Clause 12 - Independent review of determinations

Adoption and Children Bill – in a Public Bill Committee at 11:00 am on 18th December 2001.

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Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon 11:00 am, 18th December 2001

I beg to move amendment No. 139, in page 9, line 25, leave out—

'Regulations under section 9 may establish'

and insert 'There shall be established'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to take amendment No. 58, in page 9, line 25, leave out 'may' and insert 'shall'.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

The amendments are alternatives to each other. Amendment No. 58 is the more straightforward of the two, and I shall therefore deal with it first.

The clause is designed to establish

''a procedure under which any person in respect of whom a qualifying determination has been made by an adoption agency may apply to a panel''.

In later discussions on the clause, we will discuss what should constitute qualifying determinations, what form the panel should take, how appeals against its decisions are to be made and how much should be included in the Act rather than in regulations made under it. However, there can surely be no argument that the Bill should clearly provide for a panel rather than for the possibility of one. Will the Minister tell the Committee in what circumstances there might not be a panel? Will she also please confirm that the Government intend to bring the clause into force as soon as the Bill is enacted?

As with many other aspects of the Bill, it is of some concern that the proposed regulations have not been shown to the Committee. That is less important in some circumstances than in others. For example, in some areas, regulations made under the Adoption Act 1976 will clearly be adequate—or acceptable after a bit of tweaking. This provision is different, because it concerns a new regime—a new mechanism that is a core part of the Bill. It is designed to address one of the most serious complaints about the system: people do not have redress against the decisions of social workers. If the measure is to be taken seriously, the Government should agree to the amendment and ensure that the panel system is constituted by the time the Bill is enacted. The issues involved are complex, so I suggest that they should be considered now rather than after the new regime has been established. The amendment would deal with that by ensuring that the regulations are introduced under the Bill rather than leaving the Government to make that important decision at a later date.

Amendment No. 139 is a slightly more complicated alternative although its primary purpose is the same: to ensure that the procedures and constitution of the panel are established in the Bill rather than when or, indeed, if the Government decide to do so. It goes further, however. Clause 12 relates only to regulations made under clause 9(1). Clause 9(1) provides that regulations may make provision for any purpose relating to

''the exercise by local authorities or voluntary adoption agencies of their functions in relation to adoption . . . or the exercise by adoption support agencies of their functions in relation to adoption support services.''

Clearly, that will cover local authorities exercising their powers wrongly, although I assume that appropriate regulations will be introduced on those activities—regulations that we have not yet seen. Will the panel's jurisdiction cover only regulations made under clause 9, so that if an issue is addressed in the Bill rather than in regulations, the panel would have no jurisdiction? Surely that cannot be the intention, so I seek clarification on that.

Even if the issue of accountability is addressed in regulations, what will happen if an issue is not covered by clause 9(1), such as a right to go to the panel in connection with the giving or withdrawal of parental consent or the cost of expenses relating to the adoption process? I appreciate that the Government do not intend to grant panel access for either of those issues. The explanatory notes say that the right will apply only to parents who are refused permission to adopt and to the release of protected information. However, whether or not the Government want to restrict access to the panel, would it not be wise to draft the clause so as to give maximum ability to expand the remit of the panel later, if that is thought appropriate? It seems unwise to restrict further changes to the panel's remit, which is why we should remove the reference to clause 9.

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) 11:15 am, 18th December 2001

I support the amendments. This is an important part of the Bill. The whole idea of an independent review panel was one of the central themes of the Government's White Paper, which proposed that an independent body should convene the panel. However, I have a few questions for the Minister.

How many panels will be set up? Will voluntary organisations be represented on them? Will there be any legal representation? Will they include representatives from local authority social services departments? I know that it is difficult for the Minister to be precise but it would help if she could give the Committee a flavour of the constitution of such panels. It is important that there should be an independent review, but it must be truly independent. Otherwise, we will fail those people who have been refused the opportunity to adopt.

This is not meant to be a union speech on behalf of lawyers, but if a disappointed adopter was dissatisfied with the panel's findings, would he or she have a right of redress in the courts? Could they make an application, for example, to the High Court if the

panel had misdirected itself or failed to consider some important evidence? I am not saying that that should be the case; I am just asking the Minister to assist the Committee.

There is also the important question of cost. There is no doubt that even members of a fairly informal panel who go through the evidence when convened and consider the paperwork beforehand will have to be reimbursed for their time, especially if they come from a professional background. How will costs be worked out? Will the local authority or the adoption agency be required to meet part of the costs? Will disappointed adopters be required to do so?

Such important questions should be investigated, and I am sure that the Minister will deal with them in her reply. I fully support the contention of the hon. Member for Huntingdon that the panels should be established as soon as the Bill becomes law. It is important that there be no lacuna between the introduction of the law and the right to an independent review via the panel. An independent panel is an exceedingly useful step forward, but such questions need to be answered.

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

The clause enables the appropriate Minister to establish an independent review mechanism to review determinations made by adoption agencies. The determinations that may be reviewed will be specified in regulations, following consultation with stakeholders in the adoption field. I will come to hon. Members' specific questions in a moment.

As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said, the Government promised to establish the independent review mechanism for prospective adopters in our White Paper, ''Adoption: A New Approach''. The mechanism will be important in support of the efforts, with which all hon. Members agree, to build confidence in the adopter assessment process and to encourage more people to come forward to adopt.

The hon. Member for Huntingdon said, rightly, that we saw the panel as a way to review adoption agencies' determinations about the suitability of prospective adopters, and also their qualifying determinations on the disclosure of information held in their records that identifies third parties, as part of the new scheme for access to information underpinned by clauses 53 to 62. Any other determinations to be reviewed by the independent review mechanism will be set out in regulations. We will consult stakeholders while developing the regulations to ensure that the detail is right.

The hon. Member for Huntingdon asked about limits to the panel's jurisdiction. Under clause 12, the jurisdiction is not limited to the regulations made under clause 9. The independent review mechanism may, in theory, be used to review any determination made by an adoption agency.

I shall describe how the panel is likely to operate. The appropriate Minister may delegate the operation of the independent review mechanism to a public body or a private or voluntary organisation, and may make payments to that organisation in connection with its

operation. That will help to ensure the independence of the review mechanism, which the hon. Member for Huntingdon rightly said was important.

Amendment No. 139 would place a statutory duty on the appropriate Minister to establish the independent review mechanism. Similarly, amendment No. 58 would require the appropriate Minister, as soon as he exercised his power under clause 9, to make any regulations in respect of the functions of adoption agencies and adoption support agencies, and to establish the independent review mechanism through those regulations. Neither amendment is appropriate or needed.

In response to the hon. Member for Meirionnydd Nant Conwy, I say that the number of panels will depend on the number of determinations. It is expected that panels will be convened on the basis of need. Their constitution will be a matter for consultation, but it is expected that their make-up will be similar to that of decision-making agencies.

