Section 9 — Considerations applying to the exercise of powers

Adoption and Children (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:41 am on 7th December 2006.

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Photo of George Reid George Reid None 9:41 am, 7th December 2006

Group 2 is on matters to be taken into consideration in the adoption process. Amendment 84, in the name of Paul Martin, is the only amendment in the group.

Photo of Paul Martin Paul Martin Labour 9:45 am, 7th December 2006

Amendment 84 would insert into section 9(4) the words:

"the value of a stable family unit in the child's development".

Section 9 will be important in the adoption process because it deals with the crucial preparation stages for adoption. It is important that the right tone be set during those stages. Amendment 84 emphasises the importance of a stable family and reflects an ethos that is in the best interests of the child. It would ensure that consideration would, by law, have to be given to

"the value of a stable family unit in the child's development".

During the bill's progress, we have had a number of debates about whether we should include such a provision in the bill. We should not take for granted

"the value of a stable family unit in the child's development".

Rather, we should be proud to emphasise it by including those words in the bill, which we hope will be passed today. Given that children are considered for adoption because their families are not stable, we should ensure that at the early stages of the adoption process there is a legal requirement to give consideration to the value of a stable family, which would set the right tone for the future and ensure that children are given every possible positive opportunity.

Photo of Iain Smith Iain Smith Liberal Democrat

Will the member tell us what he means by "stable family unit"? How does he define the term in the context that we are discussing?

Photo of Paul Martin Paul Martin Labour

I expected that question. There could be many personal definitions among the wide range of members of Parliament, the public and organisations that will have a responsibility to deliver the legislation. It is important that we consider amendment 84 not in isolation but in the context of the wide range of considerations that are set out in section 9, and in the context of other amendments to which the Education Committee agreed at stage 2. A wide range of issues must be considered in order to ensure that a family can give a child an opportunity for stability in the future. The approach in amendment 84 alone would not give a child such an opportunity, but it would make a positive contribution.

I move amendment 84.

Photo of George Reid George Reid None

Seven members have requested to speak. That will be possible only if members speak for less than two minutes.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

It is important that we legislate on matters that can be defined. Paul Martin said that people have personal definitions of the term "stable family unit". Section 31 uses the term "enduring family relationship", which is a different way of saying stable family unit. The courts and adoption agencies will ensure that children are adopted only by people who are in enduring family relationships, which will be in the child's best interests. Section 31 therefore does exactly what Paul Martin wants the bill to do, so there is no need for amendment 84. If the change that amendment 84 would make has no substance, we must ask what it is for.

Section 9(3) says:

"The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration."

The idea that a court or adoption agency would regard an adoption by an unstable family unit as somehow safeguarding a child's welfare is absurd. We should stick with the bill, which provides that children can be adopted only by people who are in an enduring family relationship.

Photo of Paul Martin Paul Martin Labour

Will Fiona Hyslop clarify what she means by the term "enduring family relationship"?

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

An enduring family relationship is one that the people who will do the vetting and assessment of applicants judge to be a continuing relationship that will maintain the child throughout its life.

Adoption is not just about the point of adoption; it is about the post-adoption period, which goes on for a long time. We have voted on the importance of adoption services throughout the child's life; the Children (Scotland) Act 1995, which underpins much of the bill, also refers to the welfare of the child throughout its life. I am confident that "enduring family relationship" is the term that we need. The term has a legal, rather than a personal definition, so we should stick with the bill as it stands.

Photo of Elaine Murray Elaine Murray Labour

There is a question about whether amendment 84 is necessary, given that the bill places importance on enduring family relationships. However, to reiterate the importance of such relationships would not be to the detriment of the bill. Perhaps amendment 84 should have referred to "an enduring family relationship", rather than "a stable family unit", but we would create no problems by reinforcing the need for an enduring family relationship when the best interests of the child are being considered.

We must bear it in mind that families in Britain come in many different shapes, sizes and types. I would be concerned about an implication that one type of family is better than another, but amendment 84 does not contain such an implication, so I am prepared to accept it on the basis that it would provide additional reassurance.

Photo of Lord James Selkirk Lord James Selkirk Conservative

I support amendment 84, which is eminently sensible and would provide a necessary safeguard. At stage 2, I lodged an amendment that would have made it harder for adoptions to take place in the context of casual relationships, which do not necessarily provide stability. That amendment did not command a majority on the committee, because it was felt that the process for adoption is so rigorous that the best interests of the child will always be paramount. However, something more is required.

