate for the welfare of the child."
My Lords, in moving this amendment, I shall speak also to Amendment No. 155.
My noble friend ably focused our minds on the issue of the voice of the child during the adoption process. Like him, I believe that to be extremely important. I am dissatisfied by the extent to which the Bill is capable of ensuring that, during the adoption process, the views of the child are given the fullest possible weight.
Adoption is the most dramatic interference with the right to family life that there is. It is also irrevocable. As such, it is the most serious order that can be made in respect of any child and their birth family. In many cases, adoption involves termination of direct contact between the child and his or her birth family. In all cases, it severs all legal rights and links with that family.
Clause 1(4)(a) is of course welcome in that it provides that the court or adoption agency must have regard to,
"the child's ascertainable wishes and feelings".
However, I am left with the concern that that is really not enough. There should be a clear mechanism in the Bill to ensure that in all cases the child's view is fully and properly represented to the court independently of the adoption agency, the applicants and the birth parents.
"State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".
The Explanatory Notes to the Bill indicate that the rules of procedure will provide that the child will automatically be a party to proceedings in placement order cases and will be able to apply to the court for leave to be made a party to adoption proceedings.
I believe that we would all feel far easier about the whole issue if consultation took place on it at the earliest possible date. It would be helpful to have a better idea, if the Minister can give it, about the detail of the rules and the timetable for consultation. Ideally, I should like to have been able to consider the draft rules during the passage of the Bill. That is the main point of my Amendment No. 155, which is intended primarily as a probe.
Amendment No. 4 proposes that placement proceedings, which will be closely linked to care and adoption proceedings, should be specified proceedings under Section 41 of the Children Act 1989. In specified proceedings, unless satisfied that it is not necessary to do so, the court appoints an officer of CAFCASS for the child concerned in order to safeguard his or her interests. That means that the child's wishes and feelings would be reported to the court independently of the adoption agency, the birth family or the applicants in order to ensure proper investigation and presentation of the child's views and welfare.
In my view, that process would discharge the court's duties under Clause 1 in the best possible way. It would ensure a thorough investigation of the background and circumstances of the adoption application. Even when there is consent or when, for example, it is a step-parent adoption, such an investigation may well be required. It would also act as an independent check of social work practice. If, in the child's view, there were a problem with the proposed adoption, then the children's guardian would become aware of it and could alert the court appropriately. In that way, every child would have an independent voice and, in judging the weight to be given to the views expressed, due regard would be paid to the child's maturity rather than simply to his or her chronological age.
I hope that the Minister will be able to respond in a positive way to my amendments, which I believe are in keeping with much of what he has already said today. I beg to move.
My Lords, the amendment moved by the noble Earl seems to me to provide a better way of obtaining the objective that he seeks to achieve than the method suggested in the brief that we received very recently from the noble Baroness, Lady Scotland.
In that brief it is pointed out that care proceedings—of course, children who are placed are in the care of the local authority—are specified proceedings under Section 41. It is pointed out, too, that the Government propose that placement proceedings should also be made specified proceedings by amending Section 41 of the Children Act or by issuing regulations under that section. However, that will be relevant only to placement proceedings.
Personally, I believe that what the noble Earl, Lord Howe, proposes—that is, setting out the matter on the face of this Bill—is a better way to proceed because it is more transparent and more obvious. However, it seems to me that he has also widened the issue because he has introduced adoption orders as specified proceedings. I am in some doubt as to whether the Lord Chancellor's brief, which talks about placement proceedings, includes adoption orders.
However, it seems to me that, until an adoption is made, the child is still in the care of the local authority. Since adoption orders can be contested under certain circumstances, notwithstanding that there has been a placement previous to that—for example, if the birth parent withdraws the consent, the adoption can be contested—it seems to me that, in this case as well, the wording of the noble Earl's amendment is broader and, therefore, more desirable than that expressed in the Lord Chancellor's brief. I hope that I have understood these rather subtle points correctly. I rely on the Minister and the noble Earl, Lord Howe, to tell me whether I have made a mistake.
My Lords, the effect of Amendment No. 4 would be that in every placement order and adoption order case the court would be under a duty to appoint a CAFCASS children's guardian to represent and act on behalf of the child unless the court was satisfied that the child's welfare did not require it.
As I said in Grand Committee, the Government will consult on the issue of the representation of children in proceedings under this Bill in drawing up the court rules that will accompany implementation. But perhaps I may give an outline of how we currently envisage addressing these issues.
With regard to placement orders, we agree with the intention behind the amendment. If a placement order is made, a child is removed from his or her natural family. The noble Earl is right. In most cases, that will be against the wishes of the parents. It also represents an interference with a family's right to a private family life under Article 8 of the European Convention on Human Rights, comparable to placing a child in care under a care order.
Care proceedings are specified proceedings under Section 41 of the Children Act. That means that a CAFCASS officer is appointed to safeguard the child's interests and a solicitor is appointed to represent the child.
Our current intention is to provide for placement proceedings to be made specified proceedings within the meaning of Section 41 of the Children Act. By virtue of Section 41(6)(i), we can add to the list of specified proceedings by amending court rules.
We plan to consult on the rules generally. However, we do not currently envisage that adoption proceedings will be specified proceedings, subject of course to consultation. The new provisions relating to consent and placement should mean that the main issues will already have been dealt with before the making of a final adoption order.
We need to be very clear that one of the main aims of the placement provisions in Chapter 3 of the Bill is to reduce the number of contested final adoption order hearings. Where consent to placement has been given or not withdrawn, or where a placement has been made, the final adoption order hearing will be contested only if the parents seek and gain the leave of the court on the grounds that there has been a change in circumstances.
In addition, we need to remember that many adoptions are made in non-contested cases where parental consent has been given and all parties are agreed on the course of action. We believe that in such cases it would be disproportionate and unnecessary for a CAFCASS officer and a separate solicitor to be appointed automatically to act for the child at the final adoption order stage. It is important to remember that that does not mean that the court will not have a chance to consider the views and interests of the child. The child will of course be at the centre of the case and the court will be bound by its obligations.
In agency cases, the court will have before it a detailed report from the agency on the placement and, in non-agency cases, such as step-parent adoptions, it will have a report from the relevant local authority into the circumstances of the case. As I shall describe, we also envisage that the court will be able to appoint a CAFCASS officer to provide the court with a general welfare report on the case and on the interest of the child.
However, there should be discretion. It should be open to the court to decide in the light of that whether or not to appoint a CAFCASS officer. That must be seen in the context of the work undertaken in the late 1990s and of the report of the PIU entitled, Prime Minister's Review: Adoption. One of the key features of that report attempted to deal with delays in the system and to ensure, within a clear framework of responsibility and tough assessment, that such adoptions take place as speedily as possible. That is where we believe we have the balance right; that is, by placing the critical stage of the placement order where there will be provision for representation.
There is a strong case for the court having flexibility in uncontested cases which would take place at the adoption order stage. Representation of children and the duties of CAFCASS officers in proceedings will be considered in the wider work on rules of court following passage of the Bill when we consult key stakeholders and organisations to ensure that new adoption rules provision is made for the child's wishes and feelings to be considered within adoption. An initial scoping study undertaken by the Lord Chancellor's Department indicated that flexibility is key in that area. Not all children want to be parties in court proceedings. That does not mean that we cannot ensure that their voices are heard.
We shall consider the points raised by the noble Earl when we consult on detailed proposals in 2003 in preparation for the implementation of the Bill in 2004. I would argue for the flexibility provided by secondary legislation.
I turn to Amendment No. 155, and to our earlier discussion on this point. We believe that it is important that children are kept informed of progress in relation to court proceedings in a way appropriate to their age and understanding. However, Amendment No. 155 would have the effect that children should receive formal notification from the court of a placement or adoption order hearing concerning them.
We do not agree that the child must be notified directly of the proceedings. That would not be practical in all cases. Formal notification in a document sent by the court and addressed to the child could also be distressing and confusing. We need to remember how intimidating the court process can be, with the best intentions in the world. Rather, we would expect, under Clause 1(4)(a), that the adoption agency and the court must have regard to the child's ascertainable wishes and feelings, in the light of his age and understanding. The child's wishes and feelings should be actively sought and fully taken into account at all stages of the adoption process. That is a key value which underpins our national adoption standards. The adoption agency will keep the child informed at all times of the various stages of the adoption process.
As we discussed in the debate on a previous amendment, in a good number of cases it may be appropriate for the child to be involved, to visit the court and to see the judge. However, we need to be sensitive to the individual needs of children. We must avoid any sense of burdening them with a decision.
I understand the sentiment behind the noble Earl's amendment that children should always be informed; that their views should be sought and considered and that they should be involved as far as is appropriate for the child. I hope that he will understand why I cannot support the amendment.
My Lords, this has been a useful debate. I am grateful for the support of the noble Baroness, Lady Thomas of Walliswood, and, indeed, for the remarks of the Minister. It was helpful to hear the Government's intentions as regards this area of the Bill in a little more detail.
However, I was disappointed by part of the Minister's answer. It is pleasing that the Government intend that placement proceedings should be specified proceedings under the Children Act, as suggested in my amendment, but disappointing that they do not feel that the same should apply to adoption proceedings.
I return to the point raised by the noble Baroness, Lady Masham, who is almost but not quite in her place. If, in the child's view, there is a problem with the proposed adoption, it is essential that the child should be heard at the adoption hearing. We should be able to guarantee that.
My Lords, I thank the noble Earl for giving way. Does not he agree that in non-contested cases at the adoption order stage it would be disproportionate and unnecessary for the child automatically to have a CAFCASS officer and a separate solicitor appointed, and that that is why discretion is needed?
My Lords, I was coming to that point. I do agree. However, as the Minister will see, the wording of my amendment allows for that. It permits the court to decide that a CAFCASS officer is not necessary in a particular case. The difference between the Government's approach and my approach is the presumption. I believe that the presumption should be reversed in favour of representation of the child in adoption proceedings. Only if the court were satisfied that it is not necessary to appoint a CAFCASS officer to safeguard the interests of the child should it not appoint such an officer. I realise that to some people that is dancing on the head of a pin. However, it is important. The court would have flexibility of the kind referred to by the Minister, but would come to it from a different point.
Once again, we are hampered by the lack of draft regulations and the fact that consultation has not yet taken place. The Minister has been most helpful. However, I have not heard a satisfactory argument against the proposal I have advanced, which rests on two concerns: the need to ensure that a court can be satisfied that in appropriate cases the ascertainable feelings and wishes of the child have been represented, and our obligations under the UN convention. I am not convinced that those obligations are fully met under the existing provisions of the Bill. I am not sure that the Minister referred to that.
My Lords, Article 12 of the United Nations Convention on the Rights of the Child, to which the noble Earl referred, provides that a child should be heard in any judicial or administrative proceedings affecting him or her and should do so either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law. My advice is that under both the existing 1976 Act and the new Bill when implemented, our system provides for both scenarios. CAFCASS officers will report to court on matters relating to the welfare of the child under Clause 99(3)(b). In addition, we shall allow in rules for a child to be made a party to proceedings where it is appropriate to do so acting either through a CAFCASS officer or, if of sufficient maturity, instructing a solicitor direct, to which I have referred.
At the end of the day my concern regards the rather different presumption on which the court would operate. I believe that there is a risk that too many cases would fall unnecessarily for full representation. That would cause undue delay, which, for many children involved would be unnecessary.
moved Amendment No. 5:
Page 3, line 27, leave out from "information" to end of line 29 and insert "and
(b) any other services prescribed by regulations, in relation to adoption.
( ) The power to make regulations under subsection (6)(b) is to be exercised so as to secure that local authorities provide financial support."
My Lords, I shall refer also to Amendment No. 6 in the name of the noble Earl, Lord Howe.
On the first day in Grand Committee, we debated the provision of financial support—which is not surprising because the current provision is patchy, with little consistency between individual local authorities. We have already made a commitment to improve the availability of financial support for adoptive families but I promised to take the issue away, to see whether it would be possible to make things clearer in the Bill.
Amendments Nos. 5 and 6 amend Clause 2(6), which provides that adoption support services include counselling, advice and information in connection with adoption, and other services as prescribed in regulations. Amendment No. 6 provides that the list of adoption support services included in the regulations must include financial support. The intention is to ensure that local authorities provide financial support as part of their adoption support package.
It has always been the Government's intention that the list of adoption support services that local authorities must provide, which will be set out in regulations, includes financial support. I considered whether it would be appropriate to accept the noble Earl's amendment but I have concerns about its effect as worded. In technical terms, it would be preferable to deal with the issue in a slightly different way.
Regulations under Clause 2(6)(b) will not only set out the adoption support services that local authorities must provide but which services should be provided by voluntary adoption agencies. Adoption support agencies will be regulated under Clause 9. The regulations will also be used to set out which adoption support services an organisation must be registered as an adoption support agency to provide. We would like to retain the flexibility to decide and later review whether financial support is a service that only registered organisations may provide.
It is not clear that it would be appropriate to prevent an organisation such as a charity from providing a lump sum of money to an adoptive family if it wished to do so, unless it were registered as an adoption support agency. Registration is primarily concerned with ensuring the quality of the service provided. Therefore, registration may not be necessary for the purpose of providing financial help to adoptive families and others affected by adoption. I therefore tabled Amendment No. 5, which sets out that regulations under Clause 2(6)(b) will provide that local authorities must provide financial support.
Amendment No. 6 sets out that the power to make regulations in Clause 2(6)(b) setting out the additional services to be included in the definition of adoption support services must be exercised so as to secure that local authorities provide financial support. Regulations will set out the kind of financial support that local authorities must make arrangements to provide. It is likely that they will include travel expenses for introductions and contact visits; settling-in expenses, including furniture such as a bed or washing machine; house alterations and adaptations; provision of transport; purchase of toys, clothing or other articles; and respite care.
Amendment No. 5 will make a significant difference to the provision of financial support across the country. I hope that the House will feel able to accept it. I beg to move.
My Lords, we are grateful to the Government for taking on board the points that I made in Grand Committee about the need for regulations to include financial support. Amendment No. 5 attempts to achieve the purpose of Amendment No. 6—that regulations must cover financial support.
We are glad to support Amendment No. 5, although I do not fully understand why the Government need to add 22 words to the Bill, whereas my amendment merely substitutes one word for another—but I am prepared to take the Minister's word for it.
The real issue remains the content of the regulations. The noble Lord has given us a small insight but we did not debate that aspect in great detail in Grand Committee because the Government had only just published their consultation document, Providing Effective Adoption Support and most of us had not read it. That document was a disappointment. While it outlined the main complaints made about current financial support, its only definitive statement—in Chapter 4, paragraph 8—was that the proposed regulations will also make provision for means testing of financial support and the provision of financial support, subject to conditions.
That document contained no commitments about ending the post code lottery or the relative position of fostering. Nor was there any reference to the ending of budgetary constraints as a reason for non-provision. While I was grateful for the noble Lord's comments about the regulations' likely content, I did not hear any reference to the matters to which I have just referred. Consultation has ended and I hope that the noble Lord will say something about those aspects.
The Government amendment is welcome in principle but that welcome will be somewhat hollow if the amendment is not backed up by dealing with the real issues that exist at present in relation to financial support.