The question about reviewing the decision of an independent review might partly be based on a misunderstanding of the intention of the independent review mechanism. The mechanism will provide a way to review the decision made by the original adoption panel. The result of that review will then go back to the agency decision maker for consideration alongside the decision made by the original adoption agency panel. The adoption decision maker will clearly have to bear that in mind. I will correct myself if I am wrong, but if the prospective adopter felt that there had been a legal problem with the process, he could use the complaints procedure and, eventually, judicial review. Further consideration of the make-up of the panels that the Government promised in the White Paper will also be subject to the fundamental review of adoption assessment.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

Will the Minister answer my basic question on whether the Government intend the panels to be set up by the time that the Bill is enacted?

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

The hon. Gentleman is young and impatient—that is not a criticism, as sometimes those are good qualities—and I am coming to that matter. He has asked me twice about the implementation date. Given the work that I have outlined, I do not think it realistic to pledge to set up the panels by the time at which the Bill will receive Royal Assent, but I understand that the panels need to be established early in the Act's implementation. They will be brought forward for implementation before other parts of the Act are implemented. I hope that the hon. Gentleman accepts that that is appropriate, given the need to consult on some of the issues.

The hon. Member for Meirionnydd Nant Conwy asked about the costs of establishing and administering the independent review mechanism, which will be met centrally from the extra resources made available for adoption. We will consult stakeholders while developing regulations on the independent review mechanism, to ensure that the

provisions on charges are right. The Bill includes an enabling power to make regulations about charges, which can be used following consultation.

Adoption agencies may be required to contribute towards the cost of convening a review panel. That may be instead of the costs that they would have incurred anyway in setting up another panel to consider a second hearing of the agency's own panel, which usually takes place under the current legal framework. In that sense, it should not create any additional expense.

In the White Paper, we promised to develop the independent review mechanism. We have also said that, when we draw up the regulations to underpin the mechanism, we will consult stakeholders in the adoption field on how it should operate and on the determinations that it should be used to review. We will establish it as quickly as possible once we have completed the consultation process. On the basis of those assurances, I hope that the hon. Member for Huntingdon will feel able to withdraw his amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon 11:30 am, 18th December 2001

Before I ask the Committee for its consent to my withdrawing the amendment, I want to make a few points. The Government have reiterated the limited purpose of the provision. When we reach the next group of amendments, we shall discuss whether that is right, and in what contexts there should be a right to go to the panel. However, I am still confused about the Minister's statement that access to the panel would not be limited by clause 9, when subsection (1) states clearly:

''Regulations under section 9 may establish'' the procedure in question. How, therefore, is anything other than clause 9 relevant?

The Government gave no real explanation for their view that the amendments were not needed. The effect is that the Government will have no obligation to set up the panel. The rights of the child are to be paramount. However, panel rights, even in the limited context in which the Government will apply them, which will mainly concern prospective adoptive parents, will not necessarily be established.

I agree with the Minister that consultation on the workings of the panel is required. I should like that to go further and to involve consultation about what the panel should deal with. Why has consultation not yet taken place? Should the Bill be enacted with provisions for the new panel before the Government have consulted on how it is to work? Things are being done the wrong way round.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I should like to add one point. I agree with my hon. Friend that several questions are left open. The Minister referred to the costs of the review. Will she clear up a discrepancy that she did not deal with in her earlier remarks? Subsection (3)(a) states that the regulations may make provision as to

''the duties and powers of a panel (including the power to recover the costs of a review from the adoption agency''.

The power to recover the costs is quite specific. Explanatory note 54 uses the phrase

''including the power to request a contribution towards the cost of a review''.

Will the costs be partly or wholly recoverable?

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

As I have made clear, the costs of setting up the review process will be funded centrally by Government. The extent to which the costs of an individual review will be recovered from the adoption agency will be part of the subject of the consultation that I outlined in my previous response.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

It may be part of the consultation exercise. Why, then, do neither the Bill nor the notes put it in that way? Those descriptions are clearly in conflict. What is the Minister's thinking? As far as her Department is minded to do so, is it likely that the costs will be wholly recoverable, or will it be only a contribution to the costs? Can she give an early indication on this?

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I endorse my hon. Friend's words. To sum up, it appears that the workings of the clause, and in particular subsection (1), have not been clearly thought through. Consultation that should probably have happened by now has not happened. All my hon. Friends have some concern about how the clause will be put into practice. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I beg to move amendment No. 59, in page 9, line 29, leave out subsection (2) and insert—

'(2) All determinations are qualifying determinations for the purposes of subsection (1).'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to take amendment No. 138, in page 9, line 30, after 'subsection (1)', insert—

', but shall in any event include determinations relating to:

(a) the suitability of prospective adopters at the adoption panel stage;

(b) the suitability of prospective adopters at the pre-adoption panel stage;

(c) the supply of information concerning the child to any person including the child;

(d) the costs and expenses relating to the adoption process;

(e) the movement of the child between successive foster carers;

(f) the suitability of a child for adoption with particular prospective adoptive parents;

(g) the process of an adoption agency in its dealings with the child and prospective adoptive parents and natural parents, including delays;

(h) the giving or withdrawal of parental consent;

(i) assessing whether the child's views have been adequately considered;

(j) the content of and access to the Adopted Children Register, Adoption Contact Register and the Adoption and Children Act Register;

(k) the process of intercountry adoptions.'.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I am delighted to move the amendment. I should like to start by putting on the record a small point about timing. This is an example of the knives not working well. For reasons that I fully understand, the Government were unable to continue the debate after 5 o'clock on Thursday. However, the

group of clauses is very important. Clause 12 is probably the second or third most important part of the Bill. It covers material—the independent review—that has been central to many of the submissions made to the Committee, but we will run out of time to discuss it at 1 o'clock because we were unable to continue any later on Thursday.

Photo of Henry Bellingham Henry Bellingham Conservative, North West Norfolk

Does my hon. Friend agree that he has just described a disgraceful state of affairs? The Bill is not controversial, but it is highly complicated and we need more time to debate it.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

Order. We have already debated the programme resolution. We are now debating amendments Nos. 59 and 138.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

You are quite right to bring us to order on that, Mrs. Roe. On the whole, the Committee has been good-natured, because all parties support the Bill's aims. I was merely saying that it is a pity that we must cover such an important area so briefly.

During the years that I have been co-chairman of the all-party adoption group, we have heard from many outside groups about the sheer frustration that is felt at the lack of any independent form of review of local authorities' decisions on adoption. It is not quite true to say that there is no form of independent review. In theory, people can seek judicial review, which is always unbelievably expensive and almost always fails, or go to the ombudsman, who, however, has no statutory power. The Opposition welcome the clause, but as it is drafted, without our amendments, it has little in the way of teeth.

