Children and Adoption Bill [HL]

– in the House of Lords at 8:21 pm on 14 November 2005.

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Consideration of amendments on Report resumed.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health 8:32, 14 November 2005

moved Amendment No. 25:

After Clause 5, insert the following new clause—


After section 11P of the Children Act 1989 (inserted by section 5 of this Act) insert—


(1) This section applies if a contact order with respect to a child has been made.

(2) If the court is satisfied that—

(a) an individual has failed to comply with the contact order; and

(b) a person falling within subsection (6) has been deprived of contact time by reason of the breach, it may make an order granting additional contact time between the person and the child concerned with a view to mitigating the effect of the breach.

(3) But the court may not make an order under subsection (2) if it is satisfied that the individual in breach had a reasonable excuse for failing to comply with the contact order.

(4) The burden of proof as to the matter mentioned in subsection (3) lies on the individual claiming to have had a reasonable excuse.

(5) An order under subsection (2) may be made only on an application by the person who claims to have been deprived of contact time.

(6) A person falls within this subsection if he is—

(a) the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;

(b) the person whose contact with the child concerned is provided for in the contact order;

(c) an individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or

(d) the child concerned.

(7) Where the person proposing to apply for an order under subsection (2) is the child concerned, the child must obtain the leave of the court before making such an application.

(8) The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.

(9) Subsection (2) has effect subject to the restrictions in section 11S.

(10) Proceedings in which any question of making an order under subsection (2) arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.

(11) In exercising its powers under this section, a court must treat as paramount the interests of the child concerned.


(1) A court may not make an order under section 11R(2) granting additional contact time between a person and the child concerned following the failure by an individual to comply with a contact order unless it is satisfied that before the failure occurred the individual had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of—

(a) in the case of a failure to comply with a contact order that was varied before the failure occurred, a notice under section 11I relating to the order varying the contact order or, where more than one such order has been made, the last order preceding the failure in question; and

(b) in any other case, a notice under section 11I relating to the contact order.

(2) A court may not make an order under section 11R(2) in pursuance of a failure by an individual to comply with a contact order where the failure occurred before the individual attained the age of 18.

(3) A court may not make an order under section 11R(2) in respect of a failure by an individual to comply with a contact order that is an excepted order (within the meaning given by section 11B(4)).""

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

My Lords, perhaps I may begin with an apology. For some reason, of which I am not fully aware, the text of the amendment was printed with errors that make it incoherent. The second part of the amendment refers to Section 11R when it should refer to Section 11Q. Similarly references to Section 11S should properly read Section 11R. I am sorry about the confusion.

The purpose of the amendment is, I hope, clear. It proposes that where a contact order has been breached and a non-resident parent has thereby been deprived of contact time, it should be open to the court to consider whether the non-resident parent should have that lost contact time made up to him. The Minister may say to me that the courts can do that anyway. The problem is that they do not. I believe that only a specific provision in the Bill will act as a signpost to the courts to put right a wrong that has been done. It is not only an issue of natural justice, it would also be a deterrent; and, above all, it is potentially in the interests of the child. Each case, however, would be judged on its own merits.

I hope the Minister will take on board the thrust of the amendment at the very least and that she will have some words of encouragement for me. I beg to move.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I think that it would be very difficult to put the provision into operation, except to say that the child's needs must be paramount again. It is the old argument. I do not see how you compensate in difficult situations between two adults without causing problems for the child.

The other point that I should like to make—I had wanted to get it in for the whole of the Bill, and I only wish that I had tabled an amendment—is that if we are to have this kind of measure, we really should find a way of ensuring that men and women, but mainly fathers, I fear, who fail to keep their side of the contact bargain when they are the non-resident partner are encouraged to do so by similar amendments. I am sorry that I have not done that. However, I would like to place on record my view that, in considering these matters, we should ensure that non-resident parents who make and break promises are as much at fault as any resident parent trying to care for children who also breaches those promises.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I think that we would all agree with the sentiments expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Howarth. It is important that promises made to children are kept. Distress can be caused by a parent not showing up for a contact arrangement, to which a child may have looked forward, and, equally, by one parent refusing to allow a child to see the other parent. I accept the sentiment behind these amendments.

As the noble Earl quite rightly predicted, I do say that the courts are able to do this already. They can use their discretion; they can decide what form a new order should take; and, if it is thought that it should embody some form of compensatory contact for the child's sake, that indeed is what they will order. We know that in his evidence to the Constitutional Affairs Select Committee, in answer to a question from Dr Whitehead regarding whether consideration had been given to the idea of financial compensatory contact, Lord Justice Wall said:

"As a matter of practice, it happens. That is a regular order that would be made. If a contract is frustrated on a particular occasion, the court will almost invariably seek to make it up in some way or another".

Therefore, although I understand the noble Earl's sentiment, the evidence from Lord Justice Wall is that that would be the case.

Underlying that, what really matters is the speed with which it is done. One of the issues raised by fathers' groups is that they are denied contact because Mum is not at home with the child when they visit or because something else has happened, and it takes quite a long time for them to return to court to deal with the issue. That is why we are extending the monitoring role of CAFCASS. Under Clause 2 of the Bill, the court can ask the CAFCASS officer to arrange for the monitoring of contact in any case. The purpose of that is to be able to say, "Did contact happen?" and, if it did not, to enable the CAFCASS officer to apply to the court to have the parent brought back before it very quickly. In that event, one would not end up with the situation, about which some fathers have spoken to me, that a new status quo evolves in which the parent does not see the child very much and feels that the courts are reluctant to undermine that when that is what the child has been used to. The court has the power to bring back before it quickly any offending parent. There is some evidence from the judges that that happens, and they certainly feel very strongly about it. I therefore hope that we can resolve this important issue and that parents will be able to feel that if they do not get contact they will be given compensatory time and that it will be dealt with swiftly. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

My Lords, I am grateful to both noble Baronesses. I suspected that the noble Baroness, Lady Howarth, might criticise the amendment for being too parent-centred, which is why I included in it a specific reference to the paramountcy principle. However, I do not see what is wrong with saying that the court has this option at its disposal while all the time being required to have regard to the paramountcy principle.

Of course, the statement by Lord Justice Wall is very welcome, but those who have made representations to me have said that although some judges may have this point at the forefront of their minds, others do not. That is perhaps not something that we can settle today, beyond my telling the Minister that I welcome her recognition of this issue and that the courts, in appropriate circumstances, should be encouraged to look at it as an option in the menu. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25A not moved.]

Photo of Lord Northbourne Lord Northbourne Crossbench

moved Amendment No. 26:

After Clause 6, insert the following new clause—


In order to enable the courts and CAFCASS to fulfil their responsibilities under Part 1 of this Act and, in particular, to reach informed judgments on—

(a) the circumstances of the child, and

(b) the order most likely to be in the child's best interests, the Secretary of State shall provide the courts and CAFCASS with adequate funding and other resources."

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, the Government's case for arguing that we do not need to amend this Bill rests on Clause 1 of the Children Act 1989 relating to the paramountcy of the welfare of the child. If the courts require that the child's welfare should be the court's paramount consideration, should not the Government also be required to be concerned to ensure that the child's welfare is their paramount consideration? Such inquiries as I have been able to make have convinced me that at present that is not the case.

The report Domestic Violence, Safety and Family Proceedings quotes criticisms of CAFCASS which clearly relate to inadequately trained staff and pressure of work on staff. CAFCASS is, I believe, struggling manfully to build a team of able, well-qualified officers and to reform the way that it works. To do this job properly over time will involve more resources, not just a few million pounds found from some other budget, but a reliable and consistent funding stream adequate to do the job and to do it to a standard that will, where necessary, ensure the paramount importance of the welfare of each child, not forgetting that there are, alas, an ever increasing number of such children.

