New provisions on the disclosure of information

Adoption and Children Bill – in a Public Bill Committee am ar 20 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

14. The Government has put forward proposals in the new version of the Bill that seek to create a new system for access to information. It would provide a single point of access to identifying information4 through adoption agencies and would apply to adoptions made after the Bill is implemented. As many of these provisions are new the Government would like to hear views on whether they strike the right balance.

15. The provisions are based on the following objectives:

—to ensure consistency of access to information for adopted people about the background to their adoption, a commitment made in the White Paper

—to give every individual involved in a person's adoption a right to express their wishes about the sensitive information that identifies them

—to give adoption agencies the discretion in exceptional circumstances to determine whether to override a decision to withhold or disclose identifying information

—and to balance the agency's exercise of discretion by providing a right for an independent review of the adoption agency's determination.

16. The intention is for the system to work generally as follows:

a) to deliver on the White Paper commitment, there should be standard package of information about a person's adoption and his background5 which is held by the adoption agency which:

i) provides information about others, such as birth parents and siblings, but does not identify them6

ii) is disclosed7 to the adopters as soon as possible after the adoption order

iii) is available8 as a right to the adopted person when he reaches the age of 18

b) that the adopted adult will be able to ask for identifying information about anyone involved in their adoption and to have it disclosed9 to them by the adoption agency provided:10

i) the birth parents11 have not objected to the disclosure of information that would identify them. This would include whether they have a specific objection to the disclosure of the information on the birth certificate. It is envisaged that in majority of cases the birth parents will be willing for the birth certificate to be made available through the adopted person's adoption agency12. The adopted person will have information about their date and place of birth, whether there is an objection or not.

ii) or consent has been granted by anyone else who would be identified

c) that the birth parents and others will be able to ask for identifying information about anyone involved in the adoption and to have it disclosed13 to them by the adoption agency provided14 consent has been granted by the person who would be identified.

d) in exceptional circumstances, the adoption agency would be required15 through regulations and under guidance to exercise a discretion in determining whether to disclose or to withhold identifying information. Examples include where one of the birth parents objects to the release of identifying information but the other does not. Another might be where an adopted person has asked for identifying information, the birth relative has objected but the interests of the adopted person's health and welfare are such that he should have the identifying information.

e) where the adoption agency reaches a determination to disclose or withhold identifying information contrary to the expressed view of the relevant party, it is to be subject to a review by an independent panel which would be constituted under the power provided by clause 12 in the Bill. For example, an adopted person would have a right to ask for a review of a determination by the adoption agency to withhold the information.

17. Many adoptions are now made on an open basis. Open adoptions are adoptions where it is seen to be beneficial for the child for the exchange of information and or contact to take place between the birth and adoptive families. Often the child knows from an early stage that he or she has been adopted; the adoptive parents and the adopted person have identifying information about the birth parents; and the birth parents have identifying information about the adoptive family and the adopted child.

18. The measures in the Bill that provide for the safeguarding of identifying information are intended to provide for the minority of adoptions where the sharing of such information is not seen to be appropriate in the circumstances and to ensure that where sensitive information is shared the views and interests of all parties are considered. To ensure that arrangements for open adoptions are clear and that they are not hindered where there is agreement clause 54(6) provides for the disclosure of protected information and section 76 information where an agreement is reached that includes the adoption agency. The intention is to provide for means to underpin an agreement between the adoption agency, the adoptive parents and the birth parents for the sharing of identifying information where the agency considers that an open adoption agreement would benefit the child's welfare and best interests.

Notes:

1 Adoption Agencies Regulations 1983, regulation 15

2 R. V. Registrar General, ex p. Smith, [1991] 2 All E. R. 88

3 Adoption Agencies Regulations 1983, regulations 12 & 13A

4 Clause 54(3). Identifying information is defined as information where a person is named or otherwise identified, and information from which someone can be identified from that information if it is put together with other information that the agency releases.

5 Clause 55(4). Background information will include information such as the child's birth details, medical history, interests, any special needs and progress. Such information will assist the adopters in the care and upbringing of the child.

6 Clause 57(1)(b).

7 Clause 57.

8 Clause 58 (2).

9 Clause 58(5)

10 Clause 58(6)

11 Clause 61(3). Birth parents will be informed at the time of the adoption order of their right to object until such time as the adopted person applies for their identifying information.

