Clause 20 - Placement orders

Adoption and Children Bill – in a Public Bill Committee at 10:45 am on 29 November 2001.

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Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 10:45, 29 November 2001

I beg to move amendment No. 32, in page 13, line 36, leave out subsection (1) and insert—

`(1) A placement order is an order made by the court authorising a local authority—

(a) to place a child for adoption with any prospective adopters who may be chosen by the authority; or

(b) if the child is already living with the prospective adopters, with the prospective adopters named in the order.'

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

With this it will be convenient to take amendment No. 34, in page 14, line 5, after `authority', insert

`or, as the case may be, with prospective adopters with whom the child is already'.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

The aim of the amendment is to clarify placement orders. I will use the example of a child who has already been placed with foster carers, those carers want to adopt and that decision is supported by the local authority. Under clause 21, the local authority will be required to apply for a placement order. However the placement order as defined in clause 21 entitles the local authority to place the child with whomever it chooses. It is odd to ask the court to make an order that authorises the local authority to place the child for adoption with anyone it chooses when there already is a plan for an adoption by the current carers. Can the Minister explain the reasons for that apparent anomaly? If the appropriate placement order cannot be achieved, the court would have to consider whether adoption was the correct course of action.

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

It might be helpful to spell out the fact that clause 20 defines a placement order, which is

``authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.''

It continues in force until

``(a) it is revoked . . .

(b) an adoption is made in respect of the child, or

(c) the child marries or attains the age of 18 years.''

Only local authorities can apply for placement orders. That is a change from the previous version of the Bill, published earlier this year. Dare I say that the Government have been listening to representations and have responded? Under the previous Bill, voluntary adoption agencies applied for placement orders. Consultation suggested that it was inappropriate for a private voluntary sector body to be able to seek a court order to place a child compulsorily for adoption against the parents' wishes. The Government agreed and made the change.

Subsection (2) provides that a court may not make a placement order unless the child is already subject to a care order or the court has the power to make a care order under section 31(2) of the Children Act 1989. The court must be satisfied that the child is suffering or is likely to suffer significant harm because he is not receiving what is reasonably expected of a parent. That is another important change from the March version of the Bill, and one that delivers our commitment to align adoption legislation with the Children Act. The effect is that the same threshold for compulsory intervention in family life applies where a local authority seeks to place a child for adoption without parental consent. That is the right position. The Children Act threshold is widely accepted and well understood, and it should apply in this respect.

The effect of the amendment moved by the hon. Member for Romsey (Sandra Gidley) would be that, when a placement order is made for a child who is already living with prospective adopters, the order would authorise that specific placement, not placement for adoption generally. The main problem with that proposal is the question of what would happen in the regrettable event of the placement breaking down.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

That was the point I was trying to make, albeit slightly differently. If the local authority is convinced that adoption is the right choice, there is obviously a problem if a breakdown occurs. In such a case the court would have to reconsider whether adoption was the right course to take. Surely that would be determined by whether the foster care was at a stage where the child had been with those foster parents for a long time, and whether coming to that decision had involved a long process.

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

I believe that the situation is precisely the reverse. If, as the hon. Lady appears to be suggesting, the placement order was a specific placement order, relating to a specific placement, and if that placement broke down, the local authority would not be authorised to place the child elsewhere.

The terms of the placement order as envisaged under the Bill enable a child to remain placed with foster carers if those foster carers had originally planned to adopt—that seems to be what the hon. Lady is concerned about. However, if that placement broke down and if the local authority still thought that the child should be placed for adoption, it would not have to return to court seeking another placement order before it could place the child for adoption again. Such a process would lead to harmful delays for the child in cases where a suitable alternative adoptive family was available.

The issue of whether placement orders should be general or specific was a key question posed during the public consultation on the placement proposals conducted by the Conservative Government in 1994. The responses to that consultation were strongly in favour of general placement orders on the grounds that they made the process both simpler and more flexible.