The Minister, in replying to the previous group of amendments, implied that there was a chink of light. We had understood from earlier comments made by Ministers in her Department that the independent review, welcome though it was, was likely to be restricted to the question of whether or not a couple got a place on the register, and was unlikely to be extended further. However, the Minister said a moment ago that the Government were still considering what to put in regulations made under clause 12. I hope that the amendments, which are probing in nature but none the less go to the heart of what the Bill is intended to achieve, will give her some good ideas.

Because of the lack of available time, I do not intend to go through amendment No. 138 from paragraphs (a) to (k)—

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

My hon. Friend tempts me. We have a lot of other amendments that we would like to discuss, but I am still tempted to go through the suggestions contained in the amendment, because all they are all sensible. However, I would like to focus on paragraph (f), which concerns the suitability of a placing a child for adoption with particular prospective parents.

I should like to take the Committee back to a point that has been made several times during our deliberations, mostly by Labour Members. The hon.

Member for Stockport (Ms Coffey), who was a member of the Standing Committee that considered the Bill's earlier version, spoke of being sent off, when a social worker, to seek a child who was one eighth of a particular middle eastern ethnic origin. More recently, a similar case arose, which is extremely relevant to the amendment. It was widely publicised in the national press. The identity of the baby—it was a baby when the case began—was concealed for obvious reasons. I shall call the lady by her Christian name of Natasha. She was a single potential adopter of independent means and she could afford to offer the baby a loving home, but she was of mixed race complexion, as was the baby. Her complexion was not identical to the child's, but they were both part European and part middle eastern.

One of the points most frequently made in debates on adoption is that few babies are available and that they should therefore be easy to place. Natasha's attempt to adopt the child took two years of struggle, and she eventually gave up. If the Government were to restrict themselves to the limited measure, welcome though it is, of considering merely whether people such as Natasha should go on the register, such scandalous cases will continue. The scandal was not that Natasha was not allowed to adopt, but that no one else adopted the child. I would exasperate you, Mrs. Roe, if I were to go beyond the amendment and describe the sheer ghastliness of the case, but the child was passed to foster parents who left the country with it but eventually brought the child back, who considered adopting it and then decided against adoption. The case went around in circles.

I draw the Committee's attention to that case, especially in connection with paragraph (f) of the amendment, because for the review mechanism to have teeth it must go beyond determinations of a panel. The Opposition fully recognise that the Government cannot commit themselves to allowing appeals on every aspect of adoption. That would be unrealistic, not least because the social workers tied up in the appeals would be taken from a limited pool of staff, and we would want them to be carrying out their mainstream adoption activities and their other work. We need some sensible guidelines, which would allow appeals in cases such as Natasha's.

I shall focus again on subsection (3)(f). The Government obviously could not allow every potential adoptive parent to appeal. Six or seven couples might all put in for the same child and one could not allow them all to appeal, but there would be nothing wrong in the Government allowing appeals in two circumstances that arise from time to time, but not in most matchings.

I give two examples, but the Government might want to issue better guidelines. First, foster parents might want to adopt a child that they have been fostering for some time but are refused. I am not saying that every foster parent should have the right to adopt the children in their care, but they should have the right to appeal if they are refused after a successful fostering. The Minister will know of the research done by Cardiff university, as it was commissioned by her

Department. One of the university's reports showed that a number of local authorities were so strongly prejudiced against foster parents being allowed to adopt that, as recently as 18 months or two years ago, their policy was never to allow it. Under paragraph (f), that is one circumstance in which they could automatically allow an appeal.

The other example—I return to Natasha's case—is when no one else is allowed to adopt a child. You would rightly restrain me, Mrs. Roe, if I were to return to our debates on clause 1 and the balance between subsection (4)(e) and the provisions on delay, but the amendment addresses that situation clearly. The Government have recognised that delay is inherently bad for a child waiting for adoption. Surely, in a case in which an adopter or adopters have made it on to the panel with or without an appeal, and a child awaiting adoption drifts—in this case, absurdly, a baby, the easiest in theory to adopt—because overzealous social services departments are unable to find parents whom they consider to be an ideal match for the child, there should be an automatic right to appeal. Such people are on the list, having been approved as suitable, but are then told that they are unsuitable although there is nobody else in sight for that child.

I have focused mainly on paragraph (f), because that is the matter about which I feel most strongly. My hon. Friend the Member for Huntingdon has a lot to say about it, and time is needed to discuss the many amendments that we have tabled to this critical clause. However, I should like to speak very briefly about three elements of amendment No. 138.

Paragraph (c) concerns

''the supply of information concerning the child to any person including the child''.

We received some very telling testimony during our evidence-taking sittings, particularly from the Nottingham branch of the Catholic Children's Society. It should be possible, if local authorities refuse to give information to parents, for the parents to be able to appeal against that refusal. I know that the Committee was sympathetic on that point during those sittings.

Similarly, paragraph (e) concerns

''the movement of the child between successive foster carers''.

The worst single case that was put to us in the written testimony was the example of a child who was moved more than 200 times. That example almost beggars belief; it brought people such as me, who have no professional background in this area—unlike many Labour Members, whom I greatly respect—into the arena and led me to help to set up the all-party adoption group. Surely, the clause provides an opportunity for checking up on extraordinarily bad practice where it, sadly, occasionally happens. I commend paragraph (e).

Paragraph (i) is about

''assessing whether the child's views have been adequately considered''.

We have had a long and interesting debate on that matter. The Government were right to resist the amendment to give the child a veto, for reasons that

were very succinctly put by Labour Back Benchers as well as Front Benchers. A child should not have an absolute veto. However, if there is evidence that a child's views have not been adequately considered, there should be scope for an appeal.

We are subject to ridiculously tight time constraints, so I shall not go through all the items listed in amendment No. 138 or discuss amendment No. 59, which says that all determinations should be qualifying determinations. When the Government come to set the regulations, one of the most effective tests of whether they are really serious about making the Act happen—I know that the Ministers do intend to be so—will be the extent to which they allow determinations to be qualifying determinations for the purposes of appeal. I understand why they cannot open the floodgates on everything, but they must be willing to go beyond the mere decision as to whether people get on to the list. Obviously, they will have to do so in a way that sets sensible limits on the absorbing of time into the appeal processes. However, taking paragraph (f) as an example, I have tried to illustrate how the Government might consider aspects that are going wrong and achieve an 80:20 principle. In that way, only some classes would reach appeal, but they would include most of the worst cases and require only a limited time.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon 11:45 am, 18th December 2001

Amendments Nos. 59 and 138 represent alternatives to one another. I agree with my hon. Friend the Member for Canterbury, who said that this was the third most important part of the Bill. Unfortunately, however, the clause is unlikely to retain its importance after the Government have stymied and emasculated it and given it a limited reach.

Amendment No. 139 suggested that changes should be made to keep the doors open to possible alterations to the role of the panel. Amendment No. 59 would simplify a complicated set of rules. The current impact of subsections (1) and (2) is to create a double bar to entry: to qualify, the subject of the appeal to the panel must fall within the clause 9 regulations referred to in subsection (1), and determinations must be qualifying determinations, which are themselves the subject of regulations. The effect of that combination reduces the role of the panel and overly complicates the issue.