12 The Registrar General will retain his duty to maintain the birth records of the adopted person. He will also retain his duty to maintain the Adopted Children Register and the Adoption Contact Register. Under clauses 58(5), 59(2) and 76(3) access to the birth records of the adopted person will be provided through the adoption agency, as the agency is best placed to undertake this sensitive task.

13 Clause 59(2).

14 Clause 59(3).

15 Clause 61(1)(a)

Mark Ferrero, Branch Head, Adoption and Permanance, Cathy Morgan, Section Head, Adoption and Permanence, James Paton, Bill Principal, Adoption and Children Bill, Directorate of Children, Older People and Social Care Services, and Sandra Walker, Assistant Director, Solicitor's Office Division C, Health and Personal Social Services, Department of Health; Amanda Finlay, Director of Public and Private Rights, Lord Chancellor's Department; and Kieron Mahoney, Office for National Statistics, called in and examined.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield 10:10, 20 Tachwedd 2001

I welcome you, colleagues, to this first evidence session for the Adoption and Children Bill, and in particular I welcome our witnesses.

As you will appreciate, the time available is very constrained. We have an hour and a half in which—hopefully—to get through our business, with a further hour and a half for dealing with other witnesses. I will therefore be grateful if witnesses keep their answers crisp and brief, and I hope that my colleagues will ask their questions in a similar fashion.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

I start with the issue of placement orders, parental consent and consistency with the Children Act 1989. The adoption law review has suggested that wording should be included in the Bill stating that parental consent to adoption should not be dispensed with unless the benefits to the child of being adopted are so significantly better as to justify dispensing with parental consent. If such a provision were included in the Bill, what issues would arise and what would be the likely effect?

James Paton (Directorate of Children, Older People and Social Care Services, Department of Health):

We looked at that issue, following the adoption law review, in developing the Bill and the draft Bill in 1996. I think that the Government believe that the child's welfare should be the paramount consideration in all adoption decisions, including the question of dispensing with parental consent. Clause 1 sets out a checklist of factors that the court must look at in considering whether to make a placement order or an adoption order without the consent of the parents. In particular, I draw the Committee's attention to clause 1(4)(f), which obliges the court to consider the child's relationship with their birth family and any other significant people, the views of the family and their capacity to care for the child and provide a stable and secure home.

We did not explicitly use the phrase ``so significantly better'' because we did not think that it added anything to the considerations that the court must bear in mind in taking such decisions. The court will have to consider all the various factors. In weighing up whether or not to make the adoption order, it will have to bear in mind those factors, its other powers under adoption legislation and the Children Act, and, of course, the various parties' rights under the Human Rights Act 1998 and the European convention on human rights. The decision will need to be taken in the context of ECHR case law and the test that the court would have to take in deciding to dispense with the parents' consent would not be trivial or low.

We did not think that saying that the court must not dispense with the consent unless it is ``so significantly better'' added anything—what would the court look at in deciding whether it was ``so significantly better''? We think that the court would consider the list of factors in clause 1(4), weigh up various factors in the context of convention rights and the court's other powers and come to a decision. We are not sure that adding ``so significantly better'' would make a substantive difference, and we are concerned that it may also create confusion by opening up a large vein of debate about what ``significantly better'' meant.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

To ask an overall point, I would like to address the provisions relating to dispensing with parental consent. There have been many cases, including that of a nice young lady from care who told me that she would have liked to be adopted but because her mum refused—a mum whom she did not subsequently see for 10 years—she could not be adopted. Are you satisfied that the Bill will remove the ability of birth parents who are basically out of the equation to delay the process endlessly?

James Paton:

What it does is ensure that the court considers all relevant factors and weighs them up. The court will need to include the birth family's views, but consider them in the context of the relationship with the child, the value to the child of that relationship continuing and the relatives' capacity to provide the child with a secure and stable environment. Alongside that, there are other factors in the checklist including the benefit to the child of being adopted. Clause 1 provides a checklist of the various factors that need to be part of the decision of the court, which will weigh everything up bearing in mind the rights of all parties and convention case law, and will arrive at an appropriate decision based on the child's welfare. Would you like to add anything to that, Sandra?