The purpose of placement orders is to enable the court to decide whether placement for adoption is in the best interests of the child. The identity of any prospective adopters will clearly be relevant if the child is already placed or if a potential match has been provisionally identified, but the court is essentially being asked to take a decision in principle that the child ought to be placed for adoption. It is not being asked to select and match the child with prospective adopters—that is a role for which adoption agencies have the proper skills and that they are equipped to perform. With those assurances, I hope that the hon. Lady will feel able to withdraw her amendment.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

That clarification is useful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I beg to move that amendment No. 33, in page 13, line 42, after `met' insert

`in which case if the court makes a placement order it shall also make a care order'.

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

With this it will be convenient to take amendment No. 38, in page 17, line 42, leave out subsection (1).

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

This is another probing amendment, because it is by no means clear why the framework in the Bill makes placement orders an alternative to care orders instead of simply an adjunct. Perhaps the Minister could explain why the Government think it necessary in effect to give children who are the subject of placement orders a separate status.

Clause 20(2) states:

``The court may not make a placement order in respect of a child unless—

(a) the child is subject to a care order,''

but clause 28, which deals with further consequences of care orders, states:

``Where a placement order is made in respect of a child . . . subject to a care order . . . the care order does not have any effect at any time when the placement order is in force.''

Trying to understand how it will work in practice is like bashing one's head against a brick wall.

Under a care order made under the Children Act, the local authority would have parental responsibility, but clause 51 provides that certain Children Act duties may be modified by regulations: examples include ascertaining and taking into account the views of parents and others to promote contact with the parents. It is hard to see why no reference is made to modifying section 23 of the Children Act, under which local authorities have a duty to make arrangements to enable a child to live with a parent, guardian or relative. Is it considered that the placement order automatically removes that duty?

The purpose of the amendments is to tease out whether the Government believe that it is feasible to have a placement order as an adjunct to a care order rather than provide for a separate scheme. If the amendment were accepted, clauses 25 and 26 would have to be modified.

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

To respond to the hon. Lady's last point first, providing for the care order and placement order to run in parallel could lead to legal confusion because, for example, they are subject to different rules for discharge and revocation, for removing the child, and for contact with family members and others. We have taken the simplest approach in line with the principle that children should be subject to the fewest number of orders to provide them with the necessary protection.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

One of the themes running through our discussion is that of trying to make the Bill mirror the Children Act as closely as possible, so what is the reason for having different discharge rules and regulations?

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

I shall come to those points later.

The amendment would require the court to make a care order whenever it made a placement order, unless the child was already subject to a care order. Under clause 28, the care order would be instantly suspended for the duration of the placement order, but if the placement order were revoked, the care order would automatically revive, placing the child in the care of the local authority. The current provisions provide the court with the flexibility to make the most appropriate arrangements on the discharge of a placement order, taking account of its full range of powers. Amendment No. 38, as the hon. Lady said, provides that the making of a placement order does not suspend any pre-existing care order.

To come to the important point about protecting the child, the Government believe that the amendment is unnecessary. The placement order provides the local authority with all the powers it needs: it has parental responsibility for the child and, as with care orders, it may, if necessary, restrict the parents' ability to exercise their parental responsibility. Under clause 33, no one other than the authority may remove the child from the placement unless that is done under a specific legal power or the child is arrested. As placed children will be looked-after children, the authority will be under the same general duties set out in section 22 of the Children Act to safeguard and promote the child's welfare, appropriately modified for adoption this is the important point through regulations made under clause 51. If a placement order were revoked, any pre-existing care order would automatically revive, so the child would continue to be protected.

The hon. Lady asked why the placement order is separate from the care order and the implication of her question was why not just use a care order? The care order is not specific. The placement order is intended to ensure that when placement for adoption is planned and parents have not consented, there is a court decision specifically on that matter. That is one way in which it is specifically related to the needs of adoption. The other issue, as the hon. Lady rightly said and as I have suggested, is that modification will be necessary through regulations made under clause 51.