At least five Members of the House—the noble Baronesses, Lady Pitkeathley, Lady Howarth, Lady Morris and Lady Walmsley, and the noble Earl, Lord Listowel—referred in this debate to the problems of funding and staffing of CAFCASS in developing its new role. Children have only one chance to grow up. We should not short-change this chance by prejudicing the ability of CAFCASS to fund its activities. In addition, the evidence seems also to indicate that the courts are underfunded and understaffed, causing substantial delays—one of the most serious problems to the effective functioning of the present system. To resolve this problem will need more specialist judicial capacity and a management organisation and ethos that recognises the importance of early intervention and avoidance of delay in proceedings. That, too, will cost money. It will also need a committed and prioritised source of dedicated Treasury funding.

This is a probing amendment to give the Government an opportunity to tell the House what their funding plans are. It will also give noble Lords more expert than I a chance to tell the House whether and to what extent CAFCASS and the family courts are adequately funded or underfunded today. If the Government argue that this is a money matter which should be reserved to another place, I will explain that I do not intend to place a money issue in the Bill. However, this House has the right to be satisfied that the resources will be available for the additional loads that this Bill will place on the courts and CAFCASS. I beg to move.

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills 8:45, 14 November 2005

My Lords, I added my name to this amendment not because I do not accept that it may be on the edge of the competency of this House in relation to financial matters, but in order to give general support to the spirit of the amendment that the Government should put their money where their intentions are. I welcomed the statement made by the Minister earlier this evening in relation to Amendment No. 22, when he made it quite clear that the Government will ensure that the resources are available to do the risk assessments that we have now included in the Bill. It is a great shame that we are now in a situation whereby, on average, there is about 16 weeks' waiting time up to the first appointment in most areas. I heard from a district judge only a few days ago that in some areas it is 20 weeks. That is four or five months out of a child's life before even the first appointment for the report to be written, which really is an unacceptable delay.

I also had great difficulty believing my ears when I heard the Minister suggest in Committee that CAFCASS does not require any further resources to be available to implement the various measures in the Bill because of savings that will be made in other areas of its work. I would be very surprised if the workload in any of its areas of responsibility were reduced, or if the need were reduced, in order to take account of the various measures that we are putting in place in this Bill.

In addition, the voice of the child is missing from the Bill. I am aware from talking to practitioners that it takes quite a long time to listen to children; you usually have to do it in the home, take time over it and be extremely sensitive about it. It is something that takes practitioners quite a long time. If we are to do more of that, as we all agree we should, there will be an even greater workload on the CAFCASS officials.

Therefore it is in agreeing with the spirit of the amendment moved by the noble Lord, Lord Northbourne, rather than making any particular manifesto commitments from these Benches, that I support him. I hope that the Minister will be able to extend the undertaking that he gave us in relation to Amendment No. 27 and reassure us that the resources will be available for pay, for the amount of hours needed to do the job well and for training and recruiting the very best social workers to CAFCASS.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I ask the leave of the House in speaking to this amendment, as I clearly have a vested interest in it. I thank the noble Lord for moving it—and your Lordships will not be surprised to know that I do not oppose it. I very much welcome the fact that it mentions both the courts and CAFCASS, because it is important for proper resources to be made available for all contact activities in the court, whether they are mediation services, contact centres, parenting education or other input such as perpetrator programmes and so on.

I am too experienced a campaigner and chair of non-departmental bodies to ask for unlimited or even adequate funds, or even for very limited funds, without making a proper case. I am only too ready to admit the faults and shortcomings of CAFCASS in its early years. But I emphasise now that the CAFCASS board is committed to reforming and improving CAFCASS, and we do not want that aim to be jeopardised by a lack of small amounts, in the scheme of things, of extra money.

We have not hesitated, even with major budget difficulties, to drive through a range of practice and productivity improvements that have included a drastic reduction in national office staffing levels, devolving more budgets to frontline services, controlling public law backlogs, despite increasing demand of up to 20 per cent in some regions. But that has been at the cost of being able to give the pay rises that our hard-worked staff deserved and at the cost, too, of seriously putting a brake on much-needed training programmes and upgrading of vital IT systems. So we are already at the limit and could not possibly deliver on the extra responsibilities placed on us without extra resources, unless the expectations of other organisations in the system change as we have always maintained that they must for us to deliver within existing resources. Our staff are ready and willing to change their private law practice—for example, on early intervention models instead of long reports; but we can do that only if the culture surrounding some courts changes. If resources are released in that way, we can redirect them. That requires a major culture change, however, and a change in the trend of cases to become ever more complex. That is a worry to us.

We also face great competition for our workforce. As we heard today, local authorities are increasing their rates of pay, and we cannot compete with those. We are attempting to strengthen our infrastructure, which has always been needed, but it is a constant struggle, and the demands that we make of our staff endanger morale.

The proposals in the Bill offer huge opportunities for a new way of working with children and families, but we cannot do that justice without proper resources. Moreover, I remind your Lordships that investment in families at a time of such great difficulties saves vast amounts of money later on, by lessening the impact of family breakdown on the children's ability to achieve in later life. We must always bear that in mind whenever there is any discussion of resources.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Spokespersons In the Lords, Education, Family & Children, Health, Deputy Chief Whip, Whips, Vice-Chairman (Candidates), Conservative Party

My Lords, my honourable friend Tim Lawton put down a Written Question in another place on Friday 14 October—I am very impressed that it was answered by Monday 17 October—asking the Secretary of State for Education and Skills what funding had been given to CAFCASS in each of the past five years and how much was planned for 2005–06 and 2006–07. Although this rose considerably from 2001–02, from £80.8 million to £107 million in 2004–05, in 2005–06 it is £101 million because £6 million was transferred to Wales. It looks as if it is frozen for 2006–07 at £101 million. At a time when CAFCASS is going to be required to do more, it seems that its budget is frozen. Will the Minister comment on that?

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I do not want to repeat what the noble Baroness, Lady Pitkeathley, has said. I also have to ask for the leave of the House as deputy chair—I clearly have a vested interest.

I begin by thanking the Government for the money that they have already put into the system. When the noble Baroness and I were invited to see whether CAFCASS was viable, which it certainly is—I think that is what we were really asked to do, rather than get it going—we had to see whether the budget met the needs, because no one actually knew. Now we know that it is not really adequate to meet the baseline service. Most of the services that you are involved in will put somewhere near 3 per cent of their budget into training, although it depends how you add that up. At the moment, we have hardly any training budget. We train by our staff putting in, and by conferences that other people are putting in, and by helping each other to improve the service.

We need to improve all that. To do that, as the noble Baroness, Lady Pitkeathley, said, we have halved the staff at headquarters, significantly reduced the senior staff and devolved our services. That is a modernisation programme in a year that many organisations would give their eye teeth to have achieved. It is a substantial achievement.

We do not need the megabucks that we have already been given to make the difference. We need enough to make the service work, to have decent training and to have basic IT for our case-recording service, which will save time and money if we can only get it up. I know there are particular funds for IT. If only we could get some of that money. We need enough to ensure that, as has been said several times here, we can pay a decent staff a decent wage to do a decent job.

Every day matters. Every day, we have to ensure that children are not waiting to have their reports; that they are not waiting to be seen or to be heard. That is our commitment, but we need help and support in order to achieve it, as well as for the surrounding services and CAFCASS to be involved in the development of contact centres and the kind of work that it is doing extraneous to the day-to-day work in court. We have been helped considerably by the Government. We are grateful for that. To complete the job we need that help to continue.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, perhaps I can quote from the report that we have been discussing. Under "Overall assessment" the report says:

"a system to improve the standard of practice overall has not been implemented and accountability for service delivery is deficient throughout CAFCASS. There is a disconcerting culture of rush and hurry in CAFCASS but practitioners do not make best use of the time available . . . The nature of domestic abuse is not sufficiently understood by most CAFCASS practitioners; the routine approaches used by CAFCASS do not assess risk and some are dangerous. There is a worrying lack of attention to safety planning throughout CAFCASS".

The problem is not just one of funding. There is much work to do. I know that my noble friend and the noble Baroness, Lady Pitkeathley, are working extremely hard to take the system forward. I understand that the toolkit that they have introduced on assessments for domestic violence is a welcome innovation and meets some of the concerns in the report. However, we need to give the organisation all the support that we can—financially and in other ways.