Sandra Walker (Assistant Director, Solicitor's Office Division C, Health and Personal Social Services, Department of Health):

The only point that I would add is that the decision about dispensing with consent is taken at the beginning of the adoption process, and is not something that is left until the end when positions have become entrenched. Such decisions are made at the start so local authorities and other agencies will not be able to place a child for adoption unless they have parental consent or a placement order.

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

I have two points, Mr. Paton. The first is in response to your point about whether courts would be able to decide what ``significantly better'' meant, and what factors would be used. Surely courts are familiar with such debates because they have to consider similar matters when weighing up whether to make a care order. They must decide whether all the right conditions exist for a care order, whether it is in the child's interest and whether it will make a significant material difference. What is the difference here?

James Paton:

I think that the difference is that with the care order example one is talking about a court making a judgment on whether the child is likely to suffer significant harm, which is a tangible concept, but ``significantly better'' asks the court to make a relative judgment. I am not sure that including such a requirement adds anything to what the court will be obliged to do anyway under clause 1(4). How will a court decide that it is ``so significantly better'' as to justify? It would need to consider benefits to the child, views of the parents and everything that is in the checklist, weigh them all up in the context of the various parties' rights and reach a decision. I am not sure that ``so significantly better'' adds anything and I do not think that the parallel with a care order is exact because in that case one is talking about harm, whereas this is a comparative situation—``significantly better'' or not, what does that mean?

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

That is not the case. One might be dealing with significant harm, but the decision that must be made—explicitly—is whether making a care order would be better than making no order at all.

James Paton:

Indeed, and the same thing must be done here.

Sandra Walker:

The test for making a care order is that the threshold conditions are satisfied, which is the significant harm test. A placement order cannot be made unless the court, similarly, is satisfied that those criteria are met. Before the court can make a care order, it must look at the question of the child's welfare and then decide whether to make the order. It may not make it unless it considers that doing so would be better for the child than making no order at all. Precisely the same test is in the Bill: the court may not make an order unless it considers that doing so is better for the child.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

To ask a very brief question, in what percentage of cases are orders likely to be made without parental consent, and how does that compare to the current situation on adoption orders?

James Paton:

That is difficult. I suppose that the closest parallel would be the current situation involving freeing orders. About 40 per cent. of looked-after children who are adopted have previously been freed. We do not have regular information about the numbers of cases that are contested but, speaking from memory, I think that research in the early '90s indicated that about 75 per cent. of freeing orders were made without the active consent of the individuals involved, although only about 20 per cent. of the actual court cases were actively contested.

I suppose that similar proportions will arise here, although, as Sandra Walker says, because consent or dispensing with it is being dealt with earlier in the process, through the placement provisions, there may be an increase in the number of cases contested at that point. A criticism of the current adoption process is that it leaves too much to the final hearing and that birth families can feel faced with a fait accompli then. Because we are giving them a more substantive chance to address such issues earlier in the process, there may be a higher number of opposed cases. However, the court will take that into account and make a substantive decision after having heard all the parties' views.

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

There is no provision in the Bill for children—we are examining the adoption of older children here—to give explicit consent to being adopted, nor does there seem to be any mention of the separate representation of children throughout adoption proceedings.

James Paton:

I will make two points on that. The 1996 draft Bill included a clause that children over the age of 12 should consent to adoption. The consultation responses on that were overwhelmingly negative, indicating that it would place too great a burden on children. It was removed from the Bill on that basis. Clause 1(4)(a), however, will oblige the court to have regard to the child's ascertainable wishes and feelings regarding decisions, including the decision on making the adoption order. They will be

``considered in the light of the child's age and understanding''.

On the child's representation, the Bill provides for officers of the Children and Family Court Advisory Service, the children's guardian in such cases, to be appointed for placement order and adoption order proceedings. The child's guardian will therefore be present to represent its views to the court and to ensure that the court process is explained to it appropriately and sensitively. In terms of the child being a party to proceedings—

Amanda Finlay (Director of Public and Private Rights, Lord Chancellor's Department):

The child being a party to proceedings will happen automatically in placement order cases, and children will be able to apply to courts for leave to be made party to adoption proceedings. That will be given effect by rules once the Bill comes into effect.

James Paton:

That was made clear in the explanatory notes. The rules will be made under clause 126.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

May we turn to adoption support services? There has been a widespread welcome for support services being made available and extended to a wider constituency. There is a duty on local authorities to carry out assessments. Can the Department of Health officials explain how those assessments will work? They could be seen as delaying and hindering support services coming in and taking effect when they are needed. What are the mechanics of the process?