My Lords, I was greatly heartened to see Amendment No. 5 but my delight was slightly tempered by the speech of the noble Lord the Minister—particularly when he reeled off the types of support that he envisaged being covered by regulations. To my recollection, they were all either one-off or episodic payments. Much of the work that has been done by the department and the bodies concerned with adoption has focused on the recurrent costs that people must meet—often as a result of having within their family children with potentially difficult behavioural and health needs—and the disparity between the provision of payments for fostering and adoption.
I am sorry to register a fair amount of disappointment. The point was made strongly by adoption professionals that children's needs change. What may be an assessed need at the time of adoption might not be relevant for long. Children grow and change. The noble Lord's speech did not reflect that point. I was ready to welcome Amendment No. 5 with open arms but I will have to close them again and register some disappointment.
My Lords, having listened in Grand Committee and having tabled an amendment that I thought met all the concerns, I am sorry that it has been greeted with such a lack of enthusiasm. The assessment for adoption support services is not a once-for-all assessment. Throughout the process, people ask for a further assessment. I fully accept that circumstances change.
As to the issue of consistency, I agree that if one looks at the record of local authorities, it is striking how inconsistent they are in relation to financial support. We want that matter put right. I hope that we shall soon turn to the general issue of adoption support services and how the Government intend to ensure that there is consistency of approach and that adoption support services are of the necessary quality and extent.
So far as concerns the range of financial support, in my brief comments I meant only to give an indication of the kind of financial support that would be available. We shall set out in regulations the financial support that we expect local authorities to provide. As the noble Baroness suggested, there are one-off payments, time-limited payments and regular adoption allowances. An adoption allowance, for example, may be paid to an adoptive family to cover the costs of travelling in order to maintain contact with the birth family. These are the issues that we shall take forward in the draft regulations. But I do believe that this is a significant step forward and that it should be welcomed.
My Lords, in moving Amendment No. 7, I shall speak also to Amendments Nos. 9 and 159. Noble Lords who have looked closely at this amendment may have noted that the Marshalled List states that it is an amendment to Clause 2. It is in fact an amendment to Clause 3. I hope that that has not caused any confusion.
Clause 3 concerns the adoption service. Amendment No. 7 adds both siblings and grandparents to the categories of persons whose needs should be met by the adoption service under Clause 3(1)(a). Siblings and grandparents will thus automatically be included within the persons for whom a local authority must, on request, carry out a needs assessment for adoption support services under Clause 4(1)(a). Amendment No. 159 is simply a definition of "sibling" as a brother or sister of the full or half blood.
We debated this issue in the context of a different amendment in Grand Committee. My particular concern at that stage was the provision of needs assessments for siblings. But the noble Baroness, Lady Barker, spoke eloquently about the needs of grandparents. Both categories are important. It is sometimes sadly necessary to separate sibling groups in adoptions and the needs of those not the subject of the adoption should be specifically covered. Grandparents are often the innocent bystanders in adoption cases, with their needs often overlooked.
The Minister was moderately encouraging in Grand Committee on the question of siblings by saying that they would be included within the regulations which would give them rights to needs assessments under Clause 4(1)(b). He said:
"It is the Government's intention that they [the regulations] will include birth and adoptive siblings of adopted people and children who may be adopted".
But he immediately qualified that by stating:
"However, we shall consult widely on the contents of those regulations".—[Official Report, 27/6/02; col. CWH 64.]
That "however" is a very significant word. We cannot take it as given that the regulations will ensure that siblings are entitled to needs assessments under the Bill, which is why Amendment No. 7 seeks to put the needs of siblings beyond doubt.
The Minister was much less encouraging in the case of grandparents. He said in effect that they could take pot luck under Clause 4(2), which empowers but does not require a local authority to carry out a needs assessment for the persons not within the automatic categories. My amendment would put them in that automatic category.
Amendment No. 9 also deals with needs assessments. It amends Clause 4(2), the discretionary assessment clause, so that local authorities can consider carrying out a needs assessment not only for the applicant but also for any other specified person. That could cover applications on behalf of those who lack capacity to make applications themselves. It could cover the needs of a person's carers. And, possibly exceptionally, it could cover people to whom an adopted child is particularly close but with whom the child has none of the specified relationships.
Amendment No. 9 does not require the local authority to do anything, but it allows it to widen the net of assessments in appropriate circumstances beyond those actually making applications.
I am sure that the Minister will attempt to blind us with regulations and guidance, the content of which may not even yet be in draft within Richmond House. The amendments do not threaten the Bill. Rather they make sure that the Bill will be operated with compassion to a wider group of people affected by adoption. I beg to move.
My Lords, perhaps I may say to the noble Baroness, Lady Noakes, that the regulations appearing in the Bill are designed to give greater flexibility. There is always a tension between attempting to sort everything out and place it in primary legislation and the sensible approach which says that here are some areas where it makes sense to leave in some flexibility, both in terms of being able to tease out some of these issues over the next two years before the Bill comes into operation and in the future, bearing in mind that adoption legislation—the last Act was passed in 1976—does not come around too often. I believe that we need to allow for some flexibility.
Clause 3 requires each local authority to continue to provide an adoption service within its area. It must be designed to meet the needs of children who may be adopted, their parents and guardians, prospective adopters, adopted people, their adoptive parents, birth parents and former guardians. It is worth recognising that this is a much wider group than that covered by the equivalent provision in the Adoption Act 1976, which does not include adopted adults and their birth and adoptive parents and former guardians.
The facilities which local authorities must provide as part of their adoption service are making and participating in arrangements for the adoption of children and making and participating in arrangements for the provision of adoption support services. For the first time the Bill places a clear duty on local authorities to make and participate in arrangements to provide adoption support services.
The range of adoption services will be set out in regulations under Clause 2. The provisions in Clauses 2, 3 and 4 will be used, as promised in the White Paper, to underpin the new framework for adoption support services and financial support.
It is intended to extend the duty on local authorities to make and participate in arrangements to provide adoption support services to birth and adoptive siblings of adopted people and children who may be adopted. Such provision will be made in the regulations under subsection (3)(a) of Clause 3. A consultation document entitled Providing Effective Adoption Support, to which noble Lords have referred, was published in June. That included the statement that adoption support services should be made available to birth and adoptive siblings and to any other extended family members who are significant to the child. The results of the consultion will be considered when the regulations of the second phase of the new framework for adoption support services and financial support are drawn up for introduction in 2004.
Amendment No. 7 requires a local authority to maintain within its area a service designed to meet the needs in relation to the adoption of grandparents and siblings in addition to the other persons listed in Clause 3(1). Amendment No. 159 provides a definition of the term "siblings" for use in the Bill.
The noble Baroness should not read too much into the word "however". It is our intention that siblings will be included in regulations which set out for whom the local authority must make adoption support arrangements. I make that clear and commit the Government to that.
So far as concerns grandparents, there are grandparents and grandparents. For many children grandparents are very important; for other children they may have little or no contact with them. Under Clause 4(2), local authorities will be able to assess the needs of any other person, such as a grandparent who may have a significant role in the child's life, in order to respond to the individual circumstances of the family.
As to whether or not grandparents are considered when arrangements are being made for adoption—indeed, the point might apply also to siblings—this is covered in Clause l(4)(f). The adoption agency and the court must have regard to the relationship that the child has with relatives, including the likelihood of any such relationship continuing and the value to the child of it doing so, the ability and willingness of a relative to provide the child with a home, and the wishes and feelings of the relative regarding the child.
Amendment No. 9 relates to Clause 4 and the new right to an assessment for adoption support services. Adoptive families will not need to wait until after an adoption order has been made to request and receive an assessment of their needs for adoption support services. They will be able to request an assessment at any time; for example, when they have been matched with a child, or when the child has been placed with them.
Additional persons prescribed in the regulations made under Clause 4(1)(b) will also have the new right to an assessment. These persons will be the persons listed in the regulations made under Clause 3(3)(a), for whom local authorities must make, and participate in, arrangements to provide adoption support services. As I have already said, it is our intention that they should include birth and adoptive siblings of adopted people and children who may be adopted.
In addition to carrying out an assessment of needs for adoption support services of the person who has requested the assessment, Amendment No. 7 would enable local authorities to carry out an assessment of the needs of specified persons. However, it does not make clear how those persons will be specified. The Government believe that Amendment No. 7 is not needed. I have said that it is our intention that everyone listed at subsection (1) of Clause 3, and in the regulations made under Clause 4(l)(b), should be able to approach their local authority for an assessment of their needs for adoption support services. The Bill makes that clear.
In practice, the needs of adoptive families—adopted children, their adoptive parents and any adoptive siblings—will be assessed together. It would not be appropriate for the child's needs to be assessed in isolation. Where a child is not of sufficient age and understanding to request an assessment, his parent may request the assessment on his behalf. An older child may choose to request an assessment himself, or, alternatively, his parent may request the assessment on his behalf.
In relation to an adult who lacks capacity to request an assessment of needs for adoption support services, a carer may make such a request on his behalf. The Government intend to issue statutory guidance to local authorities on the assessment process. Such guidance will make that position clear. The guidance may also make clear local authorities' responsibilities in respect of the carer's needs for adoption support services. It is important that Clause 4 should not be seen as a straitjacket. Clearly, we do not wish to preclude carers from coming forward in appropriate cases.
It is also worth making the point that Clause 4(2) gives local authorities a power to carry out an assessment of the needs for adoption support services of any person who does not have the right to such an assessment. That will enable local authorities to assess the needs of any other person—for example, a grandparent living with the adoptive family, or a carer of any person affected by adoption—where they consider this appropriate in order to respond to the individual circumstances of the family.
When considering grandparents, one returns to the need for flexibility. It may be appropriate for grandparents who play an important role in a child's life to receive adoption support services, but not for grandparents who have limited or no contact with the child. It would be the same for cousins as much as grandparents. That is why we are seeking to have regulated power under the Bill to give a degree of flexibility in those important areas.
My Lords, I thank the Minister for his comprehensive reply. I thank him especially for the explicit commitment that he made on behalf of the Government in relation to including siblings. I register mild disappointment that he is not so keen on extending the same protection, in a sense, to grandparents, thus leaving them to be dealt with as a local authority thinks fit. Although I understand the need for discretion up to a point, grandparents are often excluded from important relationships. I fear that they are being marginalised under these provisions.
I shall consider most carefully what the Minister said when I read the Official Report. In the meantime, I beg leave to withdraw the amendment.
My Lords, with this amendment I return to one of the key debates we held in Grand Committee; namely, the co-ordination of adoption services provided by different local authorities. In Grand Committee there was a consensus that the co-ordination of services, such as health and education, was a major factor in the success of adoption support. We noted the distinct differences of many adopted children; for example, the extent to which such children may have physical health, mental health, and special behavioural needs. However, we did so in the recognition that not all adopted children have those problems.
We had a very interesting debate in Grand Committee, sparked off by the noble Baroness, Lady Howarth of Breckland, about the extent to which adoption services need to dovetail with other services, and about the extent to which it is right or wrong to make adoption pre-eminent. I took away the points raised during our discussion and reflected upon them during the summer months. As a result, I have returned with the amendment now before the House.
I should explain that this is an amendment to Clause 3, which talks about the maintenance of an adoption service. When we discussed such matters earlier in the year, we did so in relation to Clause 4 and assessment. Part of the reason for choosing to approach our proposal in this way is that over the intervening period one issue has become much more apparent to me. I have in mind the extent to which it is necessary to co-ordinate preventive services for children whose needs may not be so extensive that they fall into the remit of the children and adolescent mental health services; nor are such children covered by the guidance and regulations that relate to the special education needs provision.
I have attempted in this amendment to take on board the spirit of the discussions that took place earlier this year regarding the extent to which actions by different agencies, such as schools, can have an enormous and beneficial effect on the lives of children who have been adopted. Again, I stress that it is the preventive nature of having a seamless and joined-up service that I seek to address.
There is one other reason for putting forward this proposal. In discussions over the summer months with people who are responsible for the provision of such services on the ground, it became apparent that a key problem arises when a child is moved from the care of the authority through which an adoption order was made. Indeed, families move all the time for many different reasons. At that point, plans that have been agreed can often break down, leading to difficult consequences for both children and parents.
No doubt we will again discuss the role of regulation versus primary legislation. So much upheaval is currently under way in the worlds of education and social care that for the provision to be made a priority it must be given the force of primary legislation, although I welcomed the Minister's statement in response to the noble Baroness, Lady Noakes, on the previous amendment about the statutory nature of the guidance on assessment. That should, one hopes, make some difference.
It is clear that children who are adopted may at times fall between the different statutory provisions—they may fall through the cracks. Although their needs may be well known to social services, they may not be apparent to those responsible for education or health. Statistics for the life chances—especially the educational performance—of children who have been in care or have been adopted speak for themselves. We talked a great deal about that in Grand Committee. The amendment addresses the issue once again. I beg to move.
My Lords, I support the amendment. As the noble Baroness, Lady Barker, said, we had a good discussion of the issue of co-ordination across different services in Grand Committee. There was no disagreement about whether services should be co-ordinated; the only question was how best to do so.
The Government often talk a good story about joined-up government, but their rhetoric sometimes fails when we come to the practice, and certainly when we come to legislation, where silo thinking often prevails. It is clear that where adopted children have complex needs, those needs will not be met by social services alone and may require a range of additional services from the health and educational sector.
As we proceed with increasing the number of adoptions by 40 per cent—the Government's target, which we fully support—the additional children adopted are likely to have much more complex needs than those who have been adopted to date, although that is not to claim that those who have been adopted to date have no serious needs. So it is likely that, over time, the need for co-ordination will increase rather than decrease.
The Bill places a duty on local authorities under Clause 4(9) to notify health and education authorities where needs go beyond the boundaries of social services. However, that duty is not enough. I shall cite what the Minister said in Grand Committee about health bodies providing services after they have been notified under Clause 4(9). He said that,
"it will be good practice for"— the health authority—
"to inform the local social services authority. This would give the local social services authority a clear picture of the package of adoption support services being provided to an individual".
That is not a description of joined-up working; it is a description of conventional silo working, which has failed so many in adoption.
Yet the Minister went on to say that that notification,
"will help to ensure the joined-up planning and provision of public services in connection with adoption".—[Official Report, 24/6/02; col. CWH 46.]
I must tell the Minister that that is wishful thinking. We support the amendment because we think that a act of faith in the joined-up delivery of adoption services carries too high a risk of failure. Adoptions need more certainty than the Bill currently provides.
My Lords, I, too, support the amendment. I had not intended to speak. The noble Baroness, Lady Noakes, made the points that I would have made. My view is that joined-up government is crucial for the children concerned. As noble Lords will know, I have worked in the field for many years.
When there are not just social services problems but also mental health problems, physical health problems and a wide range of educational difficulties, all of which require good case conference intervention and responsible decision-making, the great difficulty often is that people have good intentions but lack the authority to bring resources to the table for a particular child. If those responsibilities are written into the Bill, it gives some power to the agencies and local authorities to lever the necessary resources for children who are often in extraordinarily difficult circumstances. It would be enormously helpful if that was stated in the Bill.
My Lords, this is an important matter. I agree with the noble Earl, Lord Listowel, who spoke about the importance of adoption support. There is no doubt that one of the single greatest improvements we can make under the new procedures is to enhance adoption support. I am convinced that that will lead to a much better outcome. Clearly, part of effective adoption support is that children must not fall into a gap between the different statutory agencies.