I say to Fiona Hyslop that the wording in amendment 84 is not inconsistent with the phrase, "enduring family relationship", but the addition of the word "stable" is important. Amendment 84 would provide an important indicator by stressing the need for stability in a family. I am glad to give Paul Martin my support on this occasion.

Photo of Iain Smith Iain Smith Liberal Democrat

I oppose amendment 84, which is also opposed by the British Association for Adoption and Fostering, whose advice and assistance has been invaluable to Education Committee members throughout their consideration of the bill.

I had two grounds on which to oppose amendment 84; I now have three grounds. First, the amendment is unnecessary. Secondly, even if it were necessary to insert the words that amendment 84 would insert, it would be inappropriate to do so at the start of section 9(4). Thirdly, if the phrase "stable family unit" has many definitions and can mean anything to anyone, its inclusion in the bill would not make for good legislation.

The fundamental principle of adoption that the bill will establish is set out in section 9(3), which says that the paramount consideration must be

"the need to safeguard and promote the welfare of the child throughout the child's life".

We should weigh up the value of every provision in, and proposed amendment to, the bill in the light of that fundamental principle.

Like Fiona Hyslop, I cannot envisage a situation in which a court or adoption agency, in exercising their powers under the bill, would consider placing a child for adoption in anything other than a stable family unit, whether the family was made up of a married couple, an unmarried couple, a couple who had entered into a civil partnership, a same-sex couple who had not entered into a civil partnership, or a single person. That principle is emphasised in paragraphs (c) and (d) of section 31(3), which use the term "enduring family relationship" in the context of couples who live together.

Photo of Iain Smith Iain Smith Liberal Democrat

I will give way briefly, but I have limited time.

Photo of David McLetchie David McLetchie Conservative

We agree that relationships must be enduring. However, an adoption is determined at a specific point in time and, because we have no crystal ball to tell us whether a relationship will endure, a judgment must be made on the basis of the circumstances at that time. Does the member therefore agree that the key issue is the stability of the relationship when the judgment is made, which is the issue that Mr Martin is trying to address in amendment 84?

Photo of Iain Smith Iain Smith Liberal Democrat

That is complete and utter nonsense. In any assessment of the suitability of a person or couple to adopt under section 17(2), an adoption agency will have to take account of the stability of the home—in the past and in the future—that the applicants would give to the child. The insertion of the words "stable family unit" is unnecessary and, I contend, perhaps even dangerous. Amendment 84 would add nothing to the bill unless the intention is to define the phrase "stable family unit" in a way that differs from the definitions of who can adopt in sections 31 and 32. As we have heard, there is no definition of "stable family unit".

Photo of Iain Smith Iain Smith Liberal Democrat

Section 9(4) sets out the child's rights, by providing that the court or adoption agency must have regard to

"the child's ascertainable views ... the child's religious persuasion, racial origin and cultural and linguistic background, and ... the likely effect on the child, throughout the child's life, of the making of an adoption order."

Amendment 84 relates not to the child but to the suitability of the applicants and would not fit in with section 9. However, the fundamental reason why we should reject amendment 84 is that it is unnecessary, because the bill provides that the paramount consideration will be the need to safeguard and promote the child's welfare.

Photo of Karen Gillon Karen Gillon Labour

I agree with Iain Smith's concluding remarks and I cannot envisage a situation in which an adoption agency would not place a child in a stable family relationship. Therefore, I fail to see what the objection is to having those words in the bill, if we are serious about putting stable family relationships at the heart of our adoption process and about putting children at the heart of the bill. The group of vulnerable children about whom we are talking may have been in unstable family relationships or in unstable care home situations, so what is wrong with saying in the bill that, when they move into another situation, it should be a stable family relationship?