James Paton:

That is absolutely not the intention. They were developed to deliver the White Paper commitment to give new adoptive families a right to request an assessment of their needs for adoption support. That was a response to the performance and innovation unit report inquiry and the subsequent consultation, which showed that on too many occasions adoptive families feel like they have to fight the system, as it were, to get a proper assessment of their support needs, and that too often public services are not co-ordinated in providing such support. The assessment process is intended to address both those concerns. The assessment is available at the request of the adoptive family. It is intended that it will facilitate a joined-up look at what services should be put in place to help the placement to succeed.

The details of how the assessment process will work will be set out in the new national framework for adoption support, which the White Paper stated that the Government would develop in consultation with stakeholders. That work has already begun and the plan is to issue the draft framework for consultation next spring. The White Paper sets out the objectives and the Bill sets out the legislative framework under which they can be delivered, but the details of how the process will work is something that we want to develop with stakeholders, including adoptive families and social services representatives, to ensure that the system works in the way that we want and does not lead to any of the problems that you have identified.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The trouble is, of course, that we are looking at the Bill now: it will have passed through Parliament by the time the regulations are published, let alone by the time the results of the consultation emerge.

What will happen if a local authority refuses to provide an assessment? We all recognise that there is an acute shortage of social workers, particularly in the child care field; if they are all focused on providing assessments, who will be left to provide services? How is the process to be resourced?

James Paton:

Dealing with the first point about the assessment process, the Bill provides that adoptive families have a right to request and receive an assessment for support services.

In terms of resourcing, the Government have already provided £66 million over four years to support the White Paper programme, and of course the resources required to implement the Bill will be addressed in the forthcoming spending review process.

On the shortage of social workers, the Government recognise that there are problems. That is why they recently launched a recruitment campaign to attract more people into the profession.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Will that money be ring-fenced? What happens when social services departments do not provide an assessment, or their subsequent support services are not up to scratch? What onus is there on them to provide, and what is the penalty if they do not?

James Paton:

With regard to social services departments failing to perform their duties under the Act, the Bill contains default clauses, one of which is clause 15—

Sandra Walker:

It is clause 14.

James Paton:

They allow the Secretary of State to issue directions to authorities to help them comply with their duties under the Bill. The social services inspectorate currently inspects social services adoption functions. In future the National Care Standards Commission will inspect such functions. Any failure to deliver services will be drawn to the Secretary of State's attention. He has a range of powers under the Local Authority Social Services Act 1970 and the Local Government Act 1999.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 10:30, 20 Tachwedd 2001

Although I can see that we have the framework to say, ``You are not doing properly what you are supposed to be doing'', how will failure be judged? Will there be a time limit by which an assessment must be made, and a further time limit by which the support services that that assessment deems are necessary come into effect? Will such time limits be included in the regulations that are to be issued in spring?

James Paton:

These are all issues on which we shall consult in terms of how the process should work in detail and what the standards should be. However, the National Care Standards Commission will need a set of standards against which to inspect. Those standards will include the provision of adoption support services. Standards will be applicable, but their detail and how the process should work in terms of precise time scales is something that we shall develop with a range of stakeholders. After that process, we shall set out guidance and regulations to be inspected against and enforced as I have described.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

On intermediary services, do you agree that they have a valuable role to play, and has consideration been given to making them a statutory obligation?

James Paton:

There are circumstances in which intermediary services can play a useful role. When two parties in the adoption process want to make contact, it is often better for that to be handled through an adoption agency that has the appropriate expertise. In terms of whether consideration has been given to putting this on a statutory basis, this is one of several potential adoption support services on which we shall be consulting as part of the development of the framework. The intention is that the powers will allow us to prescribe that local authorities must put in place a range of adoption support services. Local authorities will be obliged to put in place arrangements to provide the range of services that we develop through the framework. It is obviously open for that to include intermediary services, which will be consulted on alongside other potential adoption support services that form part of the framework.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Mr. Brazier, you have a question on the registration of adoption support providers.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

There is concern that the provision could kill off small self-help groups. Looking at the exemptions in the relevant clause, the one that seems to be missing is groups that are run wholly or mainly by adopters. Are the Government planning to force little groups of adoptive parents, who get together in the same way as other groups of parents get together, to register?