I was intrigued by the reason given by the noble Baroness, Lady Howarth, for using primary legislation—to give a nudge in that area. In a sense, that is the problem. There is a genuine problem with using focused primary legislation on adoption to dictate priorities to other statutory providers. That is the Government's problem with the amendment, and with the amendment tabled by the noble Baroness, Lady Barker, in Grand Committee.
Let us be clear, Clause 3 sets out the requirements for the adoption services provided by local authorities. It is focused on such services. It covers all aspects of their adoption-related activity, such as arranging adoption, assessing prospective adopters and providing adoption support services. Although the noble Baroness, Lady Barker, described the ingenuity with which she has rewritten her amendment to fall under Clause 3 to get over my objection to her previous amendment to Clause 4, I have a real problem with it because Clause 3 is specifically about local authority services. It is more appropriate to deal with issues of co-ordination with health and education providers in Clause 4 but, as I said in Grand Committee, I have real concern about using the Bill to dictate to other statutory providers what they must do.
On the other hand, it is clearly important for government to ensure that we have joined-up planning and provision of adoption support services. In the White Paper, Adoption: A New Approach, we promised that adoption support services would be planned jointly with local education authorities and the NHS. That is what subsection (9) helps to provide.
Clause 4 gives people affected by adoption a new right to request and receive an assessment of their needs for adoption support services from their local authority. If it appears to the local authority, as a result of an assessment carried out under Clause 4, that there is a need for health or education services, the authority is under a duty, under subsection (9), to notify the appropriate health authority, primary care trust or local education authority of the need.
Following such a notification, the health authority, primary care trust or local education authority will determine whether to provide services in accordance with its statutory obligations. That means that, if people affected by adoption are entitled to receive services under the statutory frameworks under which health authorities, primary care trusts and local education authorities operate, those services must be provided. Those are the building blocks of the joined-up provision of public services.
We will issue guidance and directions to health authorities, primary care trusts and local education authorities, to ensure the joined-up planning and provision of adoption support services in the various public services. The national adoption standards already address the need for multi-agency work with health and education providers. The standards state that,
"Councils will plan and deliver adoption services with local health and education bodies...voluntary adoption agencies, the local courts and other relevant agencies, including, where applicable, other councils".
The standards also make it clear that children are entitled to support services that meet their assessed needs—including advice and counselling, health, education, leisure and cultural services—and that adoptive parents will have access to a range of multi-agency support services before, during and after adoption. The standards will have the status of Section 7 guidance from April, 2003.
We are also giving careful thought to how we can best assist those affected by adoption to be informed about and to gain access to the various support services that the health and education sectors can provide. The noble Baroness, Lady Barker, raised that important matter. Clear and accessible information about the availability of services is critical, if those affected by adoption are to be helped to access the right support services at the right time. As part of that work, we are considering the role that adoption support key workers might play in helping those affected by adoption to identify support needs and to gain access to services to meet those needs. The key worker need not be a current council social worker. In our recent consultation document on adoption support, we asked detailed questions about the role of key workers. We are analysing the responses to the consultation, but the concept of having a key worker has proved popular with respondents.
There are regular meetings between representatives of the department and the Department for Education and Skills, as well as meetings between colleagues from throughout the Department of Health, to discuss the need for co-ordination between agencies to allow families to receive all the support that they need following an adoptive placement. We are developing several initiatives across government, and we have the mechanism of performance management to ensure that a joined-up approach is taken to the cases of individual children and their families.
I have reservations about the wisdom of changing primary legislation in the way that the noble Baroness seeks to do, but she should be in no doubt that I agree with the general principles that led her to move the amendment. I agree that LEAs and the NHS must ensure that, in their area of statutory responsibility, they work with local authority social services departments to provide a co-ordinated response.
My Lords, I thank the Minister for his reply. We have grappled with the problem for the whole of the time in which we have discussed the Bill, and it has not been resolved to anyone's satisfaction. We all agree what the problem is, and we all agree on the desired outcome. The disagreement lies in deciding how the local authority's responsibility for co-ordination—we all accept that it is the local authority's responsibility—can be discharged in relation to the work of the other statutory bodies.
I note what the Minister said about key workers. I welcome it as a response to concerns that have been raised throughout our discussions. I must appear churlish this afternoon; I do not intend to be. However, it is difficult to evaluate a proposal as broadly outlined as that which the Minister set out this afternoon. This is one of the most critical parts of the Bill. We know that it could be the key to making adoptions successful. That has been evident all the way through from the report by the Performance and Innovation Unit.
I disagree with the Minister's interpretation of the amendment. I did not seek to get round the objections that he raised in Grand Committee. I had re-thought the matter, and I sought to deal with the matter proactively. By the time that we get to the point of assessment and the involvement of health and education authorities, what happens will, inevitably, be reactive. We will be reacting to the problems and difficulties of a particular child. I sought to set out a framework in which there could be the forward planning of services both for individual children and for all children.
I do not accept the Minister's point that my amendment would create a duty to provide adoption services that would outweigh all the other functions of the social services. I listened carefully to what the Minister and the noble Baroness, Lady Howarth of Breckland, said, and I do not believe that requiring local authorities to provide services in conjunction with health and education providers of itself makes the service pre-eminent over all other services to children. I do not accept that.
This is one of the most critical decisions that we will take. I would like to test the opinion of the House on the matter.
My Lords, in Amendment No. 10 we come to an issue which gave rise to extensive debate in Grand Committee; that is, pre-adoption and post-adoption support. I shall remind the House of the weakness in this part of the Bill, as I perceive it. Clauses 2 to 8 are all about the adoption service. Clause 4 provides that where a local authority receives a request from a designated person to have his or her needs assessed for adoption support services the local authority must carry out such an assessment. No one argues with that provision. It is thoroughly welcome, and to my mind gives a much-needed signal about the importance of post-adoption support not only for adopted children but also for adoptive parents and, indeed, natural parents. However, if we go on to read Clause 4(4), we see that having carried out an assessment for support services and having decided that someone is in need of support, a local authority may decide whether or not to provide services to that person—in other words, the duty of local authorities extends only so far and no further. They are not being compelled to follow through the process that the Bill obliges them to initiate.
I have thought about this issue very carefully since we debated it last—I have read and re-read the Minister's reply in Hansard—but I am still very troubled. What the Bill is trying to achieve, among other worthy objectives, is to increase the number of adoptions from care and to bring the practice of the worst performing local authorities up to the standard of the best. The best local authorities currently offer support services of a very high quality. They do so because they know that adoption can be tough and because the risk of not providing proper support is that an adoptive placement may break down, with incalculable damage being done to the child in the process. It may well be that the best performing local authorities need no legal duty to spur them into providing adoption support. The authorities which neglect adoption support, on the other hand—and some do not currently offer it at all—will regard Clause 4(4) as a very feeble stick.
When I read the White Paper on adoption, I was encouraged to see that the Government appeared to agree with this. It stated that new legislation would be introduced to,
"place a clear duty on local social services authorities to provide post-adoption support, including financial support, planned jointly with local education authorities and the NHS, and any other relevant agencies. This support will be available from the time a placement is made, for as long as it is needed".
That passage is unambiguous. It states that local authorities are to be given a duty to provide post-adoption support which will be available from the time a placement is made. It does not say, as I think I said in Grand Committee, that local authorities will be given a duty to decide whether or not to provide post-adoption support.
The consequence of not creating an explicit duty on the face of the Bill cannot be measured at this stage, but I do not think that it is fanciful to imagine that the kinds of families whom we all hope will be encouraged to come forward as prospective adopters will be deterred from doing so if they lack confidence that they will be appropriately supported in their task. It is also not fanciful to suppose that adopted children who desperately need specialist help will not in practice get it.
When we debated the issue in Committee, the noble Baroness, Lady Howarth, whose experience in this field we all greatly respect, suggested that the amendment, although worthy in its intent, was misconceived. She was concerned that by placing a duty on local authorities in respect of adopted children we would be creating one gold-plated group of children, as she put it, over and above other groups. The Minister in his reply agreed with that point and said that he could not support an amendment which would give priority to adoption support services over and above every other service provided by a local authority.
I would be remiss if I did not treat that point with due seriousness. Indeed, of all people in this House, I am keen not to give the Minister an excuse to point a finger towards me for advocating less autonomy at local level rather than more. Of course I favour maximising local autonomy as a general rule, but I am not afraid to incur the Minister's chiding on this occasion. I am not afraid because I believe with all my conviction that the success of our adoption system and of the adoption process is an issue of pre-eminent national, political importance. Its impact will be felt everywhere—in the home, in schools, in prisons, on the streets, in the workplace, in the dole queue. We reminded ourselves of that fact at Second Reading and I shall not rehearse the arguments again.
It is not enough to say that we can get to where we want to go through national frameworks and performance management. Performance management is, by definition, retrospective, leaving open the possibility that real families will have suffered real distress and break-down in the meantime. It is not enough to say, as the Minister may, that local authorities will have a duty to act reasonably at all times when we know that it will be reasonable for a local authority to cite funding difficulties as a reason for not doing something. In practice, local authorities have overriding statutory duties in a number of different areas—for example, with regard to statements of educational need and the provision of home care for the disabled. Governments have singled out those groups of people whose interests are of special social importance and whose needs society must therefore address. The number of such groups is not many; I believe that adoptive children and families should be added to them.
Yesterday, the Government announced that they had allocated £70 million over three years to fund adoption support services. That announcement was extremely welcome. It is a significant sum. I am delighted that the Government are channelling additional money to adoption services. What I cannot gauge, however, is how far in practice it will go. It will be ring-fenced money, but if it is not sufficient to meet the needs of adopters and their families then we need to flag up that concern. The £70 million is, I understand, intended to cover advocacy as well as other adoption support services. It would be very helpful if the Minister could go into some detail as to how many families over the course of a year are likely to benefit from this money. His answer to that question may well determine what I decide to do with the amendment.
The Government have said and done many of the right things. They have done just about everything they could do short of creating the duty I am proposing. They have simply pulled back from carrying the matter to what I regard as its correct conclusion. I respect their reasons for adopting this position but I cannot agree with them, nor am I yet convinced that the sum of money announced yesterday will comprise an adequate substitute. For those reasons, I beg to move.
My Lords, perhaps I may ask the Minister one question: to whom will this assessment be made available? Will it be made available to the Minister, to people who have requested it, to the public? Having asked that question, I should like to reinforce what the noble Earl said. It seems to me that this is an absolutely fundamental issue. If the Government genuinely want to improve the adoption services in this country, they must somehow—either through local authorities or in some other way—make provision for proper support services. I have had representations made to me from all sides on this point. I suggest that if the Government do not do so, the great potential of the Bill will be only 50 per cent exploited.
My Lords, I deeply wish that I could support the amendment. I speak against it merely because of my broader wish to support children in general. Adoptive children, identified as children in need, should be given the necessary support to be maintained with their families.
I am reminded of the statement that 20 per cent of adoptions break down—a figure written on my heart. The reason for the breakdown is often lack of support. As a long-serving social worker, I am conscious too of the many families where the initial breakdown would not have occurred had they received the kind of support referred to. It is crucial that local authority resources are not directed in such a way that one group of children receives the services while families where children could be helped to be maintained in their own homes do not receive them.
This is a very different issue from placing a requirement on the face of the Bill for the naming of the partners who should be working together, as suggested in an amendment in the name of the noble Baroness, Lady Barker. This has to do with the direction of resources.
There is an interesting article in Panel News, a publication for guardians, about supporting adoptive families. It is a beautifully written, deeply disturbing report about the needs of adoptive families. It serves merely to convince me that many of the families with whom I am in touch, and who are at breaking point before their children have gone into care, need the same kind of support dealing with loss, difference, trauma and the results of early deprivation and trauma.
My concern is that all children who are defined as children in need should receive the services they need. However, my many years' experience of working with and in local authorities has taught me that rationing must take place. I hope that that will happen as close as possible to the local community. That is why I find myself supporting the Government in this instance.
My Lords, I want to take up the comments made by the noble Earl, Lord Howe, which I strongly support. We are all in agreement that the provision of adoption support is the critical factor for many of the placements. I, too, welcome the resources announced over the weekend. However, like the noble Earl, I have great reservation about how far that money will go. My question to the Minister is: what is the £70 million sum announced supposed to fund; and what will it not fund?
I take on board the point made by the noble Baroness, Lady Howarth, about the need to make sure that birth families have access to good children's services. I also understand the need to integrate adoptive families into the other available services. My big concern is that, across the whole piece, it will not add up for anyone. Therefore, I want to know from the Minister exactly what the £70 million will fund and how it will be integrated into other children's services.
My Lords, this is an important debate. There is no doubt that the quality of adoption support has an important bearing on the success of adoption placements. All the research that has been undertaken indicates that under the current system families have been reconnected with the adoption process only when problems, sometimes severe, arise.
Equally, the SSI report in 2000 gave a graphic picture of the patchy and uneven response of local authorities to providing adoption support services; of a widespread lack of fully developed and comprehensive adoption support services, with adopters unsure whether or how to access support; and of a lack of adoption support deterring people from pursuing adoptions in some cases. It indicated an overall poor performance, widespread variation and unacceptable delays.
I have no disagreement with any of the general points that noble Lords have put forward in their determination to see that we ensure that very effective adoption support services are available for all who require them and for as long as they need them. But this is an essential plank of the Government's approach to adoption which is being developed in the Bill.
The importance of Clause 4 cannot be underestimated. It gives people affected by adoption a new right to request and receive an assessment of their needs for adoption support services from their local authority. Where the assessment identifies a need for adoption support—my assumption is that when an assessment is undertaken, that assessment is given to the people who requested such an assessment—the local authority must then decide whether to provide adoption support services to that person.
We believe that local authorities are best placed to decide whether to provide services to individuals and, if they do so, which services those should be, based on need and on resources available locally. Clause 4(4) underpins that. I listened carefully to the remarks of the noble Earl, Lord Howe. As a careful student of his party's pronouncements on the relationship between central and local government—indeed the party of the noble Baroness, Lady Barker, debated these issues at great length at its party conference only two weeks ago—I believe that the principle that I have set out very much accords with the thinking on all sides of the House about the relationship between central and local government.
Clause 4(4) makes clear that it is for local authorities to make a decision as to whether to provide adoption support services in each individual case. Ultimately, local authorities provide the adoption service, so they must decide who needs what level of support. We cannot get away from the fact that by requiring local authorities to provide adoption support services to individuals we should be saying in effect that adoption support services should have priority over almost every other service provided by the social services department of a local authority. The noble Baroness, Lady Howarth, is right. I do not believe that it would be right, in principle or in practice, to fetter a local authority's discretion in that way.
The noble Earl, Lord Howe, referred to one or two examples. He mentioned in particular the statementing of educational needs. But it must be borne in mind that that is a tightly focused responsibility. The term "adoption support services" covers a wide range of services, from information leaflets to support groups and outings for adopted children to the more intensive specialist therapeutic services.
A duty to provide all adoption support services which a person is assessed as needing would place a duty on local authorities to provide services right across that spectrum to individuals, giving equal weight to all those services. It is for that reason that I am unable to support the amendment. However, I have no doubt that, in arguing against the amendment, equally I have a responsibility to the House to ensure that local authorities do the job effectively, and that Ministers have the means to ensure that local authorities do the job properly.