I refer to the point made by the noble Baroness, Lady Walmsley, about representation of the voice of the child in such proceedings. A concern was raised in the recent Joint Chief Inspectors' report, Safeguarding Children, involving children in court proceedings. That has to be done in an extremely sensitive manner, as was pointed out in the longitudinal report with which the noble Lord, Lord Adonis, provided me. Younger children can find themselves being caught between a rock and a hard place, if they feel that they are put in the position of having to choose between one parent and the other, but older children want to be part of the process and want to give their views on it. Professional work needs to be carried out. I thank my noble friend for tabling the amendment.

Photo of Lord Adonis Lord Adonis Parliamentary Under-Secretary (Schools), Department for Education and Skills, Parliamentary Under-Secretary (Department for Education and Skills) (Schools)

My Lords, I pay tribute to my noble friend Lady Pitkeathley, to the noble Baroness, Lady Howarth, and to their senior management team at CAFCASS for the remarkable work that they have done in the past year in turning round the organisation. The figures given by my noble friend on the efficiencies that have been procured and the redeployment of resources to the front line speak for themselves in the effect that they are making on the organisation. We greatly appreciate the work that they have been doing. We recognise the pressure under which their staff work, and we are committed to seeing that they are properly resourced.

All the way through the passage of the Bill, concerns have been expressed that the resourcing should be adequate to the tasks that Parliament wants to impose on various departments and agencies concerned with taking forward the agenda. I shall repeat what I have said at every stage of the debates: we are mindful of those new responsibilities, and we regard it as a duty on us to see that the resourcing is adequate. However, I cannot enter into spending commitments for future years because I am simply not in a position to do so, although I can say to the noble Baroness, Lady Morris, that funding decisions for CAFCASS for next year, 2006–07, have not yet been made. My department is monitoring the current financial position of CAFCASS, and there are ongoing discussions about budget pressures with the chair, the chief executive and my department. I thought that she was very fair-minded in her comments, and she pointed out, in a remarkable display of efficiency by the DfES, that she received a written reply through her honourable friend in three days—that must be almost without precedent in the history of the DfES.

The figures for investment in CAFCASS over the past four years have risen significantly, as the noble Baroness said. They rose from £80.8 million in 2001 to £95 million in 2003–04 up to £107 million in 2004–05, which included £12 million extra to improve training and to remove the backlog of cases. We have sustained that funding for this year, which needs to be seen against the backdrop of the significant increase in funding over the previous three years.

I know that my noble friend will immediately say that further resources are needed, so I shall not push the point too far, but I believe that our good faith has been demonstrated, as it has in the funding of mediation services, to which my noble friend Lady Ashton referred, where again there was a significant increase in funding. On the funding for supervised contact centres, which is a cause dear to the heart of the noble Earl, Lord Listowel, we have had significant increases—£3.5 million for contact centres next year, rising to £4.5 million in 2007–08. However, I appreciate the additional pressures and burdens that will be imposed on the various services and the increased demands that there will be in future years. All I can say, as I say on every occasion that we debate the matter, is that we are mindful of the pressures when we allocate funding in future years. We would not be before the House today proposing this legislation if we did not regard it as important that those additional services were provided. I hope that we can meet the concerns that have been expressed in the House to the satisfaction of noble Lords when we announce funding settlements for future years.

Photo of Lord Northbourne Lord Northbourne Crossbench 9:00, 14 November 2005

My Lords, I am extremely grateful to all noble Lords who have taken part in the debate and to the Minister for that helpful and broadly encouraging reply. I know that the process of government is different from business, but would any managing director come before his board and say, "Gentlemen, we are proposing all these wonderful changes, but we do not know how we are going to pay for them"? That is not for real. I wish that the Government had a system—I do not suppose that governments ever have had or ever will have such a system—whereby they could approach the Treasury before coming forward with ideas of this kind, so that when they come to Parliament they know that they will be able to implement them. At the moment, whatever we pass or do not pass today or at Third Reading, we will not know whether it will be possible to implement it because we do not know whether the right honourable gentleman the Chancellor of the Exchequer will cough up the funds when the time comes. It is a highly unsatisfactory situation. However, we are doing our best.

I am most grateful to the Ministers, the noble Baroness, Lady Ashton of Upholland, and the noble Lord, Lord Adonis. I know that they are deeply committed to this objective. I wish them good luck in their negotiations with the Treasury. We should support them in every way that we can. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Thornton Baroness Thornton Labour

moved Amendment No. 27:

After Clause 6, insert the following new clause—


After section 16 of the Children Act 1989 (c. 41) insert—


(1) This section applies to the following functions of officers of the Service or Welsh family proceedings officers—

(a) any function in connection with family proceedings in which the court has power to make an order under this Part with respect to a child or in which a question with respect to such an order arises;

(b) any function in connection with an order made by the court in such proceedings.

(2) If, in carrying out any function to which this section applies, an officer of the Service or a Welsh family proceedings officer is given cause to suspect that the child concerned is at risk of harm, he must—

(a) make a risk assessment in relation to the child, and

(b) provide the risk assessment to the court.

(3) A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.""

On Question, amendment agreed to.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Spokespersons In the Lords, Education, Family & Children, Health, Deputy Chief Whip, Whips, Vice-Chairman (Candidates), Conservative Party

moved Amendment No. 28:

After Clause 7, insert the following new clause—


The Secretary of State shall lay before Parliament proposals to strengthen the efficacy of the Convention on the Civil Aspects of International Child Abduction agreed at the Hague on 25th October 1980."

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Spokespersons In the Lords, Education, Family & Children, Health, Deputy Chief Whip, Whips, Vice-Chairman (Candidates), Conservative Party

My Lords, as your Lordships know, the Hague Convention is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. I have retabled the amendment to discuss in more detail some of the responses that the noble Lord, Lord Adonis, provided in Grand Committee and in his letter of 24 October, for which I thank him.

In Committee, I raised concerns that had been expressed about the effective implementation of our duties under the Hague Convention and the use of the International Child Abduction and Contact Unit (ICACU)—concerns about whether we really are addressing the scale of the problem. The noble Lord, Lord Adonis, argued in Grand Committee that the convention,

"is generally recognised as working well and we play a full part in it".—[Official Report, 17/10/05; col. GC 165.]

I would suggest that only with the true statistics will we be able to clarify if that is indeed the case. I understand the need to protect vulnerable children who may be involved in cases, but surely there must be a way to publish the figures separately from case details. As it stands, we have no idea exactly how many children are abducted by a parent every year.

Have the noble Lord, Lord Adonis, or the noble Baroness, Lady Ashton, seen a copy of PACT's report Every Five Minutes—indeed, they have, it is available—which is a review of the available data on missing children in the UK? It highlights the fact that every five minutes a child is reported missing in the UK. Alongside the human and social cost, missing children must be one of the urgent social issues of our time. Will the Minister's department respond to the report and, if so, when will that response be published?

The noble Lord, Lord Adonis, said in Grand Committee that the International Child Abduction and Contact Unit in the office of the Official Solicitor, as well as processing applications for return and contact, provides information to parents. I wonder whether the Minister can clarify that information. Does it include legal advice, or just a list of practitioners to whom parents can go for advice? What happens if parents cannot afford legal practitioners?

In Committee, the noble Lord, Lord Adonis, discussed the Child Abduction Co-ordination Group. Will the Minister explain the most recent suggestions on new ways to prevent abduction and say whether the Government will be implementing them?

We were glad to hear that the convention was kept under review by the Hague Permanent Bureau through a series of regular special commissions. As the Minister highlighted, the second commission in 2002 concluded that improved contact arrangements could reduce the risk of abduction. Indeed, in the current Hague Project on Preventive Measures, the background document states:

"Orders or agreements may be sought during, for example, divorce or custody hearings, which prohibit the unilateral removal of a child from a jurisdiction. Such pre-emptive prohibitions at a stage when the parents have possibly never even contemplated abduction may alert them to the potential illegality of any removal. Thus abductions may be averted as a parent is made aware of the need to contact the other parent in order to discuss potential removals".