Members say that there is no definition of the term "stable family unit" but, equally, there is no definition of the term "enduring family relationship". What is the difference between them? The question is fundamental. Parliament should vote for amendment 84, because that would say what we have said in many pieces of legislation: that we want stability and the family to be at the heart of children's development. I urge members to support Paul Martin's amendment.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I oppose amendment 84. I was interested to hear Paul Martin's response to Iain Smith's question. We are making the law of the land here, so we must be absolutely clear. To me, the fundamental question is what, in the 21 st century, a family unit is. Paul Martin lodged amendment 84, but he cannot tell us what he means by the term "family unit". He has made it clear that he does not know what the term means, but he expects us to vote for the amendment to include that term in the bill. I am sorry—that would not be good law and we should not support it.

Photo of Irene Oldfather Irene Oldfather Labour

I am in favour of amendment 84, in the name of Paul Martin. Section 9 is about considerations that apply to the exercise of powers. Amendment 84 seeks to put the needs of the child at the heart, core or centre of the adoption process, by emphasising the importance of a stable family to the consideration that agencies give to the matter.

It is difficult for most of us to know or even imagine the complex and tangled emotional web that children who are placed for adoption experience. Especially for children who are old enough to understand, adoption by its nature brings with it a past tragedy and, possibly, rejection. There is every possibility that children come to the process emotionally scarred, through no fault of their own. Therefore, the importance of a stable and loving relationship must be a primary consideration and should be enshrined in statute, because that would give powers to adoption agencies to deal with the matter appropriately. I support amendment 84.

Photo of Christine May Christine May Labour

It is important to remember that, when we make law, we should take account not only of whether the proposals are compatible with other legislative measures. We should also, as far as possible, take account of the wider public interest. For any law to have support, it is important that the wider public interest be considered. We have received representations from many groups giving various views on the issue, although I must say that I am concerned that relatively few of them talked about the interests of children, which is what the bill is about. It is vital that we reassure everybody who might be concerned, including children, that we are talking about stable family relationships.

Photo of Susan Deacon Susan Deacon Labour

Is not it the case that amendment 84 and at least one other amendment were lodged so late in the day that there has been little opportunity for any external bodies to make representations on them? Given that the mover of amendment 84 said that several debates took place on the issue during the passage of the bill, I seek clarification of why the amendment was lodged only 24 hours before this debate and was not embraced in the bill earlier.

Photo of Christine May Christine May Labour

That is probably an issue for the mover of the amendment to deal with in summing up. My view is that amendment 84 will give greater clarity in the bill on the circumstances in which adoption will be considered. Therefore, I support it.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat 10:00 am, 7th December 2006

I ask the minister to clarify one important point. Obviously, there are differing views about the correctness of amendment 84. Parliament has taken many measures to help groups that have previously been discriminated against. We can take pride in that, but one unfortunate by-effect is that some people have mistakenly got the idea that we are in some way opposed to marriage. As a Parliament that represents society, we must make it clear that we support stable and long-term relationships of all sorts and we must encourage people who believe in marriage to get married. Many of us are married and know that it is helpful in going through the rocky patches that any relationship goes through. We have said it before, but I would like the minister to say again absolutely clearly that, in helping other groups, we in no way denigrate marriage, and that people who are forming relationships and who believe in marriage should be encouraged to get married. That would help to assuage many fears in the country.

Photo of Patrick Harvie Patrick Harvie Green

Christine May says that amendment 84 would introduce greater clarity, but we would have a bill with two forms of the same concept, using the terms "enduring" and "stable" respectively. Paul Martin, in closing, needs to explain with greater clarity what difference he intends the amendment to make. He says that it would strike the right tone. I and many members have sympathy with the idea that we need to strike the right tone in our debates on the issue. However, even if we get the tone right, that will not mean that we have a created good legislation.

I am yet to hear how decisions would be different if amendment 84 were agreed to. If Paul Martin wants to convince undecided members, he must say what decisions are at present being made wrongly because such a provision is not in law, what decisions would be made wrongly if the provision was not part of the bill when it becomes an act and what difference he intends it to make.

Photo of Robert Brown Robert Brown Liberal Democrat

The debate has been useful. I say immediately that the Executive is taking a neutral stance on amendment 84. Nevertheless, it may be helpful to give members some background to the amendment, because some issues have been raised. At stage 2, Paul Martin lodged an amendment that sought to place a duty on courts and adoption agencies to consider married couples before any other prospective adopters. There was a lot of discussion about that and we resisted the suggestion on the ground that it would create a hierarchy of couples, with married couples automatically above all others, which we did not think was a desirable message to send out.