For the first time, the Bill places a clear duty on local authorities to make and participate in arrangements to provide adoption support services. This new duty will tackle the current inconsistency in the availability of adoption support services across the country. It will require all local authorities to make adoption support services, including financial support—we have just beefed up that requirement in a previous amendment—available. It is my contention that the combined effect of these provisions and the new right to an assessment, backed up by regulations and guidance, will deliver real changes on the ground. This is reinforced by national adoption standards, which state clearly that children are entitled to support services to meet their assessed needs and that adopters will have access to a range of multi-agency support services before, during and after adoption. Of course, those assessed and dissatisfied with the response of the local authority can have recourse to the local authority complaints system.
The issue of resources is very important. We announced over the weekend that we will be providing an extra £70 million over three years as a special grant to local authorities for the provision of adoption and special guardianship support services. In answer to the noble Lord, Earl Howe, that will not embrace advocacy services. The grant is in recognition of the need for councils to deliver a step-change in the support services to be provided. My intention is that this sum will benefit every adoptive family to a greater or lesser extent depending on their needs. The money will be ring-fenced, which means that local authorities will be required to use it only for adoption support and special guardianship support services, ensuring that the money will be targeted where it is most needed. Twelve million pounds will be made available in 2003–04, £23 million in 2004–05, and £35 million in 2005–06.
It is also worth pointing out that although the performance of local authorities has come under much criticism in this House, some of it justified, there is none the less evidence that in the past two or three years a considerable number of local authorities have got their acts together. The number of adoptions has increased, and local authorities themselves have increased their spending on adoption services, which has risen from £55 million in 1998-99 to £81 million in 2000-01. That action by local authorities and the injection of this additional money will put local authorities in a strong position to meet the demands that will be placed on their services.
The noble Earl should not underestimate the responsibility of local authorities to act reasonably in deciding, following an assessment, whether to provide adoption support services. Failure to do so will be picked up through monitoring and performance assessment, and action will be taken accordingly. I understand that the noble Earl regards that as retrospective action, but the very fact that local authorities know that this will be an important ingredient to performance assessment will in itself act as a further incentive to ensuring that they do provide adequate adoption support services. I assure the House that council performance is regularly assessed by the Social Services Inspectorate. We also have monitoring arrangements in place to enable us to collect information twice yearly. If it became apparent that there were problems with specific local authorities' adoption support services, we would have no hesitation in drawing that matter to the attention of that local authority and in ensuring that appropriate action was taken. It is also worth saying that from April 2003, local authority adoption services will be independently inspected by the National Care Standards Commission, which is a further way to judge the performance of local authorities.
I said earlier that I endorse the comments that all noble Lords made about the importance of ensuring that adoption support services are really effective. I do not believe it right to distort local authority proper decision-making processes by way of primary legislation. However, I hope that I have reassured noble Lords of the Government's determination to get this right. I give a commitment to noble Lords that once the new adoption support arrangements are fully in place, we will ask the new commission for social care inspection to conduct a thematic inspection assessing local authorities' performance in providing adoption support services. This will focus in particular on joint working and co-ordination of provision with health education and other local government services. I hope that the noble Baroness, Lady Barker, will also be pleased, as this will address her earlier point on the previous group of amendments. We intend that this inspection will be conducted jointly with Ofsted and CHAI—the Commission for Health Audit and Inspection—which will take over from the Commission for Health Improvement. That will enable us to ensure that local authorities deliver the services set out in the new framework. I have no doubt whatsoever of the Government's determination to ensure that proper and effective adoption support services are provided.
My Lords, this has been a very useful debate, and I am grateful to all noble Lords who have taken part. I thank the Minister for his detailed and thoughtful reply. I welcome the Minister's announcement of the new money for adoption support services, which will be enough to make a real difference. It excludes advocacy, which I had not appreciated, and it recognises the importance of adoption support for the success of this Bill.
To return to a straightforward issue, adoption support is in many ways the linchpin of the Bill. The noble Lord, Lord Northbourne, emphasised that point. If we are serious about increasing the number of adoptions and improving their success rate everyone agrees that we will need to provide effective help. Sometimes, as the Minister said, the necessary help will be quite simple; sometimes it will be complex. However, the essential requirement is that it be there for those who need it. All the major adoption organisations speak loudly and with one voice about this.
However, we should remember another thing about adopted children: their lives have been fundamentally altered by the intervention of the state. That intervention gives rise to an obligation on the state to ensure that an adoption has the best chance of success. Local authorities should not be permitted to cast adrift adopted children and their families. We heard about the various safety mechanisms that the Government have in train or in operation, but a simple way to stop that from happening is to accept my amendment. It will, of course, cost money to do this, but nothing like the amount required if we do not do it. The cost of maintaining a child in the care system, and later when on benefits or in prison, dwarfs any conceivable cost of adoption support services.
I had wanted to be convinced by the Minister's reply that the £70 million is a bottom-up calculation based on anticipated numbers of adoptive families receiving support. The question behind that is whether the Government have made a calculation to underpin the decision to allocate £70 million rather than any other sum. The answer to that question is still not clear.
I do not propose to divide the House on this occasion. I intend to table one or perhaps more Written Questions before Third Reading to try to tease out a little more of the basis on which the announcement of new money has been made. Depending on the Answers to those Questions, I shall decide whether we should return to the matter at the final stage of the Bill. In the mean time, I beg leave to withdraw the amendment.
My Lords, in a sense this takes us back to our debates on the National Health Service Reform and Health Care Professions Act 2002. No doubt the noble Baroness, Lady Noakes, will wish to discuss what is a strategic health authority—or perhaps not.
These are technical amendments to the references in the Bill to health authorities. They are necessary as a result of the National Health Service Reform and Health Care Professions Act passed earlier this year. Clause 4(9) provides that if, during an assessment of a person's need for adoption, it appears to the local authority that there may be a need for the provision of services to that person by a health authority or a primary care trust, the local authority must notify that health authority or primary care trust. Clause 8(2)(d) provides that health authorities are exempt from the requirement to register as an adoption support agency in order to provide adoption support services.
The 2002 Act changed the name of English health authorities to strategic health authorities and provided for the National Assembly for Wales to establish local health boards to take the place of Welsh health authorities. The references in the Bill therefore need to be changed. It is intended that strategic health authorities will not have service provision functions. It is intended that primary care trusts will take the service provision role, while the strategic health authority will be involved in strategic planning and performance management. This means that they will not need to be included in Clauses 4 and 8.
In Wales, the establishment of local health boards and the transfer of functions from health authorities will not be completed until next year. As a result, we are amending the references to health authorities in Wales to say, "health authority or local health board". I beg to move.
moved Amendment No. 13:
Page 7, line 24, leave out "Health Authority, Special Health Authority, Primary Care Trust" and insert "Special Health Authority, Primary Care Trust (in Wales, a Health Authority or Local Health Board)"
On Question, amendment agreed to.
Clause 9 [General power to regulate adoption etc. agencies]:
My Lords, the amendment would introduce into Clause 9 a provision for regulations requiring adoption agencies to take action in the event of the death of an adopted person. In Grand Committee the Minister explained that the Government are not inclined to prescribe such action as a duty. However, they are prepared to allow such responsibility to be dealt with flexibly. Flexibility is needed to prescribe, after due consultation with adoption stakeholders, the way in which adoption agencies should carry out this sensitive responsibility. I should be interested to learn whether the Minister now believes that it is appropriate to make explicit provision in Clause 9 for that purpose. As your Lordships heard the last time we debated the subject, it is important that arrangements are in place. I agree with the Minister that flexibility—which I believe I am suggesting in the amendment—would allow such arrangements to be appropriate to this delicate situation. I beg to move.
My Lords, I am glad to acknowledge that the amendment provides for some flexibility that was not provided for in the earlier amendments. The issue was debated in Commons Standing Committee and in our Grand Committee. On both occasions, the Ministers responsible said that there was no difference in substance between us on the matter. The only question is how best to achieve the notification of the death of an adopted person to the birth parent in the appropriate circumstances, which covers issues such as what the appropriate circumstances are and what sensitivities have to be observed. We have taken account of the views of the stakeholders in considering our reaction.
There are problems with the issue, of which I think the noble Lord is aware. The intention behind the amendment is to provide for the birth family to be told about the death of the adopted person. It is not clear whether the intention is also to provide other information such as the circumstances of his death or the burial place. That could reveal the identity of the adopting family, which might not be particularly desirable.
The national adoption standards provide that the birth parents or the next of kin should, if they wish, be informed by the adoption agency of the adopted person's death where adoptive parents have agreed to inform the agency of the death of the adopted child. Again there is the issue of whether the adoptive parents have made that undertaking when the adoption took place. There is therefore the issue of the ability of the adoption agency or the local authority to make the notification of death.
Fortunately, we do not need to go into those difficulties in detail now, because the regulation-making powers in the first part of Clause 9 are very wide. They could be criticised for being so wide. I assure the House that they are sufficiently broad to enable us to put an appropriate requirement on adoption agencies through regulations in the existing powers in the clause. If we use the existing powers rather than providing an explicit additional power, we have the necessary flexibility to prescribe after consultation with the adoption stakeholders the way in which adoption agencies should carry out that sensitive duty. On that basis, I hope that the amendment will not be pressed.
My Lords, I shall speak also to Amendment No. 68. Amendment No. 15 would add a new subsection to Clause 9 requiring the affirmative procedure to be used for regulations containing offences issued under that clause. Amendment No. 68 would do the same for regulations made under Clause 59.
As the Minister admitted a few moments ago, Clause 9 contains far-reaching regulation-making powers, covering a range of issues relating to adoption and adoption support. Those very wide powers can go into all sorts of areas, including fees charged, the management of the adoption agencies and extensive information provisions.
We discussed the regulations many times in Grand Committee. Members on all sides of the Committee regretted—if that is not too weak a word—the almost complete absence of detail on what would be included in the regulations. We are aware that consultation will take place before regulations are drafted and that much, if not all, of that consultation has yet to take place. Many of us were concerned not only about the lack of information on what the regulations would contain, but also about the timescale, which puts the implementation of the Bill—assuming it becomes law—into 2004 at the earliest.
I turn to the substance of the amendments. All of the Clause 9 regulations are subject only to the negative procedure, and the Select Committee on Delegated Powers found no fault with that. However, by virtue of subsection (3), the regulations can provide that a person contravening specified regulations is to be guilty of an offence and liable on summary conviction to a fine not exceeding level 5, which is currently set at £5,000.
The department sought to justify this to the Select Committee by saying that,
"it is inappropriate to make a provision for offences relating to the breach of requirements included in secondary legislation on the face of the Bill".
One can easily understand that position. I have a problem, however, with the creation of offences without proper parliamentary scrutiny. If the offences have to be dealt with in secondary legislation rather than in the Bill, I believe that the affirmative procedure would be the best way of dealing with those regulations.
We still have no idea of the nature of offences likely to be dealt with in the regulations. We do not know whether they will cover 10 per cent of the regulations, 90 per cent or something in between. We do not know whether the offences will involve matters that strike at the heart of effective adoption or mere petty bureaucracy. As we have none of those answers, the right course is to establish a proper ability to scrutinise these regulations, when they are introduced, under the affirmative procedure. I beg to move.
My Lords, I certainly did say a few minutes ago that the regulation-making power under Clause 9(1) and (2) is fairly wide. However, these two amendments—particularly Amendment No. 15—refer only to the level of offence under those regulations. If the amendment were passed, it would not allow the House to debate under the affirmative resolution procedure the nature of the offences; it would allow the House to debate only the level of fine for the offences. I do not think that that would take us very far. The same applies to Amendment No. 68 in relation to Clause 59.
Clause 9(3) enables regulations to be made by the appropriate Minister to provide that a person who breaches any provision of the regulations made under Clause 9 commits an offence and is therefore liable on summary conviction to a fine not exceeding level 5 on the standard scale. Let us say that we did as the noble Baroness, Lady Noakes, suggests and provided for an affirmative resolution. Although we would have regulations under Clause 9(1) and (2) subject to the negative procedure—they could be prayed against—the only matter that would be affected by it is the level of fine.
We have sought to follow established practice in this provision, which contains nothing different from what has been done before. All regulations made under the Adoption Act 1976 are subject to the negative resolution procedure except those under Section 3(1), which are not subject to any parliamentary procedure at all. We take the view that the vast majority of the regulations made under the Adoption and Children Bill should also be subject to the negative resolution procedure. I draw noble Lords' attention in particular to Sections 25 and 52 of the Care Standards Act 2000 which contain similar powers for regulations to be made providing that a breach of regulations under that Act—which is just as wide—is an offence. Those regulations, too, are subject to the negative resolution procedure.
"the powers are appropriately delegated and the provisions for parliamentary scrutiny are appropriate".
I think that the House is aware that we are exceedingly respectful of the views of the Delegated Powers and Regulatory Reform Committee, and that there has to be a very good reason indeed why we would go against its findings and recommendations. In this case we are doing precisely as it proposes, and I think that we should do just that.
My Lords, I thank the Minister for that reply. I intended no disrespect to the Select Committee on Delegated Powers. In fact, the Government are not doing as the Committee proposed, but doing something with which the Committee has not disagreed. It is a very different proposition.
The Minister confused me by saying that the amendment would only affect the level of the offence. I cannot immediately see that point but shall consider it further. As far as I can see, this amendment would achieve the effect that I desire. Nevertheless, I am not a practising lawyer and will have to take advice on the point.
What has disappointed me more than anything is that the Government have still not provided information on what will be included in the regulations, particularly information on which offences will incur the penalties mentioned. It is a matter of considerable regret. I shall consider with care the Minister's comments on the inadequacy of my amendment. Meanwhile, I beg leave to withdraw the amendment.
My Lords, this is a minor amendment to Clause 10. Clause 10(3) provides that regulations under Clause 9 may make certain provisions in relation to voluntary adoption agencies and adoption support agencies. Clause 10(3)(c) provides for these regulations to make provision requiring voluntary adoption agencies and adoption support agencies to appoint a manager "in prescribed circumstances". However, it is our intention that these agencies should appoint a manager in all cases. It is our intention that where the agency has a branch, a manager should also be appointed for that branch. This will ensure that all the voluntary adoption agencies and adoption support agencies are appropriately managed. If we left in "in prescribed circumstances", it could cast doubt on whether the regulations can require that managers can be appointed in all circumstances. That is not what we intend, and I hope that this amendment is acceptable to the House.
My Lords, given my professional background, I feel that I must ask this question. I do not understand the extent to which the Government feel that they can dictate to voluntary and charitable organisations how they perform some of their functions. I can well understand that such a requirement should be set out in a service agreement or contract, but I really do not know why it should be included in primary legislation. Can the Minister explain why it should be included?