I wonder whether the Government have responded to the Hague questionnaire on preventive issues. Did they respond last year to the one on enforcement?

As a solicitor has highlighted to us, the arrangements for contact in the family law system often make parents unreasonable, thus contributing to the possibility that one will resort to abducting their child. That is why we strongly propose the inclusion of co-parenting and reasonable contact, both of which proposals have been defeated. We need to focus on prevention rather than cure, although we recognise what the Government are trying to do with contact activities and enforcement.

Abduction is the most dramatic strand of parent alienation, which has critical effects on the child's welfare and mental well-being. I do not know whether this is the right amendment. I do not know whether there is a right amendment to be made to the Bill. We just felt that the matter was of sufficient importance to debate. I beg to move.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, I offer our support to the noble Baroness, Lady Morris. I do so principally because I watched a couple of television programmes on the subject that were some of the most harrowing that I have ever seen. I understand that, although PACT may not be the Government's favourite organisation at this moment, it is important that people who may wind up in this situation are alerted as early as possible to that possibility.

In Grand Committee, I asked whether the Minister could supply information about which countries and which jurisdictions were the main ones to which children had been abducted and not returned. I am pleased to say that the Minster supplied it. I am interested, as I have been throughout the Bill's passage, in the extent to which practitioners and parents can be given information and resources to enable them to deal with the situation that emerges. As well as monitoring aspects of the convention, which the Government must do, do they provide resources, particularly to the voluntary organisations that are in touch with parents, to allow them to pass on information and experience to each other? I know a number of women—it is usually women in this situation—who, although they have not succeeded in getting their children back, have had limited contact with them in the country to which they have been abducted. That is not wonderful, but it is something, and it is better than nothing. If the experiences of individuals who have battled their way through different legal systems could be made available to people who one day find themselves in a horrifying situation that they never envisaged when they started out on life, that would be of enormous benefit. Just as we have been arguing on the domestic scene, on the international scene it is also about trying to enable good practice to be handed on between parents.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am grateful to the noble Baroness for raising this incredibly important issue. I am the Minister responsible for the Hague Convention, so I am delighted to be able to discuss it.

I have got the PACT report. I have no views about PACT as an organisation; it seems to be doing an extremely good job. I have already committed my officials to talking to PACT, because a lot of the issues that have been raised by both noble Baronesses should be dealt with by good conversations about what happens. We fund an organisation called Reunite, which offers help and support 24 hours a day, seven days a week to parents who may find themselves in this situation. I take on board the comments of the noble Baroness, Lady Barker, about what more we could do to give parents greater support by knowing about other situations that have been relevant in particular countries.

We keep a lot more statistics than we publish, and the reason why we do not publish them is that we have grave concerns about identifying the children involved. So we know a lot more; I know about all the individual cases that come to my attention. We are keen to ensure that this is kept under review. I do a lot of work with my counterparts in Europe where we may have a particular issue with an individual country where you can see from the statistics that perhaps more needs to be done. We have bilaterals going on between officials and between me and my fellow Ministers to raise issues and try to deal with them speedily as possible. Noble Lords know that my department acts as a "central authority" to process applications and to provide information to parents. I cannot get an answer in time on the specific question about legal advice, so I shall write to the noble Baroness.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, for clarification, will the noble Baroness say whether, when she talks about dealing with her opposite numbers in Europe where there is a particular problem with a country, she means countries in the European Union or countries outside the European Union with which all member states have problems?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I mean countries in the European Union and countries involved with the Hague Convention. We are also keen to ensure that as many countries as possible participate in, join and sign the Hague Convention. I cannot talk about specific things that I am doing at present, but we are keen to ensure that we use our efforts, particularly during the EU presidency, to persuade more countries to be involved in it, for obvious reasons. That is something that I feel strongly about and something that we have done a lot of work on to ensure that it happens well.

I appreciate that the situation is by no means perfect. We are trying to support the voluntary sector, and we are trying to support parents as far as we can. I take on board the comments that have been made. Officials will meet with PACT to discuss what else can be done. I have more statistics, but I cannot and will not release them for the obvious reasons that I have given. I am keen to ensure that we play our full part in the convention and that we support families who are dealing with impossible and harrowing circumstances, as the noble Baroness, Lady Barker, said. I do not think that it is the right place make the amendment, but I am delighted to have had the chance to talk about some of the work that I am doing. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Spokespersons In the Lords, Education, Family & Children, Health, Deputy Chief Whip, Whips, Vice-Chairman (Candidates), Conservative Party

My Lords, I thank the Minister for her sensitive reply. I am glad that her officials will contact PACT. I like the idea expressed by the noble Baroness, Lady Barker, of government funding for voluntary organisations working in the distressing field of abduction, and I hope that the Government will consider that. I also look forward to receiving the letter from the Minister. In Grand Committee, I said that the words "you will never see your child again" must strike fear in the heart of every parent, and we hope that everything is done to help parents in that most distressing situation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills 9:15, 14 November 2005

moved Amendment No. 30:

After Clause 7, insert the following new clause—


(1) The Secretary of State must issue guidance to the court.

(2) The guidance must outline the circumstances under which the court should exercise its powers under section 37 of the Children Act 1989 (c. 41) (powers of court in certain family proceedings) in order to achieve the best interests of the child.

(3) Before publishing guidance under subsection (1), the Secretary of State shall consult and seek approval from—

(a) experts in the development and safety of children;

(b) the family courts of England and Wales;

(c) any other person who appears to him to have an interest or expertise in the issue.

(4) The Secretary of State may not issue the first edition of this guidance unless a draft has been laid before, and approved by resolution of, each House of Parliament.

(5) The Secretary of State may, from time to time, revise the guidance, subject to the provisions of subsection (3)."

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills

My Lords, this is the other leg of my child safety priority agenda this evening and I hope that it will find favour with the House.

There are two important contexts in which harm typically needs to be addressed in private law cases. The first is the clear evidence that children being exposed to ongoing conflict between parents causes them emotional harm. That point has already been alluded to. It can arise as a result of the contested proceedings themselves and is recognised in Section 31 of the Children Act 2002, as amended. The second is where allegations of harm are made by one party against the other, which obviously need to be investigated as a matter of urgency to ascertain the risk to the child, either from the allegation of harm being substantiated, or emotional harm being caused by a false allegation of harm being made by one warring parent against another, possibly to boost their case in respect of another issue.

It is imperative that harm is explored precipitately once evidence of it emerges in whichever of these contexts and that where there is prima facie evidence of harm the court uses its powers to direct the local authority to investigate under Section 37 of the Children Act 1989. Thereafter the public law provisions of that Act would be invoked to ensure the child's safety and protection unless inquiries by the local authority under Section 37 reveal absolutely no evidence of harm.

It is very important that the private law provisions of the Children Act focus on private law issues and do not attempt to be a second-tier system for protecting children, which would replicate or worse still dilute the existing protection system and inevitably confuse practitioners, leaving children at greater risk of harm. The best way to avoid this would be to issue guidance to courts on when and how the Section 37 powers should be exercised, which is why I have tabled this amendment. Section 37 is the vehicle that gets private law cases into public law so that they can then be dealt with.

I have set down a process to devise the way in which guidance for the courts on the consistent exercise of Section 37 powers should be done in cases where there have been allegations of harm or in particularly high conflict cases. My intention is to bring more consistency and rigour into the whole process. I have reason to believe that such guidance would be welcomed by the courts.

I draw the attention of the House to the wording of my amendment. Subsection (2) refers to the guidance being used,

"in order to achieve the best interests of the child".

Subsection (3)(a) provides that the Secretary of State shall, before publishing the guidance, consult and seek approval from,

"experts in the development and safety of children".

It is of course important to consult child development experts but in this particular case people who know about the issues relating to the safety of children should also be consulted when devising such guidance.