Cathy Morgan (Section Head, Adoption and Permanence, Department of Health):

The intention is to try and regulate a sensitive position in terms of vulnerable people who are affected by adoption. The regulatory burden will need to be proportionate to the level of protection that can be offered. We do not intend to prevent individuals from meeting in their homes in a supportive environment. However, if services such as counselling were to be provided, they would fall within the boundaries of the registration. We shall be consulting on those standards so that we can ensure that we are not over-regulating the system. The intention is not to close down small groups of people getting together.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

We have a problem throughout the Bill because, for reasons that one can well understand, we are establishing in clause after clause a framework for regulations. The real business will be contained in statutory instruments, which may go through on the nod or be considered very briefly in Standing Committee. It is crucial that clause 8, which includes six groups of exemptions, should have a seventh—a paragraph (g) should be added to cover groups that wholly or mainly meet in people's own homes and are wholly or mainly organised by adopters themselves.

James Paton:

That is something that we shall look at. The intention is certainly not to police the activities of individuals in their homes; it is to regulate the provision of counselling in a sensitive setting for potentially vulnerable people so that it is of appropriate quality and conducted by people who are appropriately qualified or equipped to perform that function. That is the intention and we shall look at the point.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

That would be good. It would be nice if the issue could be covered in the Bill, rather than considered in a Standing Committee at a later stage by a group of people with a rubber stamp.

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

I hope that that is not a suggestion that parliamentarians would merely rubber-stamp something. Mr. Brazier: Minister, I stand reproached.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

To turn to clauses 53 to 62 covering access to information, I am interested in what appears to be a change of tack on the rights of adopted people to gain access to their birth certificates. We have received, as you are probably aware, significant evidence expressing concern about that issue. I recognise that there has always been a problem with balancing the rights of an adoptive child with those of the birth parents. During the last Session, when we looked at the child migrant issue--you are probably familiar with it, Mr. Paton--we met people who were denied any knowledge of their birth and natural parents, and I am concerned that we seem to be going over the same ground now. The National Organisation for Counselling Adoptees and Parents, for example, said that it was appalled at the changes made to the Bill; I wonder what your response is to such concerns. Why are the changes being introduced now?

James Paton:

The first thing to do is to say is that we recognise that this is an extremely difficult and sensitive area in which it is difficult to balance the rights of the various parties in the process.

We are making the change because we are taking the opportunity--it does not arise often—to look at the adoption legislation and to consider whether there is anything in the existing system that we might want to change. The Government are taking a consultative approach to the issue, which is why the Bill has been referred to a Special Standing Committee, and we are keen to hear the views of all the various organisations in the field on these proposals. We recognise that they are a change, but this is an extremely difficult and sensitive area in which it is hard to strike a balance.

Perhaps it would be helpful if I explained the thinking behind the change and what drove it.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

If you could do so briefly, please.

James Paton:

We are trying to do three things. First, we are trying to provide a more consistent approach to the information that adopted people receive about their background, which is why the Bill includes provisions to prescribe a standard package of information that agencies will need to hold because adoptive people will have a right to see it when they reach the age of 18.

Secondly, when information identifies individuals, we want to provide for all parties to be able to express a view about the provision of that information to another party. The Bill provides, for example, that birth relatives would be asked whether they would have any objection in future to an adopted person receiving identifying information about them from the adoption agency record, including a birth certificate. The current system does not provide for birth relatives to be able to express a view on that and for it to be taken into account. The adoption law review suggested that there should be a change concerning adoption agency records in the context of data protection philosophy and human rights. People should be given an opportunity to express a view on whether identifying information about them should be passed to another party.

The third point is about trying to provide safeguards in the system for a small minority of cases in which it would be inappropriate and perhaps harmful for information to be exchanged. We recognise and expect that in the vast majority of cases there will be openness and exchange of information. The provisions have been designed to deliver that, which is why the presumption is that, unless there is an objection by the family to the exchange of identifying information, that information will normally be provided to the adopted person.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Is the change based on evidence of problems arising from birth families being upset by being contacted? Have you had representations about that?

