Clause 126 - Rules of procedure

Adoption and Children Bill – in a Public Bill Committee at 2:45 pm on 17 January 2002.

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Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 2:45, 17 January 2002

I beg to move amendment No. 11, in page 70, line 21, at end insert—

'( ) In the case of an application for a placement order, for the variation or revocation of such an order, or for an adoption order, the rules must require that the court or adoption agency make available to the legal representatives of the parent or guardian of any child subject to such an application all records used by the court or adoption agency in relation to that proceeding.'.

The amendment stands in the name of my hon. Friend the Member for Isle of Wight (Mr. Turner), who has shown an extra-mural interest in the Committee by tabling amendments and a new clause of great merit. This is a probing amendment that seeks to establish balance and fairness in the legal processes connected with adoption. The amendment would add a condition to the procedure for the conduct of court cases.

The point of the amendment is to make it clear that all the information that is made available to the court should be made available to the legal representatives of the child's natural parents, even if such information is not, for whatever reasons decided by the court, made available to the parents. That is self-explanatory. This is an important stage in the adoption process, at which the parent or guardian may be on the verge of relinquishing control of or responsibility for the child. It is even more important than usual that every party to those proceedings should feel that they have had a full and fair opportunity to make their case, and that all the relevant information has been available to them, hence the amendment's stipulation

that those documents should be made available, at the very least, to the legal representatives of the parent or guardian.

I said that this was a probing amendment. It may be that what it deals with is already catered for elsewhere in the Bill, but it seems to me to make a sensible addition to the procedures that the Bill introduces.

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

I understand the intentions behind the amendment. I hope that I will be able to provide the assurances that the hon. Member for East Worthing and Shoreham needs, and that he will convey my assurances to the hon. Member for Isle of Wight.

Birth parents are parties to applications for an adoption order. They will be notified that an application for such an order has been lodged with the court, and should have the papers, in accordance with the rules. Where an application to dispense with parental consent to adoption has been made, the statement of facts on which the applicants intend to rely is prepared by the adoption agency and will also be sent to the birth parents.

The schedule 2 reports prepared by the agency in agency cases and by the local authority in non-agency cases, in accordance with adoption rules, are confidential. However, the courts have a discretion to allow birth parents or their legal representatives to see any part of a schedule 2 report prepared by the adoption agency, or Children and Family Court Advisory and Support Service reports that refer to that individual, when the circumstances of the individual case make it appropriate.

Birth parents, or any other party to the proceedings, may apply to the court for the disclosure of other information. In such circumstances, the court will decide whether information in the reports needs to be anonymised—I am sorry; I should have said made anonymous—before disclosure to ensure confidentiality. In doing so, it will always take into account the best interests of the child.

This amendment would require court rules to provide for the records used by courts or adoption agencies in adoption and placement proceedings to be sent to the legal representatives of the birth parents. ''Records'' is a wide term, and could include the records kept by the adoption agency in connection with the child, the birth parents and the prospective adopters. In determining whether to disclose information, it is necessary for the court to strike a balance between the interests and rights of the birth parents, and the interests and rights of the adopters and the child. Releasing that information automatically may pose a serious threat to the child's placement with the adopters. It may also discourage more adopters from coming forward to adopt, due to concerns about their rights to privacy.

The practice of disclosing documents to legal representatives only is seen by many solicitors and barristers as unacceptable. It places the lawyers in a difficult position to have information that they may not show their clients. Many lawyers believe that it is

incompatible with their professional duties and will not accept it.

The Government intend to make rules under clause 126 to govern the disclosure of information in placement and adoption proceedings. Those rules will be similar to the current rules but will reflect the differences in the Bill, which we have already debated, and will be consulted on before they are made.

In the light of those assurances and my explanation of why it would be inappropriate to have blanket disclosure in such cases, I hope that the hon. Member for East Worthing and Shoreham will feel able to withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am grateful to the Minister. I said that it was a probing amendment. I shall convey what the Minister has said to my hon. Friend the Member for Isle of Wight, although I am sure that he will be keen to log on to the internet as soon as he can, if he does not wait for Hansard, to read what has been said about his amendment.

The Minister made some useful points. The courts have discretion to show the reports when appropriate, although in some cases they should not be released automatically. There are obvious practical difficulties. As she said, lawyers do not wish to receive information that they cannot pass on to their clients. Other than the quite outrageous re-use of the word ''anonymised''—the Minister duly apologised for using it—it was a highly satisfactory response to the amendment. 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 amendment No. 243, in page 70, line 24, after '(4)', insert 'and the child'.

This is yet another probing amendment. I wish to highlight the voice of the child. I seek clarification on how the rules of procedure can ensure the full and proper representation of children in placement and adoption proceedings. I admit to a certain surprise that the hon. Member for Huntingdon (Mr. Djanogly) did not pre-empt me on this, because he and outside agencies have often raised concerns about the voice of the child in the Bill.

Despite the declared aim to put the child at the centre of the Bill, this legislation does not ensure that the abuse of children is given the fullest possible weight. That is especially important given that adoption is an irrevocable process. Clause 1(4)(a) provides that the court or the adoption agency must have regard to a child's ascertainable wishes and feelings. It is right that they should be considered—according to the child's age and understanding—but, despite the intention, it is disappointing that the child's voice is not given more prominence. It is essential that children's wishes and feelings are given the fullest possible weight, bearing in mind the previously mentioned parameters. The Bill should, therefore, set out a clear mechanism to ensure that their views are fully and properly represented to the court in all cases.