My amendment also provides that the draft of the guidance should be laid before and approved by resolution of each House of Parliament. That would make it quite a strong vehicle for bringing consistency and rigour into the system. Standing alongside the successful amendment tabled by the noble Baronesses, Lady Gould of Potternewton and Lady Thornton, an amendment such as this would certainly help to satisfy all of us that the issues about potential harm to children are being addressed seriously. I beg to move.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, this is an interesting amendment. In the chief inspector's foreword to the HMICA report, he states:

"We also need to recognise how emotionally wearing it is for the wide range of professionals who have to deal with domestic violence on a near daily basis. As this inspection shows, there is a risk that individuals within agencies sometimes find it easier to down-play or even ignore the presenting signs of domestic violence".

My assessment from the report is that there may be a serious concern about what is going on in a family, but the CAFCASS officers do not know what to do with it, so they shove it under the carpet, metaphorically speaking, or turn away from it. That is partly because they are worn down by the difficult cases with which they are faced, and partly because they do not know where to take such concerns. What I welcome about the amendment is that it says, "If you have serious concerns about the family, we will improve the connection with the professional interventions in public law to make sure that they are dealt with". I look forward to the Minister's response, and thank the noble Baroness, Lady Walmsley, for tabling the amendment.

Photo of Baroness Thornton Baroness Thornton Labour

My Lords, I also think that the amendment is interesting, because the debates on the subject in this House over the past few years have centred around how we make sure that children involved in private law proceedings are granted at least the same protection as those involved in public law proceedings. That is a legitimate question to ask the Government, and one to which we should have an answer. The amendment may not be the way to do it, but the Government should address it.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, at this late hour, I almost did not get up to speak. I simply want to say that it is an absolutely legitimate concern to ensure that we look at the cases on their needs, rather than on which way they come through the system. Although I am not sure that the amendment is the vehicle by which we achieve that, because guidance in the area is always difficult to get exactly right, CAFCASS is looking at the matter in practice. You will see that in everyday matters. We are attending to it. The situation cannot be allowed to continue in which you spend six times as much time on a public law case as on a private law case, when the circumstances of those cases are difficult to distinguish. The service—and, I am sure, the Government—are determined to put that right. I am not sure that guidance will help us, but it is worth being prodded to get the practice right.

Photo of Lord Adonis Lord Adonis Parliamentary Under-Secretary (Schools), Department for Education and Skills, Parliamentary Under-Secretary (Department for Education and Skills) (Schools)

My Lords, we are grateful to the noble Baroness, Lady Walmsley, for raising the issue. We have demonstrated, both in the amendments that I have moved this evening and in those that we have accepted from my noble friends, that we take the safety of children and all legislative and other means for ensuring that they are protected very seriously. That applies to the concerns raised by the noble Baroness too. I am not entirely closed-minded about the issues that she raises. As we have shown, we are prepared to consider all issues relating to child safety again and again where we think that changes would lead to a better regime for the protection of children.

I invite the noble Baroness perhaps to tell me in more detail her concerns after the debate. She made a rather enigmatic remark about the courts not being unwelcoming—I think that was her phrase; it was something of that kind—to such guidance, or her having reason to believe that they might welcome it. I would very much welcome any information that she could give me on that, as our advice is that the courts are content with the status quo and have not exhibited any concerns about the absence of guidance for using their powers. Their powers as set out under Section 37 of the 1989 Act are very robust in the instructions that they can give to local authorities for the investigation of cases where there could be a public law dimension, and in which care orders or other interventions may be required.

Our current position—subject to further discussion, which I am prepared to undertake—is that we do not see a case for the further guidance because it would meet no need. Therefore, it would not lead to an improved regime. Indeed, we are somewhat concerned that issuing guidance by the Secretary of State, as the amendment suggests, could even have the effect of limiting the discretion of the judiciary, despite all the eminent people that the noble Baroness suggests we should consult. We would then have to lay down the specific cases, or give indications of what those cases would be, where they should act, which could only have the effect of circumscribing the discretion of the courts, unless the guidance was so general that it did not serve to amplify in any way on Section 37 of the 1989 Act.

We see this in the context of the amendments we have passed today. These amendments strengthen investigating procedures in respect of children who may be at risk. Amendment No. 27 moved by my noble friend Lady Gould sets out the statutory approach that we have now agreed to risk assessment. CAFCASS has made it clear that if its risk assessments alert it to concerns for children, it will take the opportunity to refer them directly to the local authority to make the necessary investigations under Section 37 of the 1989 Act.

Taking all this together, we are not at the moment persuaded that there is a case for further change, but we are mindful of the need to do everything we reasonably can to meet concerns about child safety. If the noble Baroness wishes to amplify on her earlier remarks to me, I would be happy to look at the matter further.

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills

My Lords, I thank the Minister for his response and other noble Lords for their support for the idea of this amendment. I am sure that it would not be beyond the capability of the Government and their lawyers to draft guidance which, while setting down the range of circumstances under which these powers should be used, could at the same time make it clear that the discretion of the court was not fettered or limited to those situations. One would not want to fetter the court. Perhaps a practice note to go with such guidance might be helpful. My enigmatic remark related to conversations I have had in confidence with members of the judiciary, so I cannot go any further than that.

I am particularly taken by the comments of the noble Baroness, Lady Howarth of Breckland, about the amount of time spent on children in public law and private law. I am looking for rigour and consistency and I do not argue for one moment that the Section 37 powers are not robust. What we want is for them to be used and used consistently. It is like the risk assessment issue—some people did it but others did not. In some circumstances where they did not, there may have been a problem. This is why the noble Baroness wanted to introduce her successful amendment. My approach is the same. In some cases these powers are used perfectly appropriately; in others, one has the feeling that there are situations where there should be intervention and there is none. That is why I think guidance might be helpful.

It is not the answer to everything—guidance is only guidance. But it can have considerable power when it relates to issues like this, where a child could be killed if the courts did not use the powers appropriately. The pressure on them to comply with the guidance would be considerable. I am sure all the expert practitioners in the country would want to contribute to the consultations that take place before the publication of these guidelines. I am sure the Government would not be short of experts to advise them on such guidance.

I have listened to what the Minister said. Perhaps we can have a conversation about this issue before the next stage of the Bill. I tabled the amendment in the spirit of the constructive development of the safety issues of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Power to charge]:

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

My Lords, I make no apology for returning to an issue that we debated briefly in Grand Committee; namely, the provisions in Clause 12. It was clear from our earlier debates that there is an issue of principle here about which we and the Government are in fundamental disagreement. The Government propose to levy charges for the work done by departmental officials in connection with intercountry adoptions. They justify that by saying that this work is a personal service and that the money could be better spent elsewhere. I am the first to agree that no public expenditure is trivial. But we are looking here at saving a sum of money which in the departmental context is small but which to individual adopters could well be substantial. That situation, frankly, does not commend itself to me.

More importantly, however, I take issue with the argument that this is a personal service. It is surely no such thing. It is in essence nothing more nor less than child protection work. Where else in this country do public authorities charge for child protection? In the case of intercountry adoptions we have entered into international obligations to ensure that those children who are adopted from abroad are not exploited or otherwise improperly treated. So I ask the question that I posed in Grand Committee. Since when has it been thought right to transfer the cost of meeting those obligations from the public purse to private citizens?

I should be very grateful if the Minister was able to answer those points, because bodies such as BAAF which concern themselves with intercountry as well as domestic adoptions regard Clause 12 as a clear and unwelcome signal from government that intercountry adoption, for all the fine words heard during the passage of the 1999 Act, is seen as a low status activity in comparison with domestic adoption. I have to say that that is the only logical conclusion that can be drawn from this clause. I beg to move.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, I am very grateful to the noble Earl, Lord Howe, for returning to this subject, not least because it enables me again to ask the Minister a question that I asked in Grand Committee and I believe has not yet been answered. The service is provided not only to individuals seeking to adopt but is a service that is provided to others including local authorities. Can the Minister explain whether the department, in its costings and reaching its figure of £240,000, has separated out the service to individuals from the service that will be more widely used?