The amendment simply suggests that all determinations should be the subject of a possible review before the panel. To understand why that would be the right approach, we need to take a step back and consider why the clause was drafted in the first place. On one hand, the purpose of the Bill is to emphasise the senior importance of the child, who under clause 1 receives paramount status. Hon. Members will recall that, on various occasions, I have queried whether that is actually the case, given the Government's reluctance to give children practical rights in such matters as consent and representation. Under clause 12, the rights of the child are not emphasised as the Bill as a whole suggests should be the case.

The Government have stated their intention that the panel provisions should apply only to parents turned down as suitable to adopt and in relation to release of information. A child may bring to the panel a request for release or non-release of information. Will the Minister confirm that that is the Government's intention? A child could also have access to the panel to have his or her say on whether individuals are suitable to become his or her adoptive parents. Those issues would seem to fall within the scope of issues that the Government want to include, but the application has not been discussed in the context of the children's rights; the explanatory notes refer to parental rights alone. Children should be included, however, and I would like the Minister to give her comments on that.

The wider point that we are making is that restricting access to the panel under clause 9 and the terms of reference to the panel may be a method for considering the actions of the local authority or institution rather than allowing children and adoptive and natural parents to assert their rights. I reiterate that that is a different question to that of which aspects of the Bill should be included as regards access to the panel.

Clause 12 as it stands acts as a method for restricting which matters may come before the panel. Amendment No. 138 suggests specific issues that might be covered by the panel, but amendment No. 59 simply asks why access to the panel should be restricted at all. If a determination has been made to which the child or adoptive or natural parents object, why should they not have a right to review by the panel? Amendment No. 59 suggests that they should have such a right. Such rights to appeal are now commonplace. Is it to be possible to appeal to a panel in respect of a parking ticket but not of most parts of the adoption process?

If the Committee decides to reject amendment No. 59, it will be saying that the Bill should not provide for all decisions to be capable of appeal to the panel. If that is the Committee's decision, my hon. Friends and I suggest that amendment No. 138 be inserted instead. Confidence in the care system is at low ebb for a wide variety of reasons, not all necessarily related to the subject matter of the Bill.

Photo of Jonathan R Shaw Jonathan R Shaw Labour, Chatham and Aylesford

The hon. Gentleman says that confidence in the care system is not at its highest. Does he not think that allowing everyone under the sun to go before the panel, which principally relates to prospective adopters, would cause the kind of delays to which the hon. Member for Canterbury referred? That would hardly be in the best interests of the child.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I thank the hon. Gentleman for enabling me to clarify that point. Amendment No. 59 would not bar the making of regulations on how these matters should be conducted. The regulations could specify limits to the process. I tabled the amendment because adoptive and natural parents should have the right to go to the panel.

Mr. Brazier: To illustrate this argument, I gave a clear example of the regulations that one could make based on paragraph (f) of amendment No. 138, which refers to

''the suitability of a child for adoption with particular prospective adoptive parents''.

If it were the case that no other prospective adoptive parents were allowed, the issue would be not be whether there was a delay but whether the child was adopted. On the question of whether foster parents should be allowed to adopt, a delay might occur if the child was being allocated to other parents. From the child's point of view, adoption by his foster parents would represent an opportunity for continuity rather than another move.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I thank my hon. Friend and agree with him.

I said that confidence in the care system was generally low, but for reasons that are not necessarily related to the subject of the Bill. However, if the Government are to achieve their targets on adoption and achieve a degree of permanence that would increase people's confidence in the system, the system needs to listen to people and must have clarity and transparency. Respect and enthusiasm need to be accorded in greater measure to those who are willing to take children, and we need to take on board what the children want to a greater extent than is suggested.

For those reasons it is important, first, that the Bill should clearly state who has rights to appeal to the panel. Secondly, it should set out the issues on which a person can appeal. Thirdly, the two issues on which the Government would currently allow an appeal to be made—namely prospective adopters being turned down by adoption panels and access to information—are not adequate.

Amendment No. 138 is intended to identify the issues on which my hon. Friends and I believe there should be a right of appeal. Those should be specified in the Bill. We have not seen the regulations to be made under this part of the Bill, but even if we had, that would not be adequate for reasons of transparency and public confidence in the system. If prospective adoptive parents know how they can legitimately question the system before they become involved in the process, they might have more confidence in it. One often hears horror stories of people being bullied or even humiliated by the authorities; some people complain of being ignored or getting lost in the system. The clause presents us with a chance to say, in the Bill, that those people will be listened to and that they are not irrelevant to the process.

If the purpose of the Bill is to give paramount importance to the rights of the child, it is in some ways even more important that adoptive parents—and, I suggest, natural parents—should have a means of checking decisions. It would be unfortunate indeed if the Bill were to give social workers greater scope for ignoring the wishes or aspirations of other parties to

the adoption process. Balance and transparency will be required for the Bill to work; the clause currently shows neither.

In setting out the issues that we think should be included as capable of being raised before the panel, I do not intend to argue points that the Committee has previously determined. However, the Committee's failure to agree many previous Opposition amendments has made it more important that access to the panel should be given, so that confidence in the system can be retained.

Proposed paragraph (a) to clause 12(2) reflects proposals that the Government intend to introduce by way of regulation. The explanatory notes state that such proposals deal with the approval of potential adopters only at the formal stage of the adoption process. That is important because I understand that at that stage of the process only 6 per cent. of applicants are turned down. That is because most potential adoptive parents tend to be weeded out at the informal stage of consideration—the ''counselling-out stage''. It has also been brought to my attention that, as things stand, some 90 per cent. of applicants fail to be approved in the early stages, and that only 10 per cent. go forward to the formal stage.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley 12:00 pm, 18th December 2001

My understanding is that it may well be that only 10 per cent. of those who initially express an interest go forward, but that is because many people express an interest, go to meetings, decide that it is not for them and do not proceed, rather than are weeded out by social workers.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

The hon. Lady makes a fair point, from which I do not dissent. However, representations that I have received make it clear that although 90 per cent. of applicants are not ''counselled out'', a significant percentage are lost in the lead-up to the formal stage. Many people feel that their concerns are ignored during that process, but they are as entitled to have their concerns addressed as someone who reaches the formal stage. If people choose to drop out because they honestly decide that they do not want to become adoptive parents, the procedures involving the panel are irrelevant.

The Committee should seriously consider whether the clause unamended, with no proposals for regulations other than those set out in the explanatory notes, will have much effect. It will have an impact only on the 6 per cent. or small minority who reach the formal stage. The majority of disappointed prospective parents will have no redress. That cannot be right, even under the Government's restricted interpretation of who should be eligible to apply to the panel.