I echo Donald Gorrie's comments, which struck the right tone, to use Patrick Harvie's words. The Executive supports marriage and all forms of stable long-term relationships. It supports those relationships particularly as the backdrop to adoption legislation. However we arrive at it, the central issue is that the well-being of the child is paramount. Under section 9(3), that will be the overriding consideration that comes above all others. It could be argued that section 9 deals primarily with issues to do with the child, although as Irene Oldfather pointed out, it goes a bit beyond that and is on considerations that apply to the exercise of powers. Section 31 deals with the quality of adopters. One could make arguments about all that.

The central point for Parliament to determine is on definitions. Paul Martin wants to introduce into the bill the phrase

"the value of a stable family unit".

What does that mean? How is it defined? How will the courts interpret it? Those questions must be answered before Parliament decides on amendment 84. I was grateful to Paul Martin for not moving his amendment at stage 2, which was the right thing to do. At that time, we said that we would discuss the matter with him, which we have done.

Photo of Robert Brown Robert Brown Liberal Democrat

It is for Paul Martin to define what he means by amendment 84.

The overriding consideration is that the stability of any couple who are adopting a child is of the ultimate importance. That is central. Section 31 will already require the court to consider, among other aspects, whether a couple who do not have the recognised legal status of marriage or civil partnership are living together in an enduring family relationship. In assessing whether a couple meets that requirement, a court will in essence consider the same factors as it would consider under amendment 84.

In my view and the view of my officials, amendment 84 would add no additional legislative meaning to the bill. However, it is for Parliament to decide whether the additional security that would be given by the amendment is important.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Will the minister confirm what legal advice the Executive has had on the terminology in amendment 84?

Photo of Robert Brown Robert Brown Liberal Democrat

I have just dealt with that. I said that the phrase "enduring family relationship" in section 31 seems to mean pretty much the same thing as the terminology in Paul Martin's amendment 84. The official advice that we have is that the amendment would add no legislative meaning.

Photo of Dennis Canavan Dennis Canavan Independent

If the Executive is neutral on amendment 84, will the minister tell us how he is going to vote and why?

Photo of Robert Brown Robert Brown Liberal Democrat

That is a matter that I will determine and indicate shortly. Members will see during the vote which way I will vote. I am putting forward the Executive's position on the matter.

Photo of Paul Martin Paul Martin Labour

We have had a robust debate on an important element of the bill.

The issue of definitions has been raised. I can think of a number of definitions in sections of the bill and amendments that have been passed by the committee that have to be clarified. Some of them are quite straightforward. For example, section 15 says that the child should be

"at least 19 weeks old".

That is absolutely straightforward. However, section 17 says that the agency must submit a report on

"the suitability of the applicants".

How is the suitability of the applicants decided?

There are a number of definitions that need clarification in the bill. I accept that there could be a number of interpretations of amendment 84: many members have interpreted it in different ways. However, the important thing about the amendment is that section 9 deals with the preparation stages of the adoption process, which I believe to be the most important part of the bill. It is the section that deals with the time when the future of the child is considered. I make no apologies to Patrick Harvie when I say that that is the part of the bill in which we set the tone for the consideration of the future of that child.

As Karen Gillon re-emphasised, children who are up for adoption will have been through a traumatic experience and some of them will have come from families that are not stable. I make no apologies for using the word "stable". The official definition of the word, in the "Oxford English Dictionary" is "not likely to give way or overturn; firmly fixed" I make no apologies for setting that in place. I think that we should make no apologies for ensuring that, at an early stage in the process, the child is given the best possible opportunity.

I appreciate that we should consider whether to include in the bill a number of definitions, but I could say that in relation to a number of amendments that members have lodged.

Photo of Paul Martin Paul Martin Labour

Mr Rumbles did not give way to me, so I will not give way to him.

I want amendment 84 to be included in the bill. It sets in place the tone for the future.