Photo of Lord Adonis Lord Adonis Parliamentary Under-Secretary (Schools), Department for Education and Skills, Parliamentary Under-Secretary (Department for Education and Skills) (Schools)

My Lords, I am well aware that I am arguing the least popular cause of all this evening and that my comments will not make many converts, but I hope that I can at least explain the Government's thinking behind the inevitably unpopular decision to charge for a service that has previously not been charged for.

In the first case, there is a simple issue of priorities. We believe that it is better to put the resources into the front line where there is higher priority than to subsidise individuals whom we believe are well able to pay the fees we are discussing, while accepting that we will waive those fees on a means-tested basis for those who are not able to pay.

Our second argument relates to some of the international comparisons which we have looked at since then. I think it was suggested in an earlier debate that we were highly unusual in adopting this course. In fact it transpires that other countries do charge at similar rates for their administrative casework services. I am informed that every state in Australia, for example, charges administrative fees at varying rates and for different functions. New South Wales charges 2,270 Australian dollars, about £950, for a central administrative and casework service similar to the one that we are proposing, which is part of government fees totalling 9,700 dollars, or £4,100, on top of fees from other sources. Switzerland, Norway and Israel all have fees which include costs for adoption assessments and for administrative work akin to our casework process. Israel caps total fees at 20,000 US dollars, which is about £11,300.

So I do not think that we are way out of line on international practice in what we are seeking to do.

The Hague Convention allows reasonable fees to be charged for that work, which is precisely what we propose in this case. As we have said, in the context of approximate total cost to inter-country adoption, which ranged between £10,000 and £12,000, we do not think that it is unreasonable to make a fee of that kind so that resources can be directed to higher priority services.

On the point raised by the noble Baroness, Lady Barker, we see advice to social workers on domestic and international issues as fundamentally different from the support service that is provided directly to individuals. It is reasonable to split out those costs in the way that we propose.

In Grand Committee, I made a point which I repeated today. We are very mindful of the need to see that the service reaches a higher standard before people are expected to pay for it. In Grand Committee, I indicated that we would expect applications for which we are in receipt of full and complete documentation to be processed within 12 to 14 weeks, which is significantly less than some of the periods that have been experienced recently, as we modernise the service and seek to bring administrative functions together in one place. We would be charging for a service that would be improving. I recognise that charging for any service which has previously been free will be regarded by some people as unreasonable. But in the context of priorities, international best practice and overall charges which inter-country adopters face, and the waiver that we will give for those on lower incomes, we believe that this is a reasonable step to take.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

My Lords, it would be disingenuous of me if I said that I was disappointed by that reply because I was not seriously hoping that the Minister would suddenly eat his words at this stage. However, I am very happy to thank him for throwing further light on the matter. I still maintain that it is an unfortunate signal to send to those who, with the best motives at heart, want to give a good and loving home to a deprived child from overseas and who will find themselves saddled with additional costs for all the trouble and expense that they already have to incur in setting about that task.

Nevertheless, I have noted what the Minister has said. I hope that the exemptions about which he spoke will cut in at a reasonable point and that it will be readily apparent to those who are going through the process that those exemptions are potentially available. It is important that it is brought to their notice that if they are of limited means there could be a case for them to apply for dispensation on those grounds. It remains for me only to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Other amendments relating to adoptions from abroad]:

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

moved Amendment No. 32:

Page 16, line 40, at end insert—

"( ) In section 85 of the Adoption and Children Act 2002 (c. 38) (restriction on taking children out) in sub-section (2) after "paragraph (a)" insert—

"(aa) the High Court has given leave for the child to leave the United Kingdom to be placed with the prospective adopters pending the issue of an application under section 84"."

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, I find myself in the unenviable position, late at night when people are tired, of having to go through something quite technical at some length. I crave the indulgence of the House to do so. We discussed this matter in a very short period at the end of a day in Grand Committee. I am afraid that we did not do the subject anything like the justice that it should have had. It was a highly unsatisfactory discussion and outcome. So I have to return to the subject at some length.

The issue concerns the adoption of children from this country in countries abroad. Frequently, they will be adoptions by relatives of the children. The Government's response in Committee was that this would be a deregulation too far. The noble Lord, Lord Adonis, accepted that the proposal in this amendment might appear burdensome to some individuals. Our case is that for many individuals it will not be burdensome, it will be impossible. A measure that is designed to protect children may have the effect that they cannot be placed with the most suitable adopters, who are often people with whom they have a relationship. Noble Lords will understand that this amendment seeks to give the courts the power to waive the period of 10 weeks' residence in this country with the people who are going to adopt the child.

The Minister said that the period for the child to have lived with the adopter was being reduced from six months to 10 weeks. He described that as

"a significant move in the direction that the noble Baroness wishes".—[Official Report, 17/10/05; col. GC 178.]

That is misleading. Under the existing provisions of Section 55 of the Adoption Act 1976, the court cannot make an order unless the child has had his or her home with the prospective adopters for six months prior to the order. Under the 2002 Act, the 10-week period must have elapsed before the application can be commenced. Even if the court and all the parties act with the greatest possible speed, it is most unlikely that an order could be made in less than, say, three weeks after the issue of the application. In practice, it could be much longer. The move in the right direction may not be very significant.

There are other changes that have an effect in this matter. Prior to June 2003, the restriction on taking a child out of this country for adoption did not apply if the child was to be adopted by a parent, guardian or relative, which was defined as including aunts, uncles and grandparents, but not great aunts or great uncles. Since that date, the amendment to the 1976 Act introduced by the Adoption and Children Act 2002 has removed the exemption in relation to adoption by relatives. The 2002 Act does allow for regulations to be made that would make exceptions for relatives, but none has been made.

In addition, the 2002 Act has made a significant amendment to the Children Act 1989, which restricts the ability of a local authority that has a child in its care to obtain leave of the High Court to place the child outside England and Wales if the placement is to be for the purpose of adoption. That amendment will come into force with the rest of the 2002 Adoption Act on 30 December this year. It is somewhat illogical that the power exists for the court—any court, it could be a magistrate's court or a family proceedings court—to make an order permitting a local authority to place a child in its care outside the jurisdiction under paragraph 19 of Schedule 2 to the Children Act 1989, including overruling a parent's objection to such a course if the court is satisfied that the parent is unreasonable in refusing to consent, as long as, from 30 December when the Adoption and Children Act comes into force, the placement is not for the purpose of adoption.

There are no specific requirements about the report that must be supplied to the court or about the nature of the supervision that it is proposed will be exercised once the child leaves the jurisdiction, although, in practice, the court will wish to be satisfied that the arrangements are going to be made. The court in such Children Act proceedings is required, as it will be in the proceedings under the Adoption and Children Act 2002, to regard the child's welfare as its paramount consideration. However, the court may, in those cases where a placement for adoption is proposed and it is impossible for the prospective adopters to comply with the residence requirements of Section 84 of the Adoption and Children Act, find itself unable to make the order that would, in its view, be the best one to promote the child's welfare.

In Committee, the noble Lord, Lord Adonis, said that it was necessary to have regard for the fact that once a child was outside the United Kingdom, he or she would no longer have the protection of the authorities in this country. The same applies to children placed, with the leave of the court, outside the jurisdiction under the Children Act 1989.

The noble Lord suggested that should the adoption not proceed as planned, we in the UK would not know whether it had occurred. That is a possibility. But the reason for suggesting in the amendment that this power should be exercisable only by the High Court underlines the importance of careful scrutiny that would be required before an order were made. In practice, in placements for the purpose of adoption, it is likely that careful assessments and inquiries would have been undertaken before an application was even made to the court and that there would be an even greater likelihood that it might be the case, say, if the child were placed with foster carers under the Children Act provisions, that the overseas authorities concerned would notify the UK authorities if for some reason the adoption did not proceed.

The trial period required before an adoption order can be made has been put in place to enable the court, with the benefit of reports presented to it by the adoption agency, to satisfy itself that the child has settled in well with the new family. It presents a problem where the family does not live in the same country as the child. The solution we have adopted in England and Wales is that adopters who live in another country must be in this country for a trial period. That is a major drawback, particularly for relatives who live abroad and who may have jobs abroad. They may not have jobs at all but simply live abroad, but they are the only relatives of those children.