My Lords, if these agencies were entirely inward looking and responsible only to each other and to members of their staff, there would be no problem because they could have a co-operative or collaborative arrangement rather than a manager. However, these agencies are responsible to the outside world. They are responsible for implementing legislation. They are responsible to the birth families, to the adopting parents and to the adopted persons. Someone has to be responsible. In the end, it is an identifiable manager who has to be responsible. That is why we think that there should be a manager.
moved Amendment No. 17:
Page 9, line 23, at end insert "or assisting in providing"
My Lords, in the consultation document Adopter Preparation and Assessment and the Operation of Adoption Panels: A Fundamental Review, which we published last week, we promised to clarify that panel members may be remunerated for their contribution to the work of the agency. Many panels are currently experiencing problems with recruitment of panel members, with consequences for their ability to maintain full panel membership and to deal with adoption cases promptly. The stakeholder group involved in the fundamental review strongly felt that the ability of agencies to remunerate panel members is crucial to their ability to tackle the recruitment difficulties that they are experiencing, which will help to reduce delays in the assessment and matching processes. This would also help agencies to construct panels that are more representative of their local communities.
There seems to be a problem and some doubt among adoption agencies about whether they have the power to make these payments. We believe that it is important to clarify that in the Bill. I pay tribute to the work of panel members who do an important job. Clearly, it is important that where remuneration is appropriate, they should receive it. We are not talking about huge sums of money but modest payments which I am sure will help agencies and panels to do the job we are discussing as effectively as possible. I beg to move.
moved Amendment No. 18:
Page 9, line 39, at end insert "but shall in any event include determinations relating to—
(a) the suitability of prospective adopters at the adoption panel stage;
(b) the suitability of prospective adopters at the pre-panel stage;
(c) the supply of information concerning the child to any person including the child;
(d) the suitability of a child for adoption with particular prospective adoptive parents"
My Lords, Amendment No. 18 brings us back to what I consider to be one of the Bill's most significant innovations: the independent review mechanism. It is fair to say that our debates in Grand Committee dispelled several misconceptions about these provisions, at least, I am happy to admit that they did in my case. I am also particularly grateful to the Minister for writing to me fully at the end of July to amplify my understanding of local authority complaints procedures.
I have given a good deal of thought to this part of the Bill during the Recess. As I think I said before, I have a personal antipathy towards the general culture of complaining that we as a society seem to be drifting into. The compensation culture is, of course, another part of that same tendency and it is destructive. However, there are some important areas of our lives where we need long stops or safety mechanisms to second guess, if need be, decisions made by those in authority over us. Key decisions about adoption, when they do not go the way we want them to go, fall into that special category. That is why I believe that all of us involved in this Bill were quick to welcome the inclusion in it of Clause 12 which opens the way to the safety mechanism to which I have just referred in respect of key decisions on adoption.
We spent quite a bit of debating time examining the role of local authorities in handling complaints. I was doubtful—and I have to say I still am—about the ability of many local authorities to run their complaints service in a manner that commands public confidence. Nevertheless, I recognise the force of the argument that the Minister advanced, that in theory at least we have a system of handling complaints against local authorities that is at arm's length from the decision makers and that in principle it is a good thing if local authorities are responsible for keeping their own house in order in a timely fashion and with minimum interference from outside. We should encourage them in that responsibility—the theory is right. Adoption agencies are the bodies which shoulder the ultimate responsibility for decisions about adoptions and the professionals within them need to live by those decisions. In the last resort, the generality of local authority actions are subject to the scrutiny of the local government ombudsman.
So, to use the word that the Minister uttered in Grand Committee—and a very familiar word it is—there is a balance to be struck in terms of the range of determinations which it is wise and sensible to allow the review panel to pronounce upon. I fully recognise that there is flexibility in the clause as drafted to include new matters in the panels' remit in the light of experience over time. However, I suggest that there are four particularly crucial areas which should be included at the outset. I have listed them in my amendment.
A decision to turn down prospective adopters either at the adoption panel, or before they have even reached it, has such far-reaching implications that it is surely right that we give individuals the opportunity to have it reviewed independently. The same applies to a decision which, for whatever reason, restricts the flow of information about the child to the prospective adopters, or indeed, to the child himself. It is almost always right for the would-be adopters to be fully aware of all the relevant data relating to the child's background, his medical history, his behavioural record and so on. Only for exceptional reasons should such information be withheld. For example, if a child has at some time been sexually abused, the adopters simply have to know that in case specialist help is required later. We are talking about a duty of candour in the interests of the child. If that duty is ignored, there should be a right of review.
The last decision for which I believe that it is essential that the review mechanism is available is one which rules out particular prospective adopters as being suitable parents for a particular child. That kind of judgment even for the professional is a highly subjective one. I have heard of many instances where decisions of that kind appear to be manifestly unreasonable, if not perverse.
I realise that this is one issue where I am only likely to persuade the Minister of my point of view if he is more or less on side anyway. I should like to believe that he is. Certainly his helpful letter to me of last July indicated that the matters included in my amendment were ones which the Government felt should or could well fall under the review panels' remit. What we both want to see is a system that is fair and is seen to be fair. I believe that my amendment represents the minimum necessary to achieve that end. I look forward to the Minister's reply. I beg to move.
My Lords, I wish to speak to Amendment No. 19 which is grouped with Amendment No. 18. In doing so I congratulate the noble Earl, Lord Howe, on the elegant way in which he focused on the question which exercised all of us in Grand Committee; namely, the extent to which appeal mechanisms should be allowed or should be able to be used and the balance that needs to be struck between allowing those appeals and clogging up the whole adoption system.
In Grand Committee none of us expressed a wish to see a system which is already struggling to cope become completely silted up with endless appeals. The noble Earl focused on four of the key points on which people ought to have the right to an independent review.
In Amendment No. 19 I seek to provide the missing link which the Minister needs in order to make sure that adoption support services are provided in the way that he outlined; that is, locally and appropriately. I do not think that one can get much more local and appropriate than allowing individual families the right to appeal against a decision not to provide adoption support services. That strikes right at the heart of what we are all trying to achieve; namely, appropriate services for children and individual families.
As the Minister said in our earlier discussions on adoption support, performance across the country is extremely patchy. That sometimes results from the allocation of resources but more often it results from policy. At the moment it is known that some local authorities have policies of not providing support. If one is unlucky enough to live in an area covered by such a policy and yet have an adopted child for whom one is in great need of services, it is important to have recourse to some kind of independent review.
In Grand Committee we discussed at length, with much help from the noble Baroness, Lady Howarth of Breckland, whether local authority complaints procedures were an appropriate vehicle to use. I considered over the summer what was said about the use of such procedures. I was not convinced that they would be sufficiently independent, or seen to be sufficiently independent, to satisfy the needs of adoptive parents. Adoptive parents have to deal with many issues, many of which are highly charged and emotional. I have talked to many of them and to many of the organisations that represent them; they stressed that it is easier to accept an adverse decision if one has faith that the process by which that decision was made was fair. For many of them, an appeal to the same body that made the original decision is not fair. I therefore believe that such empowerment of parents is important.
As the noble Earl, Lord Howe, said, for the first time in the Bill we have an independent review of determinations, which is welcome. If and when such a body is established, widening the scope of its activities to a small extent, enabling it to function in the way that I have outlined and providing an appeal mechanism on the suitability of adoption support will not necessarily involve much further expense. We have a group of people who will be sufficiently skilled and experienced in the provision of adoption support and in making judgments about adoption. We should simply add one task to their list of jobs.
I therefore believe that this is an important matter. I do not believe that giving prospective adopters that power would extend their ability to challenge decisions so much that it will upset the careful balance under which the adoption system currently works. In fact, I believe that it will strengthen that because it will be seen to be fair by those involved. I therefore recommend the amendment.
My Lords, this is an important debate. The establishment of an independent review mechanism is a distinct step forward. Clause 12 enables the appropriate Minister to establish such a mechanism to review what are described as qualifying determinations that are made by adoption agencies.
We have already signalled our intent to provide for the independent review mechanism to review determinations about suitability to adopt and determinations about access to information. The issue of appeals in relation to suitability to adopt was floated in the White Paper. We extended determinations about access to protected information because the Bill underpins a new scheme for consistent access to information held by adoption agencies. Those agencies will be under a new obligation to take account of the views of the person the protected information is about and the welfare of the adopted person as well as all the other circumstances of the case and matters that may be prescribed in regulations determining whether to release that information. I believe that that is very important.
I hasten to add that in identifying those two areas for the independent review mechanism—it will come into operation in relation to them—our approach is not cast in stone. The important point is that the clause is constructed to allow for flexibility and response to emerging trends and potential problems. The use of a regulation-making power to set out which determinations will be reviewed by the independent review mechanism is intended to ensure that there is the flexibility to consider which determinations the mechanism could usefully be used for and, as I said, to allow for the list to be reviewed in the light of developing practice.
Setting out in the Bill certain determinations that the regulations must provide for the independent review mechanism to review removes some of that flexibility. If in the light of experience it were to prove undesirable for one of those determinations to be reviewed—if, for example, it proved to be disproportionately expensive to do so—the effect of the amendment would be to remove the flexibility to remove that determination from the list.
The amendment seeks to set out in the Bill the fact that the independent review mechanism will review adoption agency determinations relating to the suitability of prospective adopters both before and after the adoption panel stage and it relates to the supply of information about the child to any person including the child and to the suitability of a child for adoption by particular prospective adoptive parents; in other words, the matching stage.
Looking at the list of determinations suggested by the noble Earl, there are drawbacks to each of them. The first suggestion is that of,
"suitability of prospective adopters at the adoption panel stage".
The Government have stated repeatedly throughout the passage of the Bill that it is their intention for the independent review mechanism to review those determinations. I say to the noble Earl that we fully intend to prescribe that determination in regulations made under subsection (2).
The second suggestion involving determinations concerns,
"the suitability of prospective adopters at the pre-panel stage".
We understand and are sympathetic with the sentiment behind that suggestion. The PIU report highlighted the fact that a large number of people do not reach the panel stage. It identified a number of reasons why that happens. Some applicants are properly rejected as a result of police checks, medicals or negative references. It surely would not be appropriate for those applicants to apply to the independent review mechanism if they have failed to meet the minimum requirements on objective grounds. The review panel would be unable to tell the applicant any more than the social worker about the reasons for the rejection. Some people decide not to proceed as a result of having acquired more information about what is involved, having decided, perhaps, to pursue fertility treatment or become pregnant. Other reasons given for applicants not reaching panel stage include dropping out as a result of the assessment process itself (for example, it may be felt that the process is too intrusive). We are attempting to resolve problems in the assessment process through the recent review of adopter assessment and the consultation document issued last week. Key among the reforms suggested by that document is a desire to make the adopter assessment process as fair and transparent as possible across the country. Finally, it is suggested that some applicants are counselled out by social workers. That may be as a result of something that is revealed during the assessment process which persuades the social worker that the applicants are unlikely to be approved by panel and the social worker may feel that it is pointless for the applicants to go through the potentially stressful adoption panel stage when they believe that there is little or no chance of success.
That suggestion moves into an area of very skilled social worker practice. We believe that it is most appropriate to ensure that such judgments are handled as sensitively as possible and that full reasons are given to the applicants. The reasons given to applicants would need to be explained in the context of the "menu of issues" to be considered by agencies in adopter preparation and assessment, which is currently subject to consultation in the document, Adopter Assessment.
The third suggestion relates to,
"the supply of information concerning the child to any person including the child".
Again, we have made a commitment during the passage of the Bill to provide for the independent review mechanism to review determinations relating to access to protected information. Adoption agencies will be under a new obligation to take account of the views of the person who is the subject of the protected information, the welfare of the adopted person and all the other circumstances of the case and matters that may be prescribed in regulations and which determine whether to release the information.
The independent review mechanism will be made available to people affected by such determinations. That will provide an added safeguard to ensure that the views and best interests of all those affected are taken into account in deciding whether to release such information.
Of course, I understand that the amendment focuses on information about the child. But ensuring that protected information about adults, such as birth parents, is handled fairly and sensitively is an equally important part of the provision on access to information. We shall set out in regulations the detail of which determinations about supply of information will be capable of review by the independent review panel.
The fourth suggestion in the amendment is that the independent review mechanism should consider determinations about the matching process. Again, I have some sympathy with that suggestion, but I also have concerns that it could lead to delays in the placement of a child with suitable adoptive parents. I am very anxious that we cut out delays as far as possible. After all, that was one of the prime motivations in bringing this Bill before your Lordships' House. I suggest to the noble Earl that experiencing the mechanism in operation might enable us to assess whether it would be appropriate for it to be involved in reviewing decisions of this type.
In her amendment, the noble Baroness, Lady Barker, seeks to ensure that decisions not to provide adoption support services come within the purview of the independent review mechanism. We have already had a good debate on the wider issue of support services and, indeed, have discussed the wider range of potential support services which would come under the independent review if the noble Baroness's amendment were adopted. However, I believe that the issues of adoption support services are best dealt with through the mechanisms that I have already described, including the complaints system of the local authority, and through the performance management approach that the Government will take to ensure that local authorities do the right job.
However, the amendment of the noble Baroness, Lady Barker, brings us back to the core issue. The noble Earl, Lord Howe, always chides me about using the word "balance". Perhaps, to put it more accurately, he inferred that I use the word rather often. I do, and never is a word more appropriately used than in the construct of this Bill.
One of the key issues is that, in relation to the general principle of the extent to which decisions and actions of adoption agencies should be subject to independent review, I suggest a degree of caution. The principle of the independent review is very important. But I should be very wary of building in so many potential independent reviews that the agencies risked being ensnared in a heavy dose of bureaucracy, which could lead to staff being distracted from their core function. The end result of that would be delays in adoption proceedings—the very obverse of what we seek to achieve. Nor should we overlook the regulatory framework in which agencies will operate and the complaints system that will provide a further route for complaints to be pursued.
I believe that the most appropriate way to deal with determinations is to set them out in regulations. That will enable us to keep the list under review and provide the flexibility to add or remove determinations should it prove appropriate to do so.
In conclusion, I want to stress that I am by no means inflexible on this important issue. Last week, we issued the consultation document, to which I have already referred. It includes questions about the scope and operation of the independent review mechanism. We shall look at the responses to the consultation and shall consult on the regulations to implement the independent review mechanism. Of course, the matters raised by noble Lords in today's debate will be fed into that consultation process.
Having listened very carefully to the debate, I shall go further and say that we shall review the operation of the independent review mechanism after it has been fully operational for two or three years. In that review, we shall consider specifically whether the list of determinations should be extended from that initially set out in regulation. I cannot be fairer than that.
This is a new procedure. Surely it is best to reassess the scope of the review in the light of experience. We shall use the time to consider whether the mechanism could make a useful and effective contribution to other decision-making processes by adoption agencies. However, I believe that, by offering a review after two or three years of operation, I have indicated how the Government can respond flexibly in the light of experience.
My Lords, once again, this has been a very helpful debate. I am grateful to the Minister for his reply. It was pleasing to hear that paragraph (a) of the amendment was one with which he had a good deal of sympathy. He indicated that the suitability of prospective adopters at the adoption panel stage was one matter that the Government intended to include within the scope of the review mechanism.
However, I was not convinced by the objections that he voiced to paragraph (b) of the amendment. Where a couple withdraw from the adoption process for their own reasons and of their own accord, I should not have thought that that in any case would be a matter for review. I appreciate that social workers have their reasons for rejecting candidates, and that is the type of situation at which that part of the amendment is directed. Of course, such matters need to be handled sensitively. However, I have heard of too many cases where seemingly suitable parents have been rejected before they have even got off the ground in the process, and I find that very troubling.