The hon. Lady asked why there are different discharge arrangements, and we will come to that when we consider clause 23. However, the limits on discharge for placement orders allow the local authority time—12 months—in which to find an adoptive placement if the court has decided that the child should be placed. I hope that I have reassured the hon. Lady that distinctively different provisions and considerations are necessary for placement orders.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 11:00, 29 November 2001

In circumstances where the threshold conditions have been proved, would not the arrangement that my hon. Friend describes leave a child in an unfortunate limbo if a placement proves impossible to find and they do not have the legal backing of a care order?

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

There are three possible scenarios. First, a care order could already be running; if so, the care order would come back into operation if the placement order were revoked. Secondly, a local authority could apply simultaneously for a placement order and a care order. Thirdly, an application could be made to revoke a placement order, in which case the local authority would know as much and could apply for a care order.

Because there are different adoption circumstances, it is necessary to make separate provision through placement orders. So far as running both types of order simultaneously is concerned, we need, as I have said, to limit the number of orders and the complexity of the system.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

The hon. Member for Lancaster and Wyre makes a very important point. Where the placement order breaks down—the third option to which the Minister referred—there is an obvious and immediate need for a care order, but what about the child's welfare during the gap between the cessation of the placement order and the application for a care order? What happens if the local authority does not act quickly enough? There is a potential limbo, which is the valid point that the hon. Gentleman was addressing.

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

It is a valid point, but I have given a valid response. If the local authority was concerned about that problem at the time of application, it could apply for both a placement order and a care order—[Interruption.]

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

Order. If the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) wants to intervene, he must do so in the appropriate manner.

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

As I was saying, the local authority could apply for a placement order and a care order at the same time. In effect, the care order would not operate while the placement order was in force, but would spring into life if the placement order were revoked. Alternatively, because the local authority would be aware of an application to revoke the placement order, it could act quickly to ensure that the care order was in place.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I still feel that the provision is unnecessarily complex and will give rise to difficulties in practice. However, it is not worth pressing the matter to a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 96, in page 14, line 6, after `with', insert

`and every effort has been made to inform each parent or guardian or other persons holding parental responsibility.'.

In the true tradition of probing, this is another probing amendment. It deals with consultation on placement orders and its purpose is to plug any potential loopholes and ensure that everyone is satisfied that they have had ample opportunity to make their representations on the process and to be kept informed about the stage that it has reached and what is still to come.

If the court decides to go ahead with a making a placement order regardless of the consent of the parent or guardian—I am still keen to get the Minister's clarification regarding other persons with parental responsibility—is that consent, in effect, overruled by default if the parent or guardian has not appeared on the scene to make a rejection of consent order? The Bill should ensure that the process cannot proceed by default because for some reason the parent or guardian was not traced. Should the consent of both parents or both guardians be obtained? A birth father—more likely than a birth mother—may for various reasons have disappeared from the scene, leading to the circumstances that made an adoption necessary in the first place.

It should be incumbent on the court to ensure that each parent or person with parental responsibility has been informed about the process that is taking place and the stage that it has reached; otherwise, the whole procedure could take place in the ignorance of certain key individuals. I am sure that that would happen in only a minority of cases, but we are trying to plug the loophole so that nobody can say that they were left in the dark and that had they been properly informed, their views would have been different, or they could have made representations to the court on why their consent should not be dispensed with.

The issue requires probing and clarification. Which of the parents or parental responsibility candidates need to have their consent dispensed with, and to what lengths will the court go before it makes that decision?

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

I hope to be able to reassure and educate the hon. Gentleman. The amendment seems to be designed to ensure that the courts cannot make a placement order unless every effort has been made to notify the parents and everyone else with parental responsibility. The arrangements for notification are set out in clause 126, which provides that the court rules must require certain persons to be notified of the date and place where the application will be heard, and of the fact that unless the person wishes or the court requires it, the person need not attend. The people who have to be notified are those whose consent is needed for the making of the placement order, in so far as they can be found.

In the light of the Opposition's confusion on Tuesday, it might be useful to remind them who those people are. Under the Bill, the list of people whose consent is required for the making of a placement order or an adoption order follows the model of the Adoption Act 1976. First are the natural parents of the child who have parental responsibility. Under the Children Act 1989, mothers automatically have parental responsibility, as do married fathers; unmarried fathers can acquire parental responsibility either by marrying the mother of their child or, under section 4 of the Act, by agreement with the mother or by a court order. Under clause 106 of the Bill, they will also acquire parental responsibility automatically if they jointly register the birth with the mother.