The point of this amendment is to enable families living abroad who are going to adopt children to do so, when it has been determined that they are the best people. As the noble Lord, Lord Adonis, outlined the matter, adopters will have to move back to this country for a period, which may jeopardise their livelihoods and would not be in the best interests of children.

I have taken a lot of time on the amendment, for which I apologise. I realise that these provisions apply to a very small number of children, but I do not think that I shall have an opportunity in the near future to raise their case again. All we ask is for the High Court to have the flexibility, in particular cases where it is satisfied that it is in the best interests of a child to be adopted abroad, to enable that to be done in a way which does not mean those prospective adoptive parents cannot meet our criteria. What matters is the welfare of the child when living with those adoptive parents. I cannot see why insisting that they be assessed for an extended period in this country will necessarily help the court to determine what happens. I beg to move.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health 9:45, 14 November 2005

My Lords, I very much share the concerns expressed so well by the noble Baroness. In what may appear to be the rather arid terminology we are using in these amendments, it always helps to give a graphic example—I hope this is a graphic example. I have been advised of one case where a local authority wished to place a child with her aunt who lived in Spain, who was the child's only relative in the whole of Europe. The aunt and her husband already had three young children. The husband was employed in Spain and the two older children were at school there. So, in order to achieve an adoption placement with the aunt it would have been necessary for the aunt, her husband, and, in practice, the other children, to come and live in this country until an application could be made after the child had had her home with the family for 10 weeks. One has to ask where that home would have been—in some temporary lodging or other, very probably. How would that have been funded? Maybe by the local authority, but we do not know. Would the husband have lost his job? Probably, and the family would have been put in the position of being unable to support either this child or the other children.

In another case, pending at the moment, a local authority wanted to place a small child with prospective adopters who have already adopted her two brothers. Since the earlier adoption orders were made, the family has moved permanently to the Republic of Ireland. To enable the placement to proceed, the family has contemplated the possibility of arranging for the parents to come to live in temporary accommodation in England for several months, leaving the older children with a relative in Ireland so that they can continue their schooling. Not only would that impose considerable hardship on those older children, but it would mean that there would be no opportunity to test how well the older children adjusted to the presence of the younger ones, or how well the parents would be able to look after the child when they had the older children to care for as well.

The amendment proposed would introduce an element of flexibility to enable the court, where proper safeguards were in place, to make an order that would best meet the needs of the child concerned. The drawback of the Government's proposals, apart from the disruption to the lives of the prospective adopters, even assuming that they were able to comply, is that the observations of the agency on the development of the child's relationship with the prospective adopters are bound to take place in artificial surroundings. I suggest to the Minister that this is a matter to which the Government may agree to give some further thought.

Photo of Lord Adonis Lord Adonis Parliamentary Under-Secretary (Schools), Department for Education and Skills, Parliamentary Under-Secretary (Department for Education and Skills) (Schools)

My Lords, the principle on which we are acting in this matter is the same as that on which we have acted in every other matter that we have discussed in relation to the Bill, which is that the interests of the child should be paramount. Although the number of children about whom we are talking in this area is tiny—in the dozens per year—they nevertheless demand our full consideration, and I do not think that the noble Baroness, Lady Barker, need apologise in any way for taking up the time of the House in setting out her case.

I could simply repeat the argument that I made in Grand Committee, that is, the Government's inclination in response to this amendment. However, since the noble Baroness has set out an extremely detailed case that considers a number of cases arising from the Acts of 1976 and 2002, and issues relating specifically to relatives of those people who have been adopted, the most constructive reply that I can make is that I will study with care what she has said in that regard. Without prejudice at all to that consideration, because I do not want to give a misleading impression from the Dispatch Box, I will consider what she has said and discuss it with my honourable friend Maria Eagle, who has policy responsibility for it. It may be that the noble Baroness, Lady Barker, Maria Eagle and I can meet to discuss the matter to see whether we can address some of the concerns that the noble Baroness has raised. I say that without prejudice, because our concern in this matter is to ensure that the interests of the child are protected.

It is a requirement of the 2002 Act that before applications can be made for orders under Section 84, the prospective adopters and the children must have shared their home for 10 weeks. That is an absolute requirement under the Act and one that seems to us eminently reasonable in relation to issues concerning child protection. We should need to be convinced that any change, even in respect of relatives, gave us absolutely robust protection in cases where children had been taken out of the jurisdiction and concerns were then raised at a later stage.

With the important rider that I cannot give any undertaking that we will change our policy, I will look at this matter further, I will draw it to the attention of my honourable friend and I will consider whether we can meet some of the noble Baroness's concerns.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, I thank the Minister for his reply. I also thank the noble Earl, Lord Howe, for humanising a very technical matter.

I thank the Minister, but he will understand that on this side of the House, we have absolutely no intention of setting up loopholes and enabling people to find their way around child protection. We are simply endeavouring to find a way around the problem when it has been broadly determined that the best interests of a child are served by being with a particular person and that person is not resident in this country. It applies to only a small number of children, although I suspect that the number of children who come into this category may increase as people become more mobile and cross borders to live in different places. I welcome the Minister's suggestion that we may meet his counterpart in another place to take this matter forward. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

moved Amendment No. 33:

Before Clause 14, insert the following new clause—


For section 69 of the Children Act 1989 (power to prohibit private fostering) substitute—


(1) Every local authority shall keep a register of persons who act as private foster parents within their area.

(2) A local authority shall not register any person as a private foster parent unless it is satisfied that he is fit to act as a private foster parent.

(3) The Secretary of State shall by regulations make provisions as to the considerations to which a local authority is to have regard in reaching a decision as to whether to register a person as a private foster parent.

(4) A local authority shall cancel the registration of any person under subsection (1) if—

(a) it appears to them that the circumstances of the case are such that they would be justified in refusing to register that person as a private foster parent;

(b) the care provided by that person for any privately fostered child is, in the opinion of the authority, inadequate having regard to the needs of that child; or

(c) the premises in which any privately fostered child is or would be accommodated are not suitable for that purpose.

(5) No person shall act as a private foster parent unless he is registered under subsection (1).

(6) A person who contravenes subsection (5) shall be guilty of an offence.

(7) A person guilty of an offence under subsection (6) shall be liable on summary conviction to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the standard scale, or to both.

(8) A person aggrieved by the refusal of a local authority to register him as a private foster parent may appeal to the court in accordance with paragraph 8 of Schedule 8 to this Act.""

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

My Lords, Amendment No. 33 returns briefly to an issue which we have debated a number of times over the past three or four years, most recently during the passage of the Children Act 2004. The issue is private fostering.

This Bill quite properly tightens up the current legal provisions relating to inter-country adoptions, and it does so with the purpose of protecting vulnerable children from exploitation. But there is another group of children whom one could argue were equally vulnerable to children adopted from abroad; namely, children who are the subject of private fostering arrangements. It seems to us that anyone who wanted to get round the procedures associated with inter-country adoption could opt instead for private fostering, where the regulations are, to put it mildly, a great deal looser. That is the justification for our having tabled this amendment.

The numbers of children who are privately fostered are probably considerable. The best estimates are that about 10,000 children in England and Wales are fostered privately and some studies mention as many as 15,000. Between 80 and 90 per cent of them come from West Africa. At the moment, private foster carers are required only to notify local authorities of the arrangements that they have made: in other words it is up to private fosterers to own up. That is not the kind of process which is likely to expose to the daylight those foster parents who may pose a danger to children. When serious problems occur it is often too late. There is a tighter alternative to notification, which is to make all private fosterers subject to registration. That is the alternative which we have consistently proposed to the Government on a number of occasions and which they have, with equal consistency, rejected at least in practice although there is provision in the Children Act to go ahead if the Government believe that that is right.