Moreover, viewing the procedures cynically, adoption authorities could knock out more applicants than they currently do at the pre-formal stage, giving even fewer people the right to appeal. Clearly, that is not the purpose of the clause. Proposed paragraph (b) attempts to correct matters by making it clear that all prospective adoptive parents should have the right of appeal, whether or not they have reached any

particular stage of the adoption process. I would be interested to hear from the Minister whether the proposed regulations will cover all stages of the adoption process.

Proposed paragraph (c) provides that the panel should be able to decide on issues relating to

''the supply of information concerning the child to any person including the child''.

In the explanatory notes, the Government propose that there should be a right of appeal to the panel in relation to information defined in clause 54. I assume that that right will apply to adoptive parents, natural parents and children, and possibly to other interested parties. Will the Minister confirm that the regulations will provide for that, and explain why she thinks that it is inappropriate to provide for that basic right in the Bill? That issue is very important, as has been seen in previous discussions in Committee and, presumably, as we shall see in our discussion of clause 54. All parties should know where they stand and what their rights are, and the relevant provisions should be included in the Bill, as paragraph (c) proposes.

Proposed paragraph (d) deals with

''the costs and expenses relating to the adoption process''.

Many parts of the process involve costs. The costs of overseas adoptions are greater, but the panel process also involves costs, to which I shall return when we discuss amendment No. 140. The issue of costs needs to be covered in more detail than the Bill currently provides. For example, does the Minister propose that regulations should provide for some sort of process similar to court taxation, so that costs can be justified if required by one of the parties to the adoption?

Proposed paragraph (e) deals with

''the movement of the child between successive foster carers''.

My hon. Friend the Member for Canterbury spent some time discussing that issue, and there is a lot of overlap with the Children Act 1989. Why should a child who has been moved from pillar to post in the way that he described so well not have the right to bring his case before a panel that could review the fostering arrangements, or ascertain why headway has not been made in relation to his adoption if that is what he wants? The provision might also be relevant to foster carers who are thinking of adopting a child and who want to object to the removal of that child from their care.

Proposed paragraph (f) is the inverse of proposed paragraphs (a) and (b); all three deal with the suitability to each other of the child and the prospective adoptive parents. We have to cater for the unfortunate but not uncommon cases in which prospective adoptive parents do not share the adoption agency's view on whether a particular child is a correct match for them. That might lead to prospective adoptive parents' access to what they regard as more suitable choices being restricted.

Proposed paragraph (g) aims to give general redress to those involved in what is necessarily a bureaucratic process. I emphasise—[Interruption.] Does the hon. Gentleman want to comment?

Mr. Shaw :The hon. Gentleman is criticising the Bill for its bureaucratic processes, but I have never heard of a more bureaucratic process than the one proposed in the amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

The hon. Gentleman might think so, but he will have heard me say that the process is ''necessarily'' a bureaucratic one. It is not possible to describe the process of adoption, which is purely a creation of statute, as anything other than bureaucratic. We aim to make that bureaucracy work as well as possible. We want a system that caters for the needs of all parties and speeds up the process.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I acknowledge the hon. Gentleman's sincerity, but to describe adoption as a bureaucratic process is wrong. It is about understanding, sympathy, building relationships and working with people. My hon. Friend the Member for Sheffield, Heeley (Ms Munn) says it is an art; I think it is a craft. In any case, it is far beyond a bureaucratic process and we should not describe it as such.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I take the hon. Gentleman's point. I hope that having heard several of my contributions, he appreciates that I do not see the adoption process—from the point of view of the adoptive parents, the child or the natural parents—as a bureaucratic process. However, surely he recognises that the mechanics of adoption involve bureaucracy; that is all that I mean.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

My hon. Friend has touched a raw nerve among the professionals on the Labour Benches. Of course, adoption is a bureaucratic process as it stands: were it not, we would not be considering a Bill to make it less bureaucratic. The fact that the average time for adoption has fallen from two years and 10 months to all of two years and nine months suggests to any right-minded person that the process is excessively bureaucratic and that we need to bring those times down. Notwithstanding all the sensitivities involved in dealing with individual cases, to which the hon. Member for Lancaster and Wyre (Mr. Dawson) refers, it is bureaucratic. The Bill aims to make it less so.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I thank my hon. Friend for that clarification and agree with him.

That being so, the adoption authorities should be aware that if they slow things down, if they do not allocate adequate resources to the process, or if they do not proceed as envisaged under the Bill, we will be able to call them to account. However, that should be done not in an annual report of the sort that notes that X authority takes on average 20 days longer than Y authority to complete some part of the process, because that would be meaningless to the people caught up in the system. It may be a bureaucratic process, but our aim in the amendment is more to achieve a better appreciation of the human aspects of the process, than to provide individuals a right to cut through the bureaucracy. The people caught up in the system should have an outlet through which to voice their concerns. That is the purpose of the amendments.

Proposed paragraph (h) deals with parental consent. We have debated the matter and I shall not go over old ground. I do not need to remind the Committee of the complexity of the issues, but I note that there should be a straightforward forum such as the panel that can review the circumstances surrounding consent if that is required.

Proposed paragraph (i) goes to the heart of the Bill because it would maintain the paramountcy of the interests of the child. The Committee will know that I have argued on several occasions that the Bill needs to give children the right to consent to their adoption. I acknowledge that that suggestion has been repeatedly beaten down by Labour Members, but that makes it more, not less important that the Bill provides specifically for children to have the right to take their concerns to the panel. They should have the chance to say that the process has not adequately considered their views. We have heard about people's right to seek judicial review, but that route is all but impossible for children to take given their age and financial standing. The most appropriate forum for them would be a relatively informal panel hearing.

Proposed paragraph (j) deals with the contents of and access to the two existing registers and the new register to be set up under the Bill. There will be circumstances in which one party or another feels that too much or too little information has been included or not included in the registers, or that the information is not accurate. Are regulations are being prepared to deal with such situations? The panel would be a good forum for such discussions, whereas dragging such cases through the courts would surely be inappropriate.

Proposed paragraph (k) deals with the process of intercountry adoptions. The issues surrounding such adoptions have been discussed by the Committee at some length, and I am sure that hon. Members agree that they are often complicated. We have heard that prospective adoptive parents sometimes feel that their case has been made overcomplicated by the relevant adoption agency, or that their applications have been put to the bottom of the pile for some reason. It is right that such people should have the right of access to the panel.

I have attempted to explain to the Committee that the amendment would give the various parties to adoption the right to seek redress through the relatively informal and cheap mechanism of the panels. It would be helpful if the Minister were to give the Committee some idea of the difference in cost between access to such a panel and access to judicial review. I assume that the difference is massive.

The amendment is designed to give people greater confidence in the system. People will be encouraged to adopt if they are able to have confidence in a process that characterised by transparency, because they will know that their concerns about any cases in which they feel that they have been dealt with unfairly will be listened to. That is why I commend the amendments.