That should happen independently of the adoption agency, the applicants and the birth parents, if that proves necessary.

Article 6 of the European convention on human rights and article 12 of the UN convention on the rights of the child are relevant to the rights and representation of children. Article 12 states:

''State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child . . . For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.''

The explanatory notes state that

''the child shall automatically be a party to proceedings in placement order cases, and shall be able to apply to the court for leave to be made a party to adoption proceedings.''

Many people believe that consultation on the rules is necessary at the earliest opportunity, and it would be helpful if the Minister could give a little more detail about their proposed content, the timetable for consultation and—this is probably beyond hope—whether the timetable will allow for consideration of the rules during the passage of the Bill.

Adoption should proceed on the basis of the adoption agency and the court making sufficient and thorough investigations. It is also important that a children's guardian is appointed to investigate the child's welfare in every adoption case, with an independent check being made of social work practice. If there were a problem with the proposed adoption in the child's view, the children's guardian would alert the court, as appropriate. Every child would have an independent voice through their guardian, but older children could also have an input into the proceedings.

I apologise that I could not be here to move an earlier amendment, but I had a commitment that I could not get out of.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I am sure that hon. Members were delighted.

The Bill could be amended to require that placement proceedings were closely linked to care proceedings and that adoption proceedings were specified proceedings under section 41 of the Children Act 1989. In specified proceedings, the courts appoint a CAFCASS officer for the child, unless they are satisfied that that it is not necessary to safeguard the child's interests. Such a provision would ensure that the child's wishes and feelings were reported to the court independently, rather than by the adoption agency, the birth family or the applicants. That would ensure proper investigation and a clear presentation of the child's views and welfare.

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

Clause 126 enables the Lord Chancellor to make rules on matters of adoption

procedure. The amendment would require those rules to provide that the child be notified of the date and place of a hearing in relation to an application for a placement order, the variation or revocation of a placement order and an adoption order. It would also require the rules to provide that the child need not attend the hearing, unless he wished to do so or the court required it.

The Government do not think that it would be appropriate for the rules to make provision along those lines. In many cases, the child will be too young to understand the meaning of an application for a placement order or an adoption order, let alone the significance of the court hearing. In addition, we will need to ensure that children are not unnecessarily made party to proceedings, because involvement in them can be stressful for children, and it may be in some children's best interests to have their views represented differently.

I understand the points made by the hon. Member for Romsey (Sandra Gidley) and the concerns about how we ensure that the child's interests and voice are best represented in the system. We shall automatically make children a party to proceedings in placement order cases—as they currently are in care order cases—and we shall appoint a children's guardian. That will give children the right to separate legal representation.

The Bill does not provide for a child to be a party to all adoption proceedings, as we discussed earlier in the Committee. That is because such a provision may not be necessary in cases such as step-parent or relative adoptions. Court rules will, however, provide for the appointment of a CAFCASS officer in any adoption proceedings. The Government currently intend the child to be able to apply to the court for leave to be made a party to adoption proceedings, and the application will be considered in the light of the child's age and understanding.

In addition, the Lord Chancellor's Department and CAFCASS will use the opportunity provided by the creation of CAFCASS to consider the representation of children in all private law proceedings. They will consider whether other types of case might require children to be made a party to the proceedings or to be automatically appointed a children's guardian. They will also examine changes to the criteria used by the courts in considering whether to grant leave for a child to be made a party to proceedings. Any rule changes suggested in that review will be subject to consultation.

As regards the timetable for consultation on the draft rules, we must finalise the Bill and take into account the views of Parliament before we complete those rules. We intend to start consultation on their contents as soon as practicable thereafter, which we hope will be before the end of the year. We also hope that that will allow for a full three-month consultation period.

On a more general note, children of sufficient age and understanding are often invited to meet the judge, for example, to celebrate the making of an adoption order in straightforward cases. That ensures that they see the making of the order as a special occasion, and

they are often given cards to mark the significance of the day. In that regard, it should be said that judges are often careful not to invite the child to court until it is clear that the adoption order will be made, to avoid disappointing them. For some children—particularly younger ones—becoming involved in court proceedings can be a daunting prospect, and we must ensure that the system retains the flexibility to meet children's particular needs. The arrangements that I described are important because they allow the court to convey the significance of adoption, and I am sure that many of us would be excited to meet a judge.

It is important that the Bill ensures that the child's views are taken into account in all the decisions that courts and adoption agencies make about adoption. As we discussed, clause 1(4)(a) will oblige the courts, when making such decisions, to ascertain and take account of the child's views, bearing in mind his age and understanding. Furthermore, the Government have made it clear that the child's wishes and feelings should be actively sought and fully taken into account at all stages of the adoption process. That key value underpins our national adoption standards.

Court rules made under clauses 97 and 126 will provide for the appointment and duties of a CAFCASS officer. Those may include acting on behalf of a child in partnership with a legal adviser or reporting to the court on the child's wishes and feelings. Clause 1(4)(a) will oblige the courts to consider those views in reaching any decision. I hope that on the basis of those reassurances, the hon. Lady will feel able to withdraw the amendment.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I thank the Minister for that clarification. Such a detailed response is helpful, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126 ordered to stand part of the Bill.