Photo of George Reid George Reid None

The question is, that amendment 84 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Adam, Brian, Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brownlee, Derek, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Henry, Hugh, Home Robertson, John, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Mr Kenneth, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peattie, Cathy, Petrie, Dave, Scott, John, Swinburne, John, Tosh, Murray, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan
Against: Arbuckle, Mr Andrew, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brown, Robert, Byrne, Ms Rosemary, Crawford, Bruce, Curran, Frances, Deacon, Susan, Fabiani, Linda, Finnie, Ross, Fox, Colin, Gibson, Rob, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harvie, Patrick, Hyslop, Fiona, Ingram, Mr Adam, Jamieson, Margaret, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Maclean, Kate, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, Morgan, Alasdair, Neil, Alex, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Turner, Dr Jean, Wallace, Mr Jim, Watt, Ms Maureen, White, Ms Sandra
Abstentions: Hughes, Janis

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 59, Against 51, Abstentions 1.

Amendment 84 agreed to.

Photo of George Reid George Reid None

Group 3 comprises minor and consequential amendments. Amendment 85, in the name of the minister, is grouped with amendments 89 to 93, 106, 107, 109 to 112, 114, 47, 48, 50, 55, 141 to 147, 149, 69, 70 and manuscript amendment 154.

Photo of Robert Brown Robert Brown Liberal Democrat

The group consists entirely of minor and technical amendments. Amendment 85 will remove from section 9 text that is no longer necessary because we accepted an amendment from Ken Macintosh at stage 2, which inserted similar text in the start of the section. Amendment 89 will remove section 24, which is unnecessary because its effect is identical to that of section 19(4).

Amendment 90 will insert a new and more modern phrase into section 27. The concept of placing a child for adoption is familiar to practitioners and is in keeping with the language and approach of the bill. A similar change will be made by amendment 93, which will amend section 28.

Amendments 106, 107, 109 and 110 will all make changes to references to a child's age. The amendments are purely technical and will ensure that, throughout the bill, the age of a child is referred to in a consistent way.

Amendment 91 will improve the clarity of section 27 and remove any potential for confusion by removing a circular reference to a relevant period within which a child must be returned to a local authority by prospective adopters.

Amendments 92, 111 and 114 will all remove definitions of a registered adoption society. We have now provided a single definition for the whole bill, which will be introduced by amendment 143.

Amendment 112 will replace the word "applicants" with the phrase "prospective adopters", which is more accurate because, at the point in the process that section 65 deals with, people are not yet applicants. Continued use of the word "applicants" would also create internal consistency throughout the bill.

Amendment 47 is a drafting amendment that will make the wording of section 91(7) consistent with that of section 91A(4).

Amendment 48 requires more explanation. Members might be aware that there has been a great deal of discussion with stakeholders on what the interaction between the new permanence order provisions and the existing children's hearings provisions should be. I am grateful for the insights that the stakeholders have brought from their various perspectives and their differing views. I want particularly to mention Professor Kenneth Norrie, the BAAF, the Law Society and the Scottish Children's Reporter Administration in that regard. It is thanks to them that we have created a bill that will enable the two systems to work together for the benefit of the child. Amendment 48 is one of a number of amendments that will create that alignment. The amendment makes clear that it is only during the process of the application for a permanence order, and before the outcome of the application has been determined by the court, that no supervision requirement can be made or varied in relation to the child. Amendment 50 is consequential on amendment 48.

Amendment 55 will move section 92 to after section 93, which will improve the structure of the bill because section 92 deals with the duty to apply for variation or revocation, which should logically come after section 93, which provides the general power to revoke.

Amendment 141 will add clarity to the definition of "applicant", without changing its meaning. Amendment 142 will add clarity to the definition of "guardian", without changing its meaning. Amendment 144 will improve the definition of "relative". It will provide that grandparents, brothers, sisters, uncles and aunts be considered relatives of a child, whether by half-blood or full-blood and whether or not by affinity. The amendment will also include civil partners of relatives within the definition. Amendments 145 and 146 will remove text that has been made redundant because of clearer definitions at section 111.

Amendment 147 relates to an insertion into the Social Work (Scotland) Act 2001 and includes the relevant sections of the bill in references to regulation-making powers. The amendment will make paragraph I1 of schedule 2, the effect of which is the same, unnecessary. Amendment 149 will remove it.

Amendments 69 and 70 will combine two subsections into a single subsection and will change the order of references in the subsection to reflect the order as stated earlier in the bill.

Finally, amendment 154 is a technical amendment that will ensure that the reference to "relevant person" is inserted in the correct place.

I will be sitting an examination on this group of amendments at the conclusion of today's proceedings.

I move amendment 85.

Amendment 85 agreed to.