We all acknowledge that a registration scheme would be more bureaucratic than simple notification, but it would also have a number of advantages. One of them would be that local authorities would be able to bring a private fostering arrangement to an end if they thought that it was undesirable. They cannot do that at the moment, or at least not without a great deal of difficulty. Another advantage would be to ensure that private fosterers were approved in advance as being suitable. People often object that this is none of anybody's business if the arrangement is purely private. But with the tragedy of Victoria Climbié still fresh in our minds, my own view is that many of these arrangements should be vetted in advance; and at the very least the child's individual needs should be assessed and provided for. Notifying yourself as a foster carer is not at all the same thing as being approved, but in the minds of birth parents overseas, it can look like the same thing, and that can lead to a false sense of security.

I should be grateful if the Minister could take this opportunity to say how the Government's thinking has developed since we debated the issue last year. What have been the results of the enhanced notification system thus far? What criteria are they using to decide whether the current system is or is not satisfactory? The last time that the Government collected figures in this area was 1991, so the up-to-date statistics will be quite revealing—perhaps in a way that may not be fully anticipated. I beg to move.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health 10:00, 14 November 2005

My Lords, I do not know whether the noble Lord, Lord Adonis, is aware of this but I believe that he is the third Minister who has been at the crease since the noble Earl, Lord Howe, and I raised this subject. The noble Earl and I take it in turn to go into battle on this issue, and today he has been the equivalent of Freddie Flintoff and I shall be the spinner.

Has the Minister had an opportunity to read the recent report on the work done by BAAF, in consultation with the Voice newspaper? That paper for the first time did a large survey among its readership about private fostering—and a very revealing document it is too. It has long been known, since the publication of the report People Like Us, that there are different communities within this country in which private fostering is more prevalent and more the usual custom, partly because of the traditions in the parents' country of origin. They are very honourable traditions in which extended families, friends and relatives look after children.

On the last occasion that we discussed this subject, the noble Baroness, Lady Ashton, was keen to impress on us that some local authorities had pilot schemes in which the local authority had employed officers to work with particular communities and potential private fosterers. Could the noble Lord, Lord Adonis, tell the House what has happened in those pilot areas and what the results of those schemes have been? That was the Government's principal reason for resisting the reasonable and persuasive case set out by the noble Earl, Lord Howe, to move towards a more rigorous system of registration.

Finally, we are talking not only about the case of Victoria Climbié—there are many other cases of children in such situations, such as Toni-Ann Byfield and others—when the understanding of parents who live abroad of the systems of childcare at work in this country has been perhaps in part a contributory factor in those children being put into situations of great danger—situations which we would not allow to happen if they were any other child. On these Benches, it is our contention that until such time as private fostering is registered, we run the risk of leaving these extremely vulnerable children—perhaps some of the most vulnerable—in danger. So I am very pleased to support the noble Earl, Lord Howe, again on this matter.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton, for tabling these amendments. Could the Minister say how successful the Government have been in their proposals that a social worker should visit privately fostered families to check on them every six weeks for the first year? Is he aware that in the consultation by the Children's Rights Director, Dr Roger Morgan, based at the Commission for Social Care Inspection, children said that social services should definitely check to make sure that privately fostered children are safe, and that one of the best ways in which to do that was to have a social worker to visit? The majority of children said that they should visit once every month rather than every six weeks. Perhaps the Minister could write to me to let me know how successful and consistent these visits are, as far as he can find out. When will he report on the adequacy of current arrangements? This is in line with the questions the noble Earl, Lord Howe, asked.

I look forward to the Minister's response, but I suppose he will also recognise the relevance of concerns about social worker recruitment, particularly the fact that there is currently a 20 per cent vacancy rate in London. Our concerns about monitoring these placements must be reinforced, given the concerns about the workforce availability to keep an eye on these children in these vulnerable situations.

Photo of Lord Adonis Lord Adonis Parliamentary Under-Secretary (Schools), Department for Education and Skills, Parliamentary Under-Secretary (Department for Education and Skills) (Schools)

My Lords, I am new to these debates, which seem to take place regularly in your Lordships' House. I am not sure whether they always take place during Test matches, because I have read the last debates, and the noble Baroness's remarks in introducing amendments similar to the one moved by the noble Earl this evening always seem to begin with cricketing metaphors. Indeed, she started almost word for word in the same way last year as she did this year. At least I am not in the position of having to repeat myself.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

Yes, my Lords, but since the last time we have won the Ashes.

Photo of Lord Adonis Lord Adonis Parliamentary Under-Secretary (Schools), Department for Education and Skills, Parliamentary Under-Secretary (Department for Education and Skills) (Schools)

My Lords, I will not follow that up by saying that this will be a second triumph in that line.

Our concern on this amendment is straightforward. The House debated this at some length last time. A significant change was made in the notification scheme that was enacted by the Children Act. The new regime set out in the Children Act has only just come into force. It did so on 1 July this year, as did the regulations to implement it.

The sunset clause, as I believe it is called, which my noble friend Lady Ashton talked about at great length in the last debate, expires in 2008, so the requirement to undertake the assessment the noble Earl referred to is something we take seriously. We will do so during the lifetime of this clause. Since the arrangements have only just come into effect, however, it would be too soon at the moment to seek to replace one set of arrangements, to which local authorities are now working and seeking to upgrade their services to meet, with another. However, the Bill does give the Government the power, if they believe it necessary on their evaluation of the progress of the new notification system, to bring in an enhanced system if they believe this would be in the public interest.

I shall deal with the two specific points that have been raised. I am told that the first statistics from the new monitoring arrangements will be available at the end of this month. I will see that they are made available to all noble Lords who are participating in this debate so they can add some factual basis to our discussions. With regard to the pilots, I am told by my officials that they are not pilots as such, but:

"proactive schemes for engaging with private fosterers", which is somewhat different, because we want to see all local authorities move rapidly to a greatly enhanced service in respect of notification. I cannot give details of how those schemes are working at the moment, but I will write to noble Lords to give them that information when we have gathered it.

The case I make is therefore similar to the case that was made last year, but with the added force that we have legislated for a new arrangement that has just taken effect. We do not believe that to replace the one with the other at this stage would be a well-founded move. The new notification scheme offers a robust framework of safeguards. In particular, the new regulations that came into effect on 1 July require local authorities to satisfy themselves of the suitability of a proposed arrangement before it commences, where advance notice has been given to them. Previously there was no requirement for the local authority to take action prior to the commencement of an arrangement. Local authorities can now exercise their powers to impose conditions upon, or prohibit, a proposed arrangement before it begins. There are corresponding new obligations on local authorities to promote awareness within their areas of the need to notify them of private fostering arrangements. Local authorities are required to monitor closely the operation of notification schemes in their respective areas, and they are now under a duty to appoint an officer for this purpose.

Our objective is to encourage parents and private foster carers to come forward so that local authorities can fulfil their Children Act duty to satisfy themselves that the welfare of privately-fostered children is satisfactorily safeguarded and promoted. We believe the new arrangements set out in the Children Act, and in the regulations that have just come into force, will ensure that we have the additional powers as set out under the Act. We have a requirement to assess progress against criteria that we will develop, and we have a sunset clause that means this must all take place within the next three years. On that basis, we do not believe the time has come to change the law just a year after it was last changed. I know there are still strongly held views on this matter, but I hope that the amendment can be withdrawn at this stage.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health

My Lords, I am grateful to the Minister for that reply and to the noble Baroness, Lady Barker, and the noble Earl, Lord Listowel, for their supportive comments. We shall await the publication of the statistics with considerable interest and watch the progress of the enhanced notification scheme with equal interest. While I take the Minister's point that the amendment is perhaps not entirely appropriate for this Bill, I hope that he will take on board the numerical point that I made: that the sheer number of children in private fostering arrangements whom we believe we are considering—of course, no one knows the precise number—dwarfs the number of inter-country adoptions. On that level, at least, the potential problems thrown up by private fostering are greatly magnified in comparison. In view of the time, it falls to me, with thanks to the Minister, to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

In the Title:

Photo of Baroness Thornton Baroness Thornton Labour

moved Amendment No. 34:

Line 2, after "orders;" insert "to make provision about risk assessments;"

On Question, amendment agreed to.

House adjourned at twelve minutes past ten o'clock.

Monday, 14 November 2005.