I note what the Minister said about paragraph (c) being too restrictive. I shall go away and think about that. Nevertheless, I am grateful that he said that the supply of certain kinds of information is one of the matters under consideration as regards the appropriate regulations.
Paragraph (d) of the amendment did not find favour with the Minister either. He said that, if it were accepted, it could lead to delay in the adoption process. I note that point and shall give it further thought.
My Lords, I am trying to say that none of the suggestions put forward by the noble Earl is without merit, although there may be some problems with the specifics of what he suggests. When one comes to the heart of the matter, the substantive issue is that we believe it is better to allow ourselves flexibility in the legislation so that we can keep the issue under close review. If it seems that another area should come under the independent review, I can ensure that that will be done in a fairly straightforward way through regulations.
My Lords, I understand that, and I believe that it is, indeed, a sensible way forward. I appreciate that there is flexibility in the clause, and that is welcome. However, I do not quite understand what would govern a decision by Ministers to include a particular type of determination within the scope of the independent review mechanism. But perhaps that remains to be seen.
As I said, the debate has been enlightening. I shall leave it to the noble Baroness to decide what she chooses to do with her own amendment, which, so far as I can see, is separate and discrete from my own. I beg leave to withdraw the amendment.
My Lords, following the excellent precedent set by the noble Lord, Lord Campbell of Alloway, I rise simply to say that I shall not move my amendment. In doing so, I wish to thank the Minister very much for the assurances that he has given us about the proposed review. I take the opportunity to say to him that that will be subject to intense scrutiny when it returns to this House. Any suggestion that there is insufficient evidence of the effectiveness of any of the regulations because of devolved decision making to local authorities will bring him short shrift from this side of the House. If his performance management framework does not come up with the goods he will find himself back with a fight on his hands.
My Lords, in the light of those remarks, does the noble Baroness think that she should revisit her party's new statement on relationships between central and local government?
No, my Lords, I do not. If the Minister reads what is a thorough document about how to make such systems work, he may find it educational. I do not want in any way to detract from the issue. We all recognise that the points raised by the noble Earl, Lord Howe, and by me are of extreme importance. We shall take what the Government say in guidance and regulations but in two or three years' time we shall be back carefully to consider the matter. I do not intend to move the amendment.
My Lords, in Committee a number of concerns were articulated on the provisions in the Bill regarding placement orders and placement by consent, which is an extremely important part of the Bill. In particular, such concerns related to potential conflict with the Children Act and the unnecessary complexity regarding the implications of parents giving consent to placement. First, in circumstances where a parent consents to adoption and subsequently changes his or her mind, he or she cannot remove the child even if the child has not been placed for adoption. It may be reasonable for there to be some delay in cases where the child is placed with adopters, but it is difficult to see the reason for delay where the child is not even placed.
Secondly, in situations where a relinquishing mother consents to the adoption placement and obstructs the local authority from ascertaining the views of the father without parental rights and the views of the wider family, the adoption agency faces the dilemma of whether to place with consent or insist that the father and possibly the wider family are consulted. Thirdly, a birth parent can give consent to placement even before the child is six weeks old and can then be committing a criminal offence if they changed their minds and tried to take their child home. Fourthly, where babies are placed for adoption under six weeks, their status in the placement is unclear once they reach six weeks of age. At that point the mother can give valid consent to placement but, if she does not do so, if she cannot be found, if the CAFCASS officer is not available to see her on day 42 or is not satisfied that she can give valid consent, what is the status of the placement? Is there not a danger that the child will have to be moved to a temporary foster placement?
In Grand Committee the noble Baroness, Lady Andrews, gave a helpful outline of the safeguards which the Government believe address such concerns. However, we do not believe that those safeguards are sufficient, for the following reasons. First, the noble Baroness stated (at col. CWH 136 of the Official Report of 2nd July 2002) that there will be regulations on counselling parents. The agency will be required to counsel parents and to spell out to them the full implications of what they are agreeing to. The noble Baroness stated:
"In that way, everyone will know what they have signed up to".—[Official Report, 2/7/02; col. CWH 136.]
How will that work in practice, with parents with mental health problems or learning difficulties, or even with those who are inevitably distressed at the position in which they find themselves?
The second safeguard mentioned by the noble Baroness was that the consent would be witnessed by a CAFCASS officer. Similar concerns apply, but the task for the CAFCASS officer will be even harder as he or she will have only a limited opportunity to get to know the parents whose consent is sought and to assess their level of understanding. Either they will rely too much on the information provided by the agency, thus compromising their independence, or they will have to undertake a detailed assessment of the parent's capacity, thus adding to delay. As there will be no current court proceedings, they will not have the option, as they would under the current procedures, of referring the case back to the judge for further directions.
The third safeguard articulated by the noble Baroness was that consent would be in the prescribed form,
"which will spell out clearly what is being agreed to".
A number of agencies attempted to draft such a form. The complexity that they arrived at shows the problems attendant on that approach. Certainly, the form would be sufficiently complex for parents to be deterred from being able to sign it.
The fourth safeguard mentioned by the noble Baroness is that,
"adoption panels, with all their expertise and independence ... [will have] played a leading role in ensuring that the proper work had been done before any decision was taken that adoption was in a child's best interest".—[Official Report, 2/7/02; col. CWH 137.]
While that provides potential safeguards, there is no guarantee that all panels will operate to the same high standards. Their independence is only partial. Present regulations require some independent members, but they are not in the majority. In any case, panels make only recommendations which can be overruled by the agency decision maker. There is a risk that local authorities, anxious to meet the Government's target of a 40 per cent rise in adoptions and to avoid delay, may reject what are seen as unnecessary obstacles put in their way by the panel. Although it may be thought that adoptions where a parent is apparently requesting and consenting to adoption are straightforward, practitioners can demonstrate that that is often far from the case.
The fifth and last safeguard mentioned by the noble Baroness is access to the court for a placement order, or using the court's inherent jurisdiction. As the Bill is currently drafted, the placement order route is available only if there is evidence that the child would be likely to suffer harm under Section 31 of the Children Act. There is a danger that either the interpretation of the necessary threshold for significant harm would be watered down to bring more children within the remit of a placement order, or that the court will have to fall back on the inherent jurisdiction, which is exercisable only in the High Court.
When the Children Act 1989 was introduced, a key principle was that the inherent jurisdiction was to be used only in the most exceptional circumstances; basically, those that were not anticipated when the statute was passed. It must be wrong to introduce new statutory provisions on the basis that they contain a gap which can be filled only by recourse to the inherent jurisdiction.
In addition to those specific points, we on these Benches are concerned that the Bill as drafted will not achieve the Government's goal of reducing the uncertainty for adopters in consent cases. First, the adopters cannot lodge an adoption application until the child has been with them for 10 weeks. At any point up to then the parent may withdraw consent. If she does so and requests the return of the child, the continuation of the placement is entirely dependent on the willingness or otherwise of the agency to make an application for a placement order. The adopters are powerless to do anything. Secondly, even after the application has been lodged, it is open to the parent to seek the court's leave to oppose the order. It seems likely that the court would be more willing to grant leave in cases where there has been no prior court hearing and where there might be issues about the parent's proper understanding of the consent. That uncertainty for the adopters, although not completely unavoidable, is more likely to be avoided if a placement order had already been made confirming the consent.
The aim of Amendments Nos. 20, 22, 23, 25 and 26 is that there should be a placement order in every case, including where the placement is by consent. The advantages of that would be, first, that the significance of the decision being made by the parent in consenting to placement would be underlined to that. That is particularly important in view of the restrictions placed by the Bill on the parent's ability to withdraw their consent and contest the making of the adoption order. Secondly, the complicated provisions contained in Clauses 30, 32 and 34 would not be needed; it would be enough to provide that the making of a placement order operated to restrict the parent's right to remove the child without the leave of the court. Thirdly, a child and prospective adopters would have greater protection against disruption of the placement. Fourthly, any outstanding issues or queries concerning, for instance, the involvement of fathers without parental responsibility, or members of the wider family, could be resolved by the court prior to the child's placement. Such a course is advocated by the President of the Family Division in Re H and Re G in 2001.
Although having a placement order in every case may appear to create extra delay and expense—as alleged in Committee—we do not believe that will occur in practice. If the consent is genuine, the court hearing can be brief and should be fitted in without unnecessary delay. Court timetables will always be under pressure but it cannot be proper to introduce legislation where rights are curtailed by inadequate Court Service provision. In terms of court resources, a small amount of court time at an early stage must be preferable to lengthy hearings at a later stage that have to address issues not already explored.
If the consent is not genuine or is confined to the mother only but the father or members of the wider family wish to care for the child, it is appropriate that should be ascertained and adjudicated upon by the court before the placement is made—as envisaged by Clause 1. Otherwise, delays may occur at the adoption hearing, when the father or the wider family may be making applications for contact or residence orders.
Issues about the extended family or father without parental responsibility being able to care for the child need to be able to be raised, to ensure compatibility with the European Convention on Human Rights. While the agency will, if it follows good practice, consider those issues or should have done so, a court hearing before authorisation is given to place the child will provide the opportunity for the issues to be raised in a judicial forum. If they are not raised until the final adoption hearing, not only will that cause delay but it will almost certainly be damaging for the child and distressing for the adopters.
There is a particular issue with regard to fathers without parental responsibility. Clause 52(9) and (10) provide that a father who may never have been aware of the adoption plans will be deemed to have consented in the same way as the mother if he acquires parental responsibility after the placement has been made. That must be incompatible with Articles 6 and 8 and is therefore likely to be challenged under the Human Rights Act 1998.
Amendments Nos. 31, 35, 39, 40 and 42 are also based on the premise that there should be a placement order in every case—even where consent to placement is forthcoming. The amendments aim at ensuring that once a placement order is made following judicial scrutiny, the placement should not be disrupted without the leave of the court or the consent of the agency. The advantage for the adopters is that they will know that if a child is placed with them under an order, even if it was made by consent, the placement cannot be disrupted by a parent who has changed his or her mind without the court being satisfied that there is a sufficient change in circumstances to merit sanctioning a move.
The terms of the placement process are not satisfactory. Where a child is placed with adopters following consent, of course there needs to be a mechanism that enables the agency to have a time window, to make satisfactory arrangements for the child, and—where the agency decides that it is not in the child's interest to return to the parents—to make a court application. In the latter circumstances, it is an essential safeguard for the right of parents and the child to family life and consistent with the parallel provisions in the Children Act 1989 that the onus should be on the local authority to satisfy the court that there are grounds for refusing to return the child.
The noble Lord, Lord Hunt, stated in his letter to me of 5th August that,
"where a child has been voluntarily accommodated and the local authority then decided that the child should be adopted and applied for a placement order, as currently drafted, subsection (2) of Clause 29"— now Clause 30—
"would prevent the parents or anyone else from removing the child while the application was pending unless they had the leave of the court".
Under the Children Act 1989, where a child is accommodated the local authority must make an agreement with the parent about the plans for the child. If they are unable to reach agreement and the local authority is satisfied that the child would suffer significant harm, it would apply for a care order. To prevent the child's removal, the local authority would need to apply for an emergency protection order or interim care order. The parent would have the opportunity to challenge in court the local authority's plans at the earliest possible stage—and if the child were not returned, to seek a contact order pending the final hearing.
Contrast the terms of the Bill. If the provisions of the Bill remain as drafted, the parents' access to court may well be delayed and their chances of ultimately recovering the child would be reduced. That falls short of the Government's stated intention of ensuring fairness for birth parents. The balance in the Bill as drafted is wrong and I hope that the Government will listen and make appropriate changes. I beg to move.
My Lords, the noble Lord has succinctly described his concerns, which I share. I spoke to similar amendments in Grand Committee.
We return to that well-used but important word "balance". It is difficult to get the correct balance of rights and obligations in a Bill of this kind but we should make certain that we do our best.
I remain distinctly uncomfortable that parents who have consented to placement but never to adoption will be unable to oppose the making of a final adoption order unless the court gives them leave to do so. While we all accept that the welfare of the child is paramount, that cannot be an excuse for overriding the rights of parents. We need constantly to remind ourselves of the finality and irrevocability of an adoption order.
The beauty of the amendments is that they simplify the legal framework for placement orders—which, as the Bill is worded, is exceedingly complicated. On a more substantive level, any aspect of the Bill that puts people off giving their formal consent to a placement is a bad thing. This part of the Bill may be a case in point. I agree with the noble Lord that while there are safeguards, they are not as robust as they should be. After all, formal consent to placement is an administrative process. It is not judicially supervised. A court may never have to consider whether the parent's consent to adoption is forthcoming.
I am fully supportive of the Bill's intent of ensuring that parental consent is dealt with as far as possible prior to placement, to give the child and the adopters certainty from an early date. But when it comes to the parents' rights then, as the noble Lord concluded, the balance seems to be wrong.
My Lords, I rise as a mere social worker in the face of cogent arguments from lawyers—particularly the noble Lord, Lord Clement-Jones. It is difficult to follow the arguments in detail, so I will make two simple points.
The separating out of parental consent and the rights of parents to reconsider has been argued by many agencies—particularly the Family Rights Group. I would separate that issue from the prospect of every family wanting to adopt having to go through a court appearance. Because of the Bill's complexity, those two aspects have become so intertwined that it is difficult for families to see how their rights are being protected.
I continue to take the view that if consent has been given, where there is a clear assessment and little likelihood of that consent being withdrawn, it would be detrimental to take the family through the court process—which is always stressful, however kindly intended, and adds time. All the courts are in difficulty. With respect to the noble Lord, there is a real issue about saying that one can legislate, then find time. There are delays in all children court processes at this time. This would simply be another delay. We are not likely to find a great deal more time by whatever procedures. I have looked at this aspect and talked to people. It is no use saying, "We will find time in the morning"; mornings are used for other issues in court. Therefore, it means extra time.
The argument that if one gets the matter right early one will not have to spend a great deal of time later is the argument for ensuring that time is available for the complicated cases. It is essential that those are heard thoroughly and properly.
We place huge emphasis on the judicial process. What is so magical about a judge hearing the issues and making a judgment as against a panel of people who make their judgment from a good professional basis? I still feel that a panel in these cases will have made in-depth assessments. I have even more confidence in panels after seeing the content of the review. As an aside, I believe that all those people who have complained significantly about the intrusiveness of adoptive processes will find that review extraordinarily interesting with regard to what we expect an assessment to look at and to go through.
In cases where there is a danger that consent will be withdrawn a court order should be obtained. However, I am still firmly of the belief that, where there are families and where the issues are straightforward, we should get those children adopted as rapidly as possible, as painlessly as possible and as supportively as possible.
My Lords, I am grateful to all noble Lords who have spoken in the debate and who, just as in Committee, have shown such great concern in getting the process absolutely right in this new development in terms of adoption.
The amendments propose fundamental changes. We debated a similar set of amendments in Committee. We have listened very carefully. I could not write fast enough to take down all the points of the noble Lord, Lord Clement-Jones. I shall try to answer as many as I can, but I may have to resort to writing to the noble Lord about some of them.