The second person whose consent is required is any guardian of the child. That means a guardian who may be appointed under section 5 of the 1989 Act to act in the event of the parent's death. I think that that covers the point made by the hon. Member for North-West Norfolk (Mr. Bellingham) on Tuesday. Once the Bill is enacted, special guardians will also be included.

Those individuals are the only people who can consent to the adoption of a child under the 1976 Act. Under the Bill, they are the people who can consent to a placement order or an adoption order. Other people may have parental responsibility—as we have discussed, it is possible for parental responsibility to be shared—but it would not be appropriate for those others to consent to adoption or a placement order.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

Is the Minister satisfied that the procedures for finding the people who must give consent are adequate? Presumably there are such procedures, although it is not an area with which I am familiar. Is there a need to review them?

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

With some provisos, which I might mention in a moment, we are confident that the procedures are adequate. As I have said, clause 126 lays down the process for notifying the relevant persons. It also provides that if none of them can be found—I think that that is what the hon. Gentleman means—any relative prescribed in the court rules who can be found should be notified instead; however, they cannot give consent. As we discussed on Tuesday, ``relative'' is defined in clause 129 as a person:

``in relation to a child . . . a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage''.

The hon. Gentleman might also have been referring to the procedures for finding and notifying unmarried fathers. Under the Adoption Agencies Regulations 1983, a local authority must make reasonable efforts to contact an unmarried father if it thinks that doing so is in the child's best interests. We will place a similar requirement on agencies in the new regulations.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am a little wiser but not entirely enlightened by the Minister's re-explanation of parental responsibility, especially in relation to circumstances in which responsibility is shared and the hierarchy of the people in her list who have to be consulted. She referred to ``reasonable efforts'' to contact unmarried fathers, but that is a moveable feast, so I hope that regulations will specify rather more closely the extent of an authority's investigations—for example, whether they are to be time limited, and whether it delays the process if someone has gone abroad and has to be tracked down to give parental consent. I am still a little unclear about how many boxes need to be ticked off before parental consent can be dispensed with.

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

The hon. Gentleman appears to misunderstand. An unmarried father could not grant consent. Only a married father would have parental responsibility and could provide consent in such circumstances.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

But the fourth category of person on the list that the Minister gave was unmarried fathers who had acquired parental responsibility, so it is not the case that unmarried fathers have no role in giving consent if they have acquired parental responsibility. There is a role for such fathers, under the terms that she outlined.

It is difficult, without seeing the actual regulations, to understand exactly how the procedure will work but it has been useful to place on record, to close any loopholes, that we should go to extraordinary lengths to ensure that people cannot complain that the procedure has not taken place in the full knowledge of all interested parties at the appropriate stages. Given the Minister's assurances, which go part of the way, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 11:15, 29 November 2001

I beg to move amendment No. 35, in page 14, line 10, after ``adoption'', insert ``or special guardianship''.

The amendment is very straightforward and would amend what in some respects appears to be an oversight. The Bill introduces special guardianship orders, which is welcome, but I contend that once a child is placed in a legally approved secure environment, whether by adoption or a special guardianship order, there will be no further need for a placement order. The Government appear to be suggesting that special guardianship orders are in some way less secure. Can the Minister envisage circumstances in which there will be a need to continue a placement order once a special guardianship order is in place?

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

As the hon. Lady said, the amendment would provide that the making of a special guardianship order automatically discharges a placement order. At the moment, it does not do that, and we think it right that the making of a special guardianship order should not automatically cut across a placement order. We want a court to take a positive decision to revoke a placement order, governed by clause 1 of the Bill and the adoption checklist, rather than automatically revoke it by making a special guardianship order. One reason is that, when making a special guardianship order, the court will look at section 1 of the Children Act, which, as we discussed when debating clause 1, is not specifically tailored to adoption and the issues surrounding it.