Jacqui Smith: Opposition Members, despite complaining about the amount of time available for consideration of the clauses, have taken us on a considerable detour around a range of issues, some of which we have previously debated, some of which will be discussed in relation to later clauses, and some of which are only tangentially related to adoption and children and the principles of the Bill.

The argument enshrined in the amendments comes down to whether the Government are right in their intention to focus in the first instance on the two key issues of the ability of prospective adopters to get a review of a decision to turn them down, and the ability to have adoption agency decisions relating to access to information independently reviewed. I believe that the Government are right to focus their attentions on those issues.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons) 12:15 pm, 18th December 2001

Is the Minister saying that that rules out appeals on individual matchings? She said that couples who have been turned down would be able to appeal, but I presume that by that that she means instances in which they have been turned down for a place on the register rather than for a particular matching with a child. Will she clarify that point?

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

I am going to talk about matches. The hon. Gentleman misunderstands which determination would be reviewed. The review will not deal with the determination on whether a couple should be placed on the national adoption register, but with the approval of a couple as prospective adopters. That approval will be a prerequisite to a person's inclusion in the national register.

The argument is about whether the Government should focus on certain important issues—which, as hon. Members have rightly said, we need to tackle—relating to the independent review process, or whether we should widen significantly, and in some ways inappropriately, the extent to which the independent review mechanism is to be used.

In response to the hon. Member for Huntingdon, I would like to reiterate the view that in legal terms the matters to be reviewed do not need to come under the clause 9 regulations. Any determination made by an adoption agency could in theory—should the consultation suggest that it is appropriate—be eligible for review under the independent review mechanism. The question we need to ask is whether that is appropriate and whether it will deliver the objectives that we have set for the independent review mechanism. It is right to focus our action on certain areas.

The hon. Member for Canterbury made a range of points relating to some of the paragraphs in the amendment. Proposed paragraph (f) deals with

''the suitability of a child for adoption with particular prospective adoptive parents''.

I am sympathetic to the cases he raised, but the independent review mechanism is not the appropriate place to consider that issue. In the national adoption standards, we have already stated that children who need adoption should not be left waiting indefinitely

for a perfect family, and we discussed at length in relation to clause 1(3) the need to ensure that there is no delay in the process.

The hon. Gentleman asked about foster parents deprived of the ability to adopt. If a foster parent applied to be approved as an adopter for the child that he had fostered and was turned down, he could use the process that we are setting up to have the decision reviewed.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

The Minister has moved on from the point about couples turned down for a specific matching when no one else is available. She says that there are guidelines, which I accept, but the central point is that there is no other recourse for such a couple. If, as in the case of Natasha, they see a two and a half-year-old baby for whom there is still no adopter in sight, where else but in the appeal mechanism could they find new recourse? No one could argue that the mechanism is to address delay, as the delay is all in the care system.

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

I was trying to make the point that the recourse—the lever—should be focused on the interests of the child. The national adoption standards and clause 1 ensure that the sort of delay that the hon. Gentleman suggests has occurred in a specific child's adoption will be considered unacceptable and avoided. I will go so far as to say that the appropriateness of individual parents having recourse to review in respect of an individual match might be the subject of consideration when we consider the regulations. It is important to focus the independent review mechanism where it is most likely to have an effect.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I agree with my hon. Friend. It is important that the mechanism for reviewing the needs, best interests and future of the child remains the statutory review process, but should it not be reinforced?

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

My hon. Friend makes an excellent point. Opposition Members seem to want the independent review mechanism to be a panacea for all their perceived difficulties with the care system. The Government are taking a range of other actions to overcome some of those difficulties, so it is not appropriate to use the independent review mechanism in that respect.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

The Bill contains clause after clause based on the paramountcy of the rights of the child, which I support whole-heartedly. Conservative Members are saying that it is important that, within the context of such a Bill, other parties to the adoption process should have some redress. The more we slant the Bill towards the rights of the child—I do not argue with that—the more important it is to give other parties some means of redress. The Minister spoke about a recipe for delays, but in most instances, the people going to the panel would be those who felt that they had been subject to delays and they would regard the panel as a means of resolving such problems.

Jacqui Smith: My hon. Friend the Member for Chatham and Aylesford (Mr. Shaw) pointed out that giving the independent review mechanism a wide range of responsibilities was not the way to reduce delays. As the hon. Member for Canterbury said, it may become a way to siphon people and attention away from the important issue of getting children adopted as quickly as possible by the most appropriate families and towards a review process that should not focus on those issues.

The amendment proposes a new paragraph (c) to clause 12(2), which reads:

''the supply of information concerning the child to any person including the child''.

As I said, we intend to use the independent review mechanism to review adoption agency determinations similar to those mentioned in that provision. We shall discuss that in more detail in later sittings, perhaps this afternoon. To respond to the question about whether the child could appeal under the access to information provisions, our view is that there is no reason why a child who has been refused access to information and who is of a sufficient age and understanding should not appeal to the review panel on the limited basis that we shall discuss later.

On proposed paragraph (e), the hon. Member for Canterbury suggested that we should somehow use the review process to deal with what I agree is an unacceptable situation—that of a child having no stability in his placement. I would argue both that that is not an adoption agency determination and that the measures that the Government are taking in monitoring placement stability and in prioritising it in the quality protects grant are more effective in achieving our shared objective than the independent review process would be.

The hon. Members for Huntingdon and for Canterbury made much of the importance of proposed paragraph (i),

''assessing whether the child's views have been adequately considered'', but it is unclear. The adoption agency will not make a single determination as to whether the child's views have been adequately considered. The matter is covered by clause 1(4)(a), which requires the adoption agency and the court to have regard to the child's ascertainable wishes and feelings throughout the process of a decision being reached on his adoption.

My other problem with the amendments is that they seem to seek to sidetrack the complaints procedure that is already in place. Adoption is a mainstream social services function and the majority of complaints about local authority adoption services will be most appropriately dealt with through the existing social services complaints procedure. As I have told the Committee, we are improving the procedure. We shall discuss the underpinning of that improvement through clause 111. Voluntary adoption agencies also have a complaints procedure as part of the inspection and approval process, and that will continue.

As I have explained, the powers in the Bill enable the appropriate Minister to establish an independent review mechanism, and they are flexible enough to allow development of the procedure in future. The Government are right to focus the independent review mechanism on the areas that have attracted the most concern and where it can make the greatest difference. For that reason, I ask Committee members not to support the amendments.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons) 12:30 pm, 18th December 2001

I am not entirely happy with parts of the Minister's answer. Her opening suggestion that we had cast the debate too wide was unfair. The appeals mechanism is often the only way for people in the system, including parents trying to adopt and sometimes the children themselves, to see that they are getting out of it—in the interests of the child—what the Minister and all Committee members want them to.