I do not want to reiterate what I said in Committee. But I want to say that we are rather delighted that the concept of placement has the agreement of all parties. The significant change is that we have shifted the burden of the decision to the front end of the process—to the placement process. I believe that it is because we have built in so many assumptions about the placement process itself—the support, the dignity and the quiet rehearsal of the issues in that end of the process—that we will be able to resolve satisfactorily the kind of issues in the determination of consent that the noble Lord raised today.
Let us reflect on the present system. Essentially at the moment we have this cliff-hanging opportunity at the adoption hearing process. The fate of the child hangs in the balance as birth and adoptive parents face a high noon of argument, indecision, uncertainty and often contradiction. That is precisely what we want to improve on.
The two routes we have opted for are: first, placement with consent; and, secondly, placement by way of a placement order where parents do not consent. They are, we believe, proportionate and sensitive because they reflect the difference in the situations of those families. To that extent we believe that there is a big improvement for both sets of parents. It reduces the fait accompli for the birth parents who come to the adoption hearing not knowing what will happen and then finding that the child's placement has been decided on. Of course for the prospective adopters there is the possibility of the contested court hearing.
I want to stress—this was an issue raised a good deal in Committee—that a parent who has consented to the placement of a child can withdraw his consent at any stage up to the point where the application for adoption is made. Every parent can still contest the final hearing if he obtains the leave of the court and there has been a change of circumstances. So the placement by consent route is, by definition, intended to be entirely voluntary.
I turn to the points made by the noble Earl, Lord Howe. I believe that we have the balance right in the Bill. The protective mechanisms built in for the birth parents will be sufficient to make sure that their human and civil rights are properly safeguarded. As I deal with the amendments I hope that I shall be able to demonstrate that. We believe that we have constructed a fairer, more open and more certain process, both on behalf of the parents and of the child.
I turn to Amendments Nos. 20, 22, 23, 25 and 26. They seek to remove the placement by consent route that I have described and require a placement order to be made in every circumstance, no matter what the family condition is. The amendments also provide that, where the parents consent, a placement order could be made without the "significant harm" threshold in the Children Act being met.
The first issue raised by the noble Lord was that requiring a court order in every case means that the agencies would be able to seek the court's guidance in cases where they were having difficulty deciding how to consult and how to involve married fathers without parental responsibility. He also argued that the use of a placement order in every case would allow the provision covering removal from adoptive placement to be recast and, therefore, it is argued, simplified. He also disputed that there would be delay, of which we believe there is a high risk and which outweighs some of the benefits he describes. He also raised some specific questions about the nature of the support available to the families when they were considering whether or not to consent.
I shall deal with a few of those specific points first. As to the question of placements and the status of new babies, for example, after six weeks, the issue has been raised in detailed discussions. We have recently discussed this with the AS and with the Family Rights Group. We are giving it careful consideration. If we conclude that changes are needed to put the status of children beyond doubt, we will introduce the necessary minor amendments at Third Reading. Clearly, we do not want to leave any confusion or indecision. I hope that that helps the noble Lord with regard to the specific case of young babies.
The noble Lord also raised the question of whether or not there would be sufficient support to help the parents who chose consent where there were learning or health difficulties. We also know that in such complex cases there are often special needs issues which need to be addressed. We believe that agencies will be able to use their available skilled social workers, and, if they are in any doubt about a family, they can apply for the placement order. Therefore, that is always an option for them.
Perhaps I may now turn to the safeguards. The noble Lord carefully went through all the safeguards that I outlined in Committee. I reiterate that we believe that intimate and intense discussions are far better than a court appearance, which would be involved in a placement order, in the process of assisting parents to reach a proper decision—the right decision—about their child, for all the reasons which the noble Baroness, Lady Howarth of Breckland, spoke of so powerfully both in Committee and today.
The noble Lord was sceptical about CAFCASS officers. They are brought in at the next stage. I stress that they are fully independent. Their key task is to ensure that consent is given properly and that parents fully understand what they are consenting to. I can assure the noble Lord that the prescribed form will be consulted upon. Clearly if there are difficulties in creating such a form and making it accessible, we need to take proper advice. The consultation will see to that.
The ultimate safeguard is the indisputable right of the parents to withdraw consent and to have the child returned to them right up to the point at which the application for an adoption order has been made. We believe that these safeguards will meet the concerns expressed, that they are sufficient to ensure that parents understand the significance of what is involved, and that their interests are protected throughout the process.
However, let us consider the other issues about which genuine uncertainty may exist. There is nothing in the Bill at present that obliges the authority to go down the consent route, even if the parents are willing. If there is a potential case of "significant harm", the option of going for a placement order is available. So it is not only directed towards the parents; there is also a degree of flexibility available.
The noble Lord argued that court intervention would ensure that everyone was consulted. He expressed particular concern about the unmarried father and about instances where the agency might not know whether the unmarried father had given his consent, or whether he had even been consulted. It is an important area, especially given the existence of the Human Rights Act. We fully understand the concerns expressed. However, we are sure that the Bill's provisions are compliant with the ECHR. We are as concerned as noble Lords opposite to ensure that involving fathers should be at the heart of the Bill. Indeed, wherever possible, we have built that consideration into the legislation.
Clause 1(4)(f) places an obligation on the adoption agency to consider the views of the child's relatives and of others who have a significant relationship with him. We expect the expert adoption panels, to whom the noble Baroness, Lady Howarth, paid a powerful tribute, to play a fundamental role. Given the review to which I referred, we are confident that they will be able to do so. We have also given a clear commitment that regulations and guidance to the new adoption agencies will underpin those obligations to ensure that the views are properly and widely explored.
It was overlooked in Grand Committee, but Clause 109 means that more unmarried fathers will be able to acquire parental responsibility because they will be able to register jointly the birth of their children. Again, there is an obvious route into the courts. I hear what the noble Lord says about inherent jurisdiction, which is always an option, but I want to emphasis what I said in Grand Committee; namely, that we are more than willing to consult on whether specific provision should be made in court rules for an application to the court in these cases. It would mean that there would be a purpose-built solution for agencies to use and a direct route to court for difficult cases, rather than relying on simple, inherent jurisdiction.
Noble Lords should be aware that running through our approach is the whole question of proportionate and sensitive responses to different situations. We should bear in mind the fact that the reasons why children are placed voluntarily in accommodation means that they have often been relinquished, that they have no home to return to, and that, often, their parents have been inadequate for many years. Therefore, we need to act to assist them. We believe that a placement order process will actually introduce delays.
I listened to what the noble Lord said, but, if we meet our targets, we are talking potentially about another 600 children a year. At present, 430 children a year are placed voluntarily in care. We are saying to the families and to the children that we are imposing a court stage, which is not available at present. As reiterated during the summer through advice from the Lord Chancellor's Department, the judges' pre-list time is already occupied with other work. I cannot believe that these non-contested cases where all the families are in agreement will take any priority over urgent injunctions or pressing family proceedings. We should remember that a child's time-scales are not the same as those of an adult: weeks are endless, let alone months. We want to ensure that we cut down and remove any possibility of delay. That is why we are standing firm on this issue.
I turn to the second half of the story; namely, Amendments Nos. 31, 35, 39, 40 and 42, which concentrate on the provisions covering removal from adoption and are very closely linked. I listened to what the noble Lord said in that regard. Through a combination of Clauses 19 and 52, the Bill as currently drafted ensures that in placement with consent cases parents can change their minds about placing the child for adoption at any stage up to the point at which an application for the final adoption order is made. That is an important point. Under Clause 42, there must be a minimum of 10 weeks between the child being placed with prospective adopters and being able to make an application. During that period, we very much hope that the child will get to know the family and that the consent will stick.
Clauses 30 to 33 set out what is to happen when parents change their minds. These clauses establish the restrictions and rules regarding removal. The noble Lord commented that they are complex. I tried to persuade him in Grand Committee that they are really very simple. Certainly, the result that they deliver is simple. There are three basic rules to consider: first, only an adoption agency, not the parents, may actually remove a child from placement. Given the sensitive nature of the process, that must be right. Secondly, where consent to placement has been given and the parents subsequently withdraw it with the request that their child be returned to them, the adoption agency must comply within a set period—seven days where the child is under six weeks of age, or is accommodated by the agency but is not yet placed with the prospective adopters, or 14 days where the child has been placed with prospective adopters.
Thirdly, the only exception to this return is where the agency is a local authority and, despite the fact that the parents have withdrawn consent, it considers that the child should still be adopted. In that case, application must be made for a placement order but it must be done within the seven or 14-day period. That is the procedure.
The noble Lord's amendments follow on from his proposal that Clause 19, which deals with placement with consent, should be removed from the Bill. As a consequence, a placement order would apply to everyone. This is reflected in the changes proposed to Clause 30 by these amendments and by the opposition to Clauses 31, 32 and 34 standing part of the Bill. Once a placement order was made, these changes would mean that the child could only be removed from the placement by the local authority. The parents would have no right to request the removal of the child or to have the child returned to them within a set period, as is the case under Clause 19. All they could do would be to return to the court to get the order discharged. Even then, they could only do so if the child had not been placed.
I do not believe that that proposed change is very fair to parents. The Government continue to believe that there should be an alternative route for parents who consent, and that parents should be allowed the opportunity to change their minds. This is a major change from the current position. The noble Lord should carefully consider his proposal. Under Section 20 of the Children Act, 400 children every year are placed for adoption. At present, the parents of those children can exercise their right at any point under the section to have their children returned. However, that possibility would not exist under the proposed amendments. Parents would lose their ability to secure the return of their child without going to court.
We believe that it is well worth keeping that voluntary option open, with the actual return to the parents being handled through the agency. Therefore, the restrictions proposed by the amendments now before the House go too far. To reiterate: rather than expanding the rights of parents, we believe that these amendments would actually diminish them. In both principle and practice, our argument is that the route available under Clause 19 is potentially valuable and that it should be retained.
Finally, I turn to the government amendments, which are minor and upon which I do not wish to detain the House for too long. Amendment No. 41 simply corrects a drafting error in Clause 34, which deals with the restrictions in removing children under placement orders. Only local authorities can apply for placement orders, but the clause currently refers to the "agency". The amendment merely corrects the wording so that the clause refers to the "authority". Amendment No. 45 relates to Clause 41, which covers the court's powers to make an order for the recovery of a child where someone fails to comply with the obligations to return the child set out in the earlier removal provisions. The amendment ensures that the court has this power where adopters breach the provision, which is to be added to Clause 31 by government Amendment No. 38, on the return of a voluntarily placed child under six weeks old. We shall be discussing the latter shortly under another amendment. I hope that noble Lords will support these minor corrections.
My Lords, I thank the Minister for her vigorous exposition of the Government's case. She fired some heavy artillery in this direction in response to some fairly heavy artillery from these Benches. There are clearly strong feelings and a fundamental difference about how placement is structured. There is no getting away from the fact that it is difficult to find common ground at this stage. It is partly a matter of the detailed drafting of the Bill, but it is also a matter of perception. The noble Earl, Lord Howe, both in Committee and on Report used the word "finality". Although the noble Baroness prays in aid certain provisions, it is the feeling of finality once consent has been given to a placement that is at the root of this. Those of us who tabled the amendment clearly want to go down the route of airing a placement order. That carries with it the corollary that we do away with all of the other aspects, such as the withdrawal of consent and so on, in the adoption order process.
An interesting phrase used by the noble Baroness, Lady Howarth—I think—was that if there is a danger of consent being withdrawn, the agency could go to court. In fact, that is a middle way not currently covered by the Bill, as I read it. Either one is given consent or one is not and goes to court. If the local authority is uncertain whether the consent will endure, at the least it should be able to apply for a placement order. That is not provided by the Bill as drafted.
Just as I delivered a fairly high frequency and volume of words in a short space of time to keep your Lordships' attention, the words of the noble Baroness clearly need further consideration. If we can find a way through this without doing away with the current placement by consent, that would be valuable. The Government have not got the balance right; there are circumstances in which the agency should be able to apply for a court order. That would be a way to resolve the matter. But at this stage, consideration of the Minister's words would be valuable. In those circumstances, I beg leave to withdraw the amendment.
moved Amendment No. 21:
Page 13, line 17, at end insert—
"( ) An adoption agency may only place a child for adoption with prospective adopters if the agency is satisfied that the child ought to be placed for adoption."
My Lords, in Grand Committee we debated a similar amendment tabled by the noble Lord, Lord Clement-Jones—Amendment No. 51. He intended to provide that an agency could place a child for adoption only where it was satisfied that the child ought to be so placed. His intention was a mixture of probing and principle: to establish what decision-making process we intended should lead up to the placement of a child by the adoption agency, given the importance of the matter.
His suggestion was an admirable one that would improve the Bill's drafting and we have tabled this amendment as a result. Its intention is to make explicit in the Bill what is currently implicit and what we always intended to be the position as set out in agency regulations: that an adoption agency may place a child for adoption only where it is satisfied that the child ought to be so placed. In other words, there must be a conscious and careful decision-making process, focusing on the needs of the child, before a child can be placed for adoption. I think it is sufficient to have say that we commend the amendment, given that the process will be laid out in regulations. I beg to move.
moved Amendment No. 24:
After Clause 20, insert the following new clause—
(1) Subject to section 52(3), where an adoption agency is satisfied that each parent or guardian of a child has consented to the child being placed for adoption at birth, the adoption agency must place that child as soon as is reasonably practicable with prospective adopters, subject to the rights of the birth parents to withdraw their consent, or alter the arrangements, in accordance with conditions which shall be specified in regulations.
(2) Where, upon application by a local authority, the court is satisfied, on the grounds set out in subsection (3), that the consent of a parent or guardian should be dispensed with, it may authorise the placing of the child with prospective adopters without first making a placement order, provided that the local authority shall apply for a placement order as soon as is reasonably practicable thereafter.
(3) The grounds referred to in subsection (2) are that—
(a) the parent or guardian cannot be found or is incapable of giving consent; or
(b) the child is otherwise likely to suffer significant harm.
(4) Subsections (2) and (3) apply only to children under the age of three months.
(5) A child who, under this section, is placed for adoption with prospective adopters by a local authority is looked after by the authority."
My Lords, the amendment returns us to an issue that I raised in Grand Committee: my concern about baby adoptions. In times gone by, a large number of babies were adopted, but during the past 30 years that number has dwindled. Nowadays, there are about 200 baby adoptions a year from the care system. The reasons for the decline are not hard to identify: more efficient contraception, legalised abortion and, of course, many single mothers keeping their babies. However, that has meant that if you are a mother to be or new mother looking for information and expert advice on the possibility of having your baby adopted, that is often difficult to find. The expertise is fragmented.
However, that is not the whole story, because there is almost a self-fulfilling prophecy at work here. Women who want to explore the possibility of adoption find that they cannot do so, with the result that fewer babies are available for adoption, which in turn ensures that baby adoption services are cut back still further. One manifestation of that is that there are now no mother and baby homes in the south-east of England. I am worried about that. The obvious answer is to concentrate expertise and resources for baby adoption in a few independent, specialist adoption agencies and to have a national support service for women who want to consider adoption of their babies. The aim of such specialist agencies would be to take a holistic approach and to provide mothers and prospective adopters with a complete service.
That is the ideal. I hope that the Minister will take that concept away to consider it. But in the meantime, we ought at least to consider ways of improving the life chances of those very young children who, for whatever reason, do not stay with their mothers. The key failing of our current system is that it allows babies and very young children to be shunted from pillar to post—from one foster family to another—before eventually, if they are lucky, being adopted. One study found that some infants underwent four or more moves that were not at the behest of the fosterers.