To answer the hon. Lady's last question, when a local authority agrees that special guardianship is appropriate instead of placement for adoption, we envisage that it should apply to discharge the placement order alongside the special guardianship order application. We believe that that is the appropriate process, and the Bill provides for it.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

If the Minister envisages that that will happen anyway, what is the problem with putting it in the Bill? The Minister has not clearly answered my question about how those circumstances will arise. A special guardianship order is, for most intents and purposes, not a second best to adoption but an appropriate legal measure when adoption is not appropriate for some reason—perhaps because older children are involved. It seems to me—

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

Order. If the hon. Lady wishes to catch my eye to make a further contribution, she is entitled to do so, but interventions should be short. I think that the Minister has got her drift.

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

I answered the hon. Lady's point when I said that the amendment would automatically ensure that the making of a special guardianship order discharged a placement order without consideration, and that the Government think that there is an argument for the court to make a positive decision to revoke the placement order following, as I have suggested, the appropriate process. The local authority, agreeing that the special guardianship order was appropriate rather than the placement, would then apply to discharge the placement order alongside the special guardianship order application.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I am not completely convinced, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 43, in page 14, line 11, at end insert—

`(d) 2 years after it is issued at which time it must be reviewed.'.

We continue to wade through clause 20 as the seconds tick away. Under subsection (4), which deals with the lifespan of a placement order, the three conditions under which a placement order continues are given as: revocation, the details of which are under clause 23—I have a hunch we may not come to that; the child is adopted; or the child attains the age of seniority.

The amendment is designed to place a time limit on that process, because it is undesirable that a placement order should remain in force for years. All our discussions and all the representations that we have received have shown that speed is of the essence in taking a child out of an unsuitable environment and placing them in a more suitable, long-term, stable situation. That is in the interests of all the children with whom the Bill deals. A placement order that goes on and on and does not become a permanent adoption order probably contains a weakness. It is not in a child's interest constantly to live under the shadow of uncertainty about where they will ultimately end up. Alternatively, if a child is subject to a placement order that breaks down, they can go to another placement before eventually ending up in a long-term destination.

Other countries deal with the problem more swiftly. Research from Oxford university which other members of the Committee may have received makes for interesting reading. It gives examples from other European countries and further afield. In Sweden, placements away from home must be reviewed every six months, which is shorter than the stipulation that we are trying to impose, which is probably too long. There is, however, a slight difference in that long-term adoption is far less frequent in Sweden. In most cases, the long-term aim is for children to return to their birth parents, but that would be inappropriate for the majority of children whom we are discussing. It is interesting to note that the Swedish have acknowledged the urgency of ensuring that placements do not drag on.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

Is it not the case that in addition to the regular review, someone other than the social services department that procured the placement order should conduct another review? Perhaps the Minister's Department should do the checks so that an outside body can ensure that everything is being kept up to scratch?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The Minister's time is valuable and there are many pressures upon it. Her staff's time is also valuable and there are currently inordinate pressures on them to produce explanations of the Bill and flowcharts. None the less, my hon. Friend makes a good point. If the placement order—[Interruption.] There is pressure on the Minister's time even now. To resume, if a placement order is still in place after two years, it suggests that the order is not working and that urgent action must be taken to place the child in an alternative home that may lead to a permanent adoption order and the permanence, security and long-term well-being that we are trying to achieve. Perhaps reviews should be made after less than two years if a two-year placement order is regarded as an admission of failure. As my hon. Friend suggests, an alternative body should carry out that review, because the social services department that made a placement order is responsible for—

It being twenty five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28th June] and the Order of the Committee [27th November], to put forthwith the Question already proposed from the Chair.

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

The Question is that the amendment be made. As many as are of that opinion, say aye.

Hon. Members:

Aye.

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

To the contrary, no. The ayes have it, the ayes—

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

I apologise—my hearing aid cannot be working properly. Let me try again.

Question put, That the amendment be made.

Amendment negatived.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clauses 20 to 40 ordered to stand part of the Bill

Clauses 50 and 51 ordered to stand part of the Bill

Adjourned till this day at half-past Two o'clock. {**vert_rule**}