The Minister offered half a concession: she said that individual matching is something that the Government could consider. I hope that she will consider it, not in all cases but in such narrowly drawn instances as I have tried to suggest—and which my hon. Friends and I support—particularly where foster parents are trying to adopt and no other parents are concerned. She also stressed that a category would be included under the demanding of information, about which Conservative Members feel strongly. Therefore, on the basis that we approve of the clause overall—I was the first person to trumpet in public the welcome fact that there could be an independent appeal for some matters —and in the hope that the Minister really will consider individual matching, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

Amendment No. 82 is relatively straightforward. There must be some sort of provision to deal with the formation of the panel and with the relevant procedures. As I have said, the panel should be established in the Bill, and if the panel is brought into being, the regulations made under clause 12 must be put into practice—hence the reasoning behind the amendment.

On amendment No. 83, we have already discussed what should count as a qualifying determination, and whether qualifying determinations should be created pursuant to regulations or established in the Bill. The Committee decided that it should be a matter for regulation, but subsection (3), which relates to the panel procedure, does not include any provision for time limits that should apply when a person wants to refer an issue to the panel. Furthermore, without the amendment, nothing in the stated procedure requires that regulations—regulations that we have not yet seen—should specify any time limits.

Given the need for fairness and transparency to encourage adoption and speed up the process, it would be appropriate to all parties to include a provision on time limits: for example, potential adoptive parents who want to complain to the panel will want to know that their appeal will be heard within a set period; conversely, we must also appreciate that the adoption

agency will want to know that its decisions are final and binding and that it will not have the threat of an appeal hanging over it for all time. For those reasons, it would be appropriate to include time limits as the amendment proposes.

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

Clause 12(3), as the hon. Gentleman says, will enable the appropriate Minister to make regulations covering the duties and powers of the review panel, its administration and procedures, the appointment of panel members, the payment of expenses to panel members, the duty of adoption agencies in connection with reviews, and the monitoring of reviews. The wording of amendment No. 82 is unsatisfactory because it would oblige the appropriate Minister in establishing the independent review mechanism to make regulations in respect of all the matters that I have just described.

We have promised to consult stakeholders in the field of adoption on the detail of how the independent review mechanism will operate, and following that consultation to make regulations to establish the review mechanism. We will introduce appropriate regulations if we decide, as a result of consultation, that they are necessary in relation to any of the areas covered by subsection 3(a) to (f). However, we may conclude as a result of consultation that regulations in all those areas are unnecessary or not in the interests of the users of the independent review mechanism. I regard that as unlikely, but the problem with the amendment is that it would require the Government to make regulations even doing so was inappropriate. For that reason, we cannot accept the amendment.

Amendment No. 83 would amend clause 12(3) to require that the regulations may establish maximum time limits for convening a review panel, according to the type of determination being reviewed. I am not unsympathetic to the amendment, but it is unnecessary because subsection (3)(a) enables the appropriate Minister to make regulations relating to the duties and powers of a review panel, and subsection (3)(b) enables the making of regulations to provide for administration and procedures. Those powers may be used to establish maximum time limits for convening a review panel.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

Is it the Government's intention to set time limits?

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

It is the Government's intention to consult on the basis on which the review should work. I believe that subsection (3)(a) and (b) contains the power to establish time limits. It is appropriate to establish in regulations or in another form the time limits that should be maintained in the independent review process. We shall consult on and be able to use the powers in subsection (3)(a) and (b) to make regulations if it is appropriate to establish maximum time limits. On that basis, I hope that the hon. Gentleman will feel able to withdraw his amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I thank the Minister for her clarifications. I shall seek leave to withdraw the amendment, but I note that we will debate under amendment No. 82 whether there should be a panel. In

fact, we have had that debate. I suggested that the Bill should say that there must be a panel, but the Minister successfully argued that it does not have to say that. I cannot see how a panel could be constituted without regulations, which is why I thought that the wording should be ''shall'' rather than ''may'', but I accept the Minister's explanation.

As for amendment No. 83, I thank the Minister for making it clear that powers exist to establish time limits. It would have been nice to have confirmation that the Government will establish those time limits, even if they intend to consult in the meantime to determine their exact nature. None the less, in view of the Minister's comments, 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. 49, in page 9, line 43, after second 'an', insert 'independent'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss amendment No. 50, in page 9, line 44, after second 'the', insert 'independent'.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The amendments are probing amendments relating to arrangements that the Minister may make with an organisation under which the panel's functions are performed. We merely wish to explore the independence of the organisation asked to perform that role. It is essential that anyone asked to make a determination for the panel is at arm's length from those who have an interest in the proceedings. Neither the Bill nor the explanatory notes make it clear what arrangements will be made in that respect. Will the Minister assure us of the organisation's independence?

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

Subsection (4) enables the appropriate Minister to delegate the operation of the independent review mechanism to an organisation, which will help to ensure the independence of the review mechanism. I cannot say to which organisation that is likely to be delegated—that decision will be taken further down the track. However, if the hon. Gentleman merely seeks reassurance that the clear objective is to ensure that the review mechanism is independent, I can give him that assurance. The objectives that we have set down would not be fulfilled were that not the case. Subsection (8) provides that the organisation may be a ''public body'' or a ''private or voluntary organisation'', and subsection (6) provides that the appropriate Minister may make payments to the organisation running the review mechanism.

I hope that the hon. Gentleman understands that his amendments are unnecessary. In the White Paper, we promised to develop the independent review mechanism and explained that an independent body would operate it. The clause gives us the ability to achieve that objective and delegate the operation of the independent review mechanism to an independent body to meet the White Paper commitment. That is clearly the Government's intention.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 12:45 pm, 18th December 2001

As I said, this is a probing amendment. With so much of the consultation yet to come, the cart is often put before the horse and we discuss matters the full details of which neither we nor the Minister know. However, it was worth putting on record that the independence of the organisation is a key factor, and we look forward to the Minister assuring us of that when the final details come out in the wash. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I beg to move amendment No. 140, in page 10, line 11, at end add—

'(9) Subject to subsection (10), where, on application to a panel constituted by the appropriate Minister under this Act, the panel makes or refuses to make a decision, an appeal shall lie to the High Court.

(10) Where an application is made to a panel constituted by the appropriate Minister under this Act, and the panel considers that the matter is one which would more conveniently be dealt with by the High Court, the panel shall refuse to make a decision on the matter, and in that case no appeal shall lie to the High Court.

(11) In circumstances where an application to a panel concerns a child, then that child shall be a party to the proceedings of the panel unless the child has consented to waive his or her rights to be a party.

(12) Every person who is to be directly relevant to or affected by the decision of a panel shall be a party to the proceedings of the panel unless such a person has consented to waive his or her right to be a party.

(13) A panel shall be convened to review a qualifying determination not later than three months following a request by a person who was directly relevant or affected to or by the decision of the panel.

(14) The reasonable costs and expenses of the application to the panel or of any appeal to the High Court of the child and any organisation who is a party to such proceedings shall be paid by the appropriate Government Department.

(15) The reasonable costs and expenses of a successful application to the panel or of any successful appeal to the High Court of any person, other than a person set out in subsection (14), shall be paid by the appropriate Government Department.'.