If our adoption services were really efficient and effective, they would not countenance such a thing. They would ensure that babes relinquished or abandoned by their mothers or taken indefinitely into care were placed as quickly as possible with a set of prospective adopters. One case brought to my attention involved a mother with a serious drink and drugs problem that made it impossible for her to care for her children. She had had three babies by different fathers, all of whom spent months in care before being placed for adoption. With a little forward planning during pregnancies, adoptive parents could be identified and approved so that vulnerable babies such as those were placed without delay after being born.
That is what the amendment is designed to facilitate. In Grand Committee, the noble Baroness gave me a most thoughtful and sympathetic answer, for which I was grateful. She reassured me that in broad terms the Government were of the same mind as me on the issue of baby adoptions. I was glad to hear that. She pointed in particular to Clause 18(1), which allows adoption agencies to place a child for adoption without the formal consent given under Clause 19, provided that the parents agree.
I was, however, left with two main concerns. First, there is nothing in the Bill that specifically flags up the small-scale but important issue of baby adoptions and the need for a fast-track procedure to be put in place as the norm. The pillar-to-post syndrome that I mentioned is not addressed in the Bill. That criticism applies as much to cases in which there is parental consent as to those in which there is not. There must be an explicit signal in the Bill that points up best practice for baby adoptions. That is what the amendment would do.
I am aware of the issue of consent. Even if a mother agrees to have her baby placed for adoption, the Bill does not bind her to that agreement, if it is given less than six weeks after the child's birth. That is as it should be. However, the existence of that provision should not be an excuse for forgetting the long-term welfare of the baby. A proper adoption plan for the baby, made in good time to ensure that it is placed with prospective adopters soon after birth, is the right way to proceed.
If there is no consent, the situation is different. I hope that such a situation will be rare. My amendment suggests that, if the parent of a child cannot be found or is mentally incapable or if a court determines that the child is at risk of significant harm if he or she is not removed from the parent, the local authority should be permitted to place the child with prospective adopters, before obtaining a placement order.
The Minister suggested to me that such a provision was unnecessary because, if a child were at risk, the local authority could apply for emergency protection orders or interim care orders. That is, of course, so. However, what she said failed, once again, to address the need to send an explicit signal to the adoption services. As far as possible, they should aim to send such babies to prospective adopters who, all being well, will become their new parents. At all costs, we must try to spare babies frequent changes of foster placement; it does dreadful damage.
I would like the Minister to comment on some remarks that she made in Grand Committee, when responding to me about training. What worries me is the lack of expertise and the lack of empathy among professionals who are the first point of contact for mothers seeking help and advice about possible adoption of their babies. There will never be large numbers of such women, but those who come forward must be treated with sensitivity and a positive, supportive attitude in their decision making, during the pregnancy and before and after the adoption process. I should be grateful if the Minister would elaborate on her comments of 2nd July, when she said:
"As to in-depth counselling and so on, we will be able to consult with the agencies on the nature of those consultations".—[Official Report, 2/7/02; col. CWH 150.]
The Minister also said:
"The draft practice guidance to support the National Adoption Standards encourages as much counselling and support as possible to be given to the parent before the birth...It will ensure that the mother will know all the options and will not feel that she is being pushed into a corner where there is only one choice".—[Official Report, 2/7/02; col. CWH 149.]
The last thing that any of us wants is for birth parents to feel pressurised into relinquishing their babies. However, I am worried about the training, expertise and time available to social workers and other health professionals for the counselling and support work that the Minister mentioned. How realistic is it? I have a picture of baby adoption being given cursory consideration—if any—even when the birth mother does not feel able to look after the child herself and seeks information about adoption as a realistic option. Without the kind of concentrated, specialist service to which I referred, I cannot see how counselling and support services will be there for the women who need and want them. How do the Government intend to make them a reality? I beg to move.
My Lords, I shall intervene briefly, as I had not picked up this important amendment. However, I must emphasise the extent to which the first 33 months after conception are critical to the development of the child's brain. I am sure that your Lordships are aware of that. There has been a great deal of new research in the past two or three years on that issue. Every day in the life of a little child is precious, as it bonds with someone who loves it permanently, gives it the support and confidence that it needs and teaches it to communicate. If the suggestion that the noble Earl, Lord Howe, made helps us to avoid delays of even a few weeks, we should accept it.
My Lords, in speaking to this amendment, I shall also speak to Amendments Nos. 36, 37, 38, 59 and 60.
I shall start where the noble Earl, Lord Howe, finished his remarks on his amendment. There is nothing that divides us on the urgency and sensitivity of the issue. I take the point made by the noble Lord, Lord Northbourne. In Committee, we discussed the critical nature of the early weeks for the bonding of child and mother and carer. We discussed the implications for the child's development of providing a secure, safe and certain home, as soon as possible. I assure noble Lords that that is the intention of the Bill.
We take the point about sending an explicit signal about speed. It is not appropriate for the Bill, but we will consider giving a special emphasis in regulations and guidance to that point. Indeed, our amendments deal with some of the issues, by flagging up the urgent need to return the child to the parent in cases in which there is consent. The training and support available to young mothers are issues for the next stage of implementation. I assure the House that we will not neglect those issues.
We want to make as speedy a provision for very small and vulnerable children as possible. I know that the noble Earl has taken on board some of the points that were made with regard to his earlier amendments. We are grateful for that. The new amendment brings forward other issues. The noble Earl's intention is to provide for the speedy placement of infants, if the parents consent, but also to make clear that the parents can withdraw their consent and have the child returned to them. I hope that I can convince the noble Earl that the Bill, with our amendments, will achieve the aim that the baby should be placed for adoption as soon as is practicable.
There is nothing in the Bill to stop a mother giving consent directly after birth, after which the baby will be placed as soon as possible. In such an instance, we fully expect that the young mother will have the best advice available to her, so that she can make the right decision. As I said, we will consult on that.
For all the reasons that we set out at length in Committee, the mother must be given six weeks to recover from the birth and make the proper decision. That is why she is not required to consent formally in that six-week period. She must formally re-affirm her consent after six weeks. That will be the valid basis for the making of an adoption order.
The need for speed and for extensive and sympathetic counselling is absolutely clear. The national adoption standards emphasise the importance of speedy decision-making. There is a period of three months to match a child under six months with suitable parents. The national standards also state that, if a baby is to be relinquished voluntarily,
"as much preliminary work as possible should be undertaken with the birth parents before the child is actually born".
I can promise noble Lords that, in developing the detailed adoption agency regulations and guidance, we intend to reinforce the emphasis of the national standards and we will be consulting with those in the field on the most appropriate and swift procedures.
The noble Earl's amendment also stresses the importance of ensuring that parents can change their minds and I wholly agree with that. Under the Bill's provisions, where placement is by consent parents are free to withdraw their consent at any point up to the time when they make the actual application to adopt. When they withdraw their request and ask for their child to be returned, the agency must do so within a set time period.
We have decided to make that clear on the face of the Bill. In cases where the child is under six weeks, our amendments spell out that he must be returned from the prospective adopter within seven days and as soon as that has happened he must be returned by the agency to the mother. That provision is contained in Amendments Nos. 36 to 38 to Clause 31. The only exception to the obligation to return the child is where the agency is a local authority and it has applied for a placement order. But in any event, it must make that application within the seven or 14-day period.
The noble Earl's second objective is that where the parents do not agree that the child shall be placed, it should be possible for the court to authorise a placement. I heard what he said about the Committee stage, but we believe that this is an unnecessary complication because it will introduce delays. There is no barrier to a local authority applying for a placement order in respect of a baby under six weeks where it is satisfied that adoption is in the best interests and where the child is at risk of significant harm. We believe that the process of authorisation, and going back to the court for a placement order, would present an unnecessary complication. Given the noble Earl's concern about delays, we cannot agree with the proposal.
In order to remove potential confusion that such a placement order might not be a valid basis for a final adoption order, the Government have introduced Amendment No. 60 to Clause 47, which makes it clear that, where a child is less than six weeks old, a placement order can be a valid basis on which to make a later adoption order. Speed will be equally important in these cases and we will be working with the Lord Chancellor's Department.
Finally, the noble Earl addressed the question of the fate of young orphans and the need to find a new family urgently. His amendment to subsection (3)(a) is intended to ensure that a court can make an order authorising the placement of young orphans without the significant harm threshold needing to be met. I can tell him that the contingency for that is provided for in Clause 21(2)(c) which ensures that the court may make a placement order in respect of a child of any age where the child has no parent. To make that even clearer, our Amendment No. 59 to Clause 47 provides that the conditions for making final adoption orders under Clause 47 do not apply where the child has no parent. In those cases, the court may make an order on application, provided that it is satisfied that it is in the child's best interest and consistent with the obligations placed on the court by Clause 1. Again, therefore, we are in total agreement.
I hope that I have reassured the noble Earl in each case in terms of the speed of obtaining consent and proceeding with the placement order, in moving towards final adoption, in strengthening the rights of the birth parent and in meeting the needs of orphan children. We have tried to meet him more than half way and we will continue to do so, given the concern that is shared around the House about these young babies.
My Lords, I am most grateful to the Minister for her reply. It is heartening to hear her reiterate her support for the spirit of my amendment. I am also grateful to her for having tabled the government amendments and for speaking to them so clearly.
I welcome those amendments, but my overall reaction to them is a little luke warm. They are good as far as they go, but we do not see an explicit encouragement to ensure a fast-track adoption system for babies in appropriate cases. However, I was comforted by the Minister's assurance that the matter may be emphasised in the regulations and guidance which will follow the enactment of the Bill and that the national adoption standards will be referred to specifically in such guidance.
The government amendments to Clause 47 allow for placement orders on children under six weeks to be a valid basis for later adoption orders. That is fine, but, as the Minister appreciates, my amendment is designed to encourage adoption agencies to undertake some forward planning when a baby adoption is seen to be in prospect. It should ensure that in those circumstances it places babies with the people who are likely eventually to become the adopters.
I am grateful to the Minister. She was unable to elaborate fully on counselling and training, which I realise is a complex issue. If she felt able to write to me on that subject, I should be grateful.
My Lords, I am grateful to the Minister. It is a worry to many people, as she will appreciate. We need to banish unhelpful and negative attitudes among social services staff and to ensure that they have the necessary skills to offer advice, support and encouragement to those who need it. With that, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 27, I shall speak also to Amendments Nos. 28 to 30 and to Amendment No. 159 standing in the name of the noble Earl. The amendments concern the provisions in Clause 26 concerning contact where an adoption agency is authorised to place a child for adoption. They address a concern that was raised in Grand Committee by the noble Earl, Lord Howe.
Perhaps I may briefly explain the thinking behind the approach we have taken. Placement is a "step change", a phrased used earlier today. The Government believe that it is entirely appropriate that existing contact arrangements be revisited. That is why the clause provides that existing formal contact arrangements—for example, orders under the Children Act—cease to have effect.
Our preferred approach is that the adoption agency, the prospective adopters and the parent should review existing arrangements and agree between themselves what contact arrangements are now appropriate. However, because informal agreement may not always be possible, this clause provides for the court to make an order for contact on the application from, for example, the child, the birth parents, the adoption agency and a range of others listed in Clause 26(3), such as the guardian of the child. Unless varied or discharged, these orders would last until an adoption order was made. The provisions are similar to those in Section 34 of the Children Act, which govern contact with children in care.
In Committee, the noble Earl suggested that we add siblings to the list in subsection (3) of those people who would not need the leave of the court to apply for a placement contact order. That is the effect of his Amendment No. 28. Amendment No. 159 is consequential and provides a definition of the term "sibling" for use in the Bill.
In Committee, in support of his case, the noble Earl emphasised the particular importance of contact between siblings whom it had not been possible to place for adoption together. We entirely share that concern. Indeed, we were swayed by the case made and undertook to consider the matter further. We have indeed done so and our Amendments Nos. 27 and 29 are the result. We have decided to accept all that the noble Earl suggested and more. We agree that the potential importance of contact between siblings in adoption justifies their inclusion in subsection (3). Furthermore, we think it wise to provide for wider family members such as grandparents, aunts and uncles, to be able to apply for contact orders without needing the leave of the court. The noble Earl set us on the right path and we were happy to follow it.
In addition, in Amendment No. 29 we have provided that people who held Children Act contact orders before the child was placed for adoption should also be included in the list in subsection (3) and be able to apply for a placement contact order without needing the leave of the court.
Amendment No. 30 is a minor correction. Subsection (3)(c) provides that, where someone held a residence order in respect of that child immediately before the child was placed for adoption with consent or under a placement order, the former residence-order holder does not need the leave of the court to apply for a placement contact order. The amendment ensures that the same position applies where the child is a baby placed for adoption under six weeks.
As the amendments make clear, we are committed to promoting links between siblings and adoption and our national standards make that clear. We would expect adoption agencies to make appropriate arrangements for siblings and other relatives. If there were any obstacles to that, we have now provided for those people to apply to the court for a contact order without needing to seek the leave of the court.
I hope that we have once again proved that we listen carefully and act. I beg to move.
My Lords, in speaking very briefly to Amendment No. 27, I thank the Minister warmly for reconsidering the issue of provision of contact, which we discussed in Grand Committee. The addition of "relative", proposed in the amendment, takes into account the concerns voiced in the previous debate that the Bill does not adequately provide for other close relatives, such as siblings or grandparents, applying for an order for contact. I am grateful to the Minister for acknowledging these concerns in moving the amendment. We shall not move Amendment No. 28.
moved Amendments Nos. 29 and 30:
Page 17, line 28, at end insert—
"( ) any person in whose favour there was provision for contact under the 1989 Act which ceased to have effect by virtue of subsection (1),"
Page 17, line 30, after "adoption" insert "or (as the case may be) placed the child for adoption at a time when he was less than six weeks old"
On Question, amendments agreed to.
Clause 30 [General prohibitions on removal]:
[Amendments Nos. 31 to 35 not moved.]
Clause 31 [Section 30: recovery by parent etc.]:
moved Amendments Nos. 36 to 38:
Page 20, line 39, leave out "This section" and insert "Subsection (2)"
Page 21, leave out line 1.
Page 21, line 5, at end insert—
"(3) Subsection (4) applies where—
(a) a child who has been placed for adoption is less than six weeks old, and
(b) any parent or guardian of the child informs the agency that he wishes the child to be returned to him, unless an application is, or has been, made for a placement order and the application has not been disposed of.
(4) The agency must give notice of the parent's or guardian's wish to the prospective adopters who must return the child to the agency within the period of seven days beginning with the day on which the notice is given.
(5) A prospective adopter who fails to comply with subsection (4) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.
(6) As soon as a child is returned to an adoption agency under subsection (4), the agency must return the child to the parent or guardian in question."
On Question, amendments agreed to.
[Amendment No. 39 not moved.]
[Amendment No. 40 not moved.]
Clause 34 [Placement orders: prohibition on removal]:
moved Amendment No. 41:
Page 22, line 14, leave out "agency" and insert "authority"
On Question, amendment agreed to.
[Amendment No. 42 not moved.]
My Lords, I beg to move that consideration on Report be now adjourned.