Clause 129 - General interpretation, etc.

Adoption and Children Bill – in a Public Bill Committee at 3:15 pm on 17th January 2002.

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Photo of Robert Walter Robert Walter Conservative, North Dorset 3:15 pm, 17th January 2002

I beg to move amendment No. 271, in page 73, line 8, leave out subsection (2) and insert—

'(2) In determining for the purposes of this Act with what person, or where a child's home is or a child is placed—

(a) any absence of the child at a hospital or boarding school and any other temporary absence, and

(b) where the applicants for adoption are a married couple, any absence of one applicant at a hospital, or absence from home due to work or family commitments, or any other temporary absence

is to be disregarded.'.

I live in hope that the amendment might, at least in principle, be accepted on the ground that it is eminently sensible, if somewhat technical. I was slightly concerned that it might be too technical because, when I looked for clause 129 in the explanatory notes, I found that it seems to be the only clause not referred to.

Clause 129 is about definitions. The amendment would insert a provision that the absence of a child at a hospital or boarding school, or any other temporary absence should be ''disregarded''. It occurs to me that the converse would be to disregard the absence of one of the parents if it was for a valid reason. To explain that, one must consider the relevant clauses.

Clause 41 is about children living with adopters before the application. Subsection (2) states that if a child is placed for adoption with a married couple, the child has to live with

''one or both of them at all times during the period of ten weeks preceding the application.''

A court would say that it provides for one or both of them, not that it must be both of them. Clause 41 then goes on to deal with the step-parent, who is obviously an individual; but when it comes to local authority foster parents, it states that

''the child must have had his home with the applicants at all times during the period of one year preceding the application.''

It does not say whether one of those applicants might legitimately be absent for that period.

Clause 47 is about applications for adoption. Subsection (3) states:

''The second condition is that both spouses (in the case of an application under section 48) or the applicant (in the case of an application under section 49) have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.''

My point is that one spouse might legitimately have had reason not to be habitually resident during the whole period. One of them might have been on holiday and taken to hospital in another country, or been abroad on business.

The provisions on foster parents and clause 47(3) could be seen to provide a loophole. It is possible that someone could mischievously argue that, if the applicants are a married couple and one of them was not with the child for the whole of the qualifying period, it should somehow negate the process. That is why I suggest extending clause 129 to talk about not only disregarding the absence of the child, but the absence of one partner of a marriage, and that such an absence should not undermine the time commitment that is required in other clauses. Such an absence should be capable of being disregarded when determining the residence of the child for the qualifying period.

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

Perhaps I should reassure hon. Members that the lack of explanatory notes on clause 129 was not the result of my officials or myself having forgotten it. We thought it unnecessary to include the clause in the explanatory notes because it was self-explanatory.

Clause 129 is relatively straightforward. It is intended to provide a general interpretation of the terms used in the Bill. As the hon. Gentleman has pointed out, subsection (2) makes it clear that for the purposes of determining a child's home or where or with whom a child is placed, any temporary absence of the child, such as at a hospital or boarding school, is to be disregarded.

The amendment would add to clause 129 a paragraph providing that in the case of a married couple applying to adopt, the temporary absence of one of the two people should be disregarded. It is unnecessary to establish the presence of both adopters, or prospective adopters, in the home for the purpose of the Bill, so the amendment is not needed. In the case of an adoption application by a married couple under

clause 41, which, hon. Members will remember, provides for non-agency cases such as relative or some foster care adoptions, the child must have had his home with one or both of the adopters for specified periods preceding the application. To that extent, the temporary absence of one of the adopters is irrelevant.

The hon. Gentleman referred to clause 47(3), but only one of the conditions in clause 47 must be met. The first, in clause 47(2), is that one spouse should be domiciled here. The other condition requires the habitual residence of both spouses. If one were abroad, the other spouse would satisfy the first condition. Furthermore, when assessing the suitability of prospective adopters, the adoption agency considers the circumstances of the family as a whole. Factors such as the absence from home of one prospective adopter would, obviously, be considered along with the rest of the family's circumstances.

Photo of Robert Walter Robert Walter Conservative, North Dorset

The Minister has answered one of my points, and I answered another myself—the one about a child being placed for adoption in the normal way by an adoption agency. However, unless she was about to come to it, and I sensed that she was not, she failed to answer the point about clause 41(4). It states:

''If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.''

No exception is made with respect to one or other of the applicants. The reference is absolutely to ''the applicants''—the foster parents—and ''at all times''.

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

The arguments that we used on a previous amendment, dealing with the 10-week limit for married couples, cover that point to some extent. While I understand that the hon. Gentleman is concerned that someone could try to throw a legal spanner in the works, I think that my point about assessment was the important one. However, I undertake to explain to the hon. Gentleman, perhaps in writing, why his amendment is not necessary, and to reassure him on the legal point about foster parents and the relevant period.

Photo of Robert Walter Robert Walter Conservative, North Dorset

I thank the Minister. Of course, if I am not reassured by what the Minister tells me later, we may be able to revisit the matter. In the light of what has been said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 129 ordered to stand part of the Bill.

Clauses 130 to 132 ordered to stand part of the Bill.

Schedule 6 agreed to.