Many clauses—not all—restate provisions that have been in force for some time under the Adoption Act 1976, but several new procedures and issues are introduced by the Bill, including the paramountcy of the child's interests, the concept of special guardianship and the panel itself. As a result, plenty of room will be left for legal interpretation after the provisions are brought into operation.

The important point that I want to consider is the composition of the panel. The hon. Member for Meirionnydd Nant Conwy addressed that point, but I am not sure that the Minister answered the question of who would serve on the panel. I very much doubt that it will comprise a selection of High Court judges. Will it comprise a selection of justices of the peace who practise family law, a collection of retired social workers, or a mixture of all those people? The constitution of the panel will be important to the way in which the panel will work and the extent to which the legal side of the panel can be applied in practice.

It is highly likely that issues will come before the panel that are of a technical or legal nature and that leave a lot of room for legal interpretation. In such cases, applicants to the panel should have a right to appeal to the High Court. Proposed subsection (10) regards the matter from the other side, in that the panel might feel that an issue would be more appropriately dealt with by court judgment than by itself. Proposed subsections (9) and (10) would provide for that.

Subsection (11) returns us to the heart of the Bill. The child should come first, but the detail of the clause belies that intention and safeguards for the child are relatively few. The constitution of the panel should in some way involve children, and in all cases children should have the right to be party to the proceedings unless they have decided to waive their rights to representation. Subsection (12) takes that concept further. Although a child may always be interested in some way, that may not necessarily be the case for another party: for instance, a prospective adopter may want to appeal against not being allowed to adopt.

Photo of Kevin Brennan Kevin Brennan Labour, Cardiff West

Does the hon. Gentleman not accept that introducing such a procedure would delay the process even more, and is he not confusing a review of a decision and a legal appeal against it, which is not envisaged in the clause?

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

The proposed new subsections deal with both the panel stage and the High Court stage. However, the hon. Gentleman makes an important point. The Bill should highlight the paramountcy of the child, but the intention of clause 1 is not applied in the nitty-gritty of the clause; I have said time and again that its mechanics do not work in practice, and that is what I am highlighting now. For instance, if a prospective adopter wishes to appeal against not being allowed to adopt, the child should have the right to be a party to the hearing. That should not be so for the natural parents.

Photo of Jonathan R Shaw Jonathan R Shaw Labour, Chatham and Aylesford

The hon. Gentleman has referred time and again to consulting the child, and under this clause he has spoken of the child consenting to waive his or her right to be a party to proceedings. The average age of children when they are adopted is three or four; rarely are they as old as 13, 14 or 15 when, under the Gillick principle, they would be able to determine a decision for themselves. As the Minister said, the Bill already deals with involving children. The idea that children whose average age is three they should be consulted left, right and centre is ridiculous. It would be time consuming and build in further delay.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I heartily thank the hon. Gentleman for that intervention. He makes an important point. How can a child be represented? The answer is that the child may deserve legal representation. I do not agree with him that a two, three or four-year-old child would not have an opinion.

Mr. Shaw indicated dissent.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I can speak only from my own experience, and I assure the hon. Gentleman that three-year-old children often have a view on what they

want. Furthermore, I suggest, but not from experience, that a three-year-old child who has been abused will certainly have an opinion.

Photo of Jonathan R Shaw Jonathan R Shaw Labour, Chatham and Aylesford

Does the hon. Gentleman not agree that the point that he makes about two and three-year-olds is absolute rubbish?

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I cannot agree with that.

I have discussed time limits under previous amendments. I did not specify a particular period in previous amendments, but in amendment No. 140 I have taken the concept slightly further and suggested a period of three months. The Minister has kindly discussed the issue, but I would be interested in her opinion on such a time limit. Most issues that go to court have time limits, except for crime. I suggest that the same should apply in this instance, which would provide fairness for all parties.

Proposed subsections (14) and (15) deal with the cost of the meetings of the panels and any appeals to the High Court. Proposed subsection (14) suggests that the Government should pay the reasonable costs of the child and the adoption agency in all cases. Many adoption organisations and agencies have contacted us to say that the concept of appeal is fair, but the Government need to realise that that needs funding. Some organisations think that court or panel cases could bankrupt them.

Those organisations are also concerned that paying for the legal costs of court cases is hardly the best way to use their often hard-raised charitable funds, or an attractive way to encourage fundraisers to contribute further. That is a problem for charities. How does the Minister propose that the costs of panels be apportioned for charities and children? When any other person, say a prospective adoptive parent, wins their case at the panel or in the High Court as proposed, the Government should pay the reasonable costs of the opponent, too. That is the purpose of proposed subsection (15).

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)

I understand why the amendment was moved, and it was for the best of reasons, but there are problems. The hon. Member for Cardiff, West (Kevin Brennan) has pointed out the difference between a review and an appeal. It would be unrealistic for the High Court to second-guess every panel decision. If the provisions were limited to a point of law, misdirection or conduct, I would be able to accept them fully, but the High Court bench is already hugely overburdened, despite the recent appointment of several new High Court judges to deal with human rights legislation. The machinery is not there.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I understand the hon. Gentleman' concerns about the reasons for taking a case to the High Court, but surely he is not suggesting that the High Court being too busy to deal with a case is a good reason not to take the case to it?

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 amendment appears to be a carte blanche for a second-guessing operation by the High Court. If I understood the Minister correctly, there is a right to judicial review in any event, so the point has

been dealt with. I understand and appreciate the reason for the amendment, and applaud the fact that the rights of the child appear to be paramount, although in a slightly misguided manner—I am not sure what consent one could receive from a child aged one—but, with great respect, I say that the amendment is misplaced.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I would not have spoken to the amendment but for the case of a couple I met in my surgery on Friday. A couple who had hoped to adopt a brother and sister came to me with a tale that neatly fits into our proceedings and demonstrates why I hope that the Minister can consider the amendment.

The prospective adoptive parents lived in my local authority area, but another local authority some distance away had placed two children with them. One child was disturbed, but the couple had managed to cope. However, their way of dealing with the brother

and sister in their family environment did not meet the game plan of the social services department that had placed the child. That department had therefore taken the children back, and the siblings had been through a series of foster carers who had all met the same problems—

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

Question, That the amendment be made, put and negatived.

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

Clauses 12 to 16, 115 to 119 and 122 ordered to stand part of the Bill.

Adjourned at One o'clock till this day at half-past Four o'clock.

Roe, Mrs. Marion (

Chairman

Bellingham, Mr.

Blackman, Liz

Brazier, Mr.

Brennan, Kevin

Dawson, Mr.

Djanogly, Mr.

Fitzpatrick, Jim

Gidley, Sandra

Llwyd, Mr.

Loughton, Tim

Love, Mr.

Moran, Margaret

Munn, Ms

Shaw, Mr.

Smith, Jacqui

Walter, Mr.

Winterton, Ms Rosie