James Paton:

We have, but it is fair to say that we are talking about a very small minority of cases—although they are potentially very significant for the individuals involved. I acknowledge that in the vast majority of cases the system works well. The concern is about the small minority of cases in which it does not. People have been contacted as a result of identifying information being provided against their wishes and we have received a small number of representations on the effects of that. In addition, there could be instances in which it might be dangerous for relatives if identifying information about them was provided to an adopted person who might wish to cause them harm.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Do you not think that you are taking a sledgehammer to crack a nut?

James Paton:

This is one of the issues on which we want to hear views and we shall be interested to hear the Committee's views. We acknowledge that in the vast majority of cases the system has worked well. However, the implications for the individuals involved in a small minority of cases in which it does not could be significant.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I should like briefly to look at the matter in an historical context. The regime that people are talking about was introduced in 1975-76, but adoption started in the 1920s. My concern is constancy, and you said, Mr. Paton, that that is an important part of what you are attempting to achieve in the Bill. When we moved to the current regime, what changed from the pre-1976 regime?

James Paton:

Kieron, am I right that before 1976 a court order was required to obtain access to birth relatives?

Kieron Mahoney (Office for National Statistics):

Yes, and such court orders were relatively rare. It was in response to the demand for access to information that the new arrangements were put in place in the Children Act 1975.It is interesting to note that the Government of the day decided that as a safeguard the new arrangements would be available only to those who had had counselling services if they were adopted before that date to guarantee the promise made to birth parents who had given up children for adoption prior to that date that there would never be any attempt at contact. For those adopted after 1975, counselling was an option so that people could choose whether to be given the information in a more supportive environment.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

The point is that after 1975, one adopted a child on the basis that at some point the child would find out—whereas before they would not have found out.

James Paton:

Yes.

Kieron Mahoney:

Yes.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Before 1975, the deal was that the adoptee would not know, and after 1975 that they would know.

James Paton:

And that it would technically be open for that person to get a copy of their birth certificate.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 10:45, 20 Tachwedd 2001

I just make the point because it is relevant in terms of pre-1975 adoptions. We should not assume that people under the old regime should be treated the same as those post-1975, because the situation under which they adopted was very different.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

The restrictions have been introduced to safeguard a small number of birth parents who may be put in danger.

James Paton:

That is one view.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

So, what is your take on NORCAP's suggestion that there should be no restrictions, but that in cases of concern the adoptee should absolutely undertake not to make contact with their birth parents? Are you happy with that suggestion?

James Paton:

That is something that it would be interesting to explore. My concern would be about what happens in the small number of cases when the adopted person is potentially intent on causing harm to the birth relative. The new system that we are suggesting channels access to identifying information—both the birth record and the agency record—through adoption agencies, which we thought would be best placed to make these sensitive and difficult decisions. An adopted person would approach such an agency and request access to the information, and we would hope that that would give an experienced agency a chance to pick up instances of concern. I have had such cases mentioned to me by adoption agencies. One concerned an adopted person who contacted an adoption agency seeking information about their birth family because they wanted to kill their birth parent because the adoption had taken place after severe childhood abuse that had left the adopted person disfigured, and they were intent on tracking their birth parent down. I suppose a concern might be how a voluntary system would safeguard birth parents in that small number of cases.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

I agree; I thought that it was an interesting suggestion, but I was unsure whether it would safeguard birth parents in the situation that you outlined.

Mark Ferrero (Adoption and Permanence, Department of Health):

I would like to pick up on the contextual points. It is important to understand that the law we are making now reflects the circumstances of adoptions today, most of which are open and occur with contact. That is beneficial for the child, and it is also beneficial for the birth parent because it can help them come to terms with their grieving over the loss of their child. However, in a tiny minority of cases, the circumstances are very difficult. We are trying to strike the right balance. We are not trying to step in the way of good adoption practice, but we are trying to provide a legal framework that protects against the most serious cases. We would be interested to hear what the ADSS—the Association of Directors of Social Services—has to say about this proposal because I understand from my contacts that it supports this approach.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

The proposals are, of course, looking forward; this is not retrospective. Adoption based on a certain framework in the past holds good. We are looking to what we want to do in future, which is an important point.

Mark Ferrero:

That is a very important point.

Photo of Kevin Brennan Kevin Brennan Llafur, Gorllewin Caerdydd

It is an important point, although it is also important to reflect on the fact that there have been massive social changes since the deal was done. Many birth parents feel no sense of shame in relation to adoption, and take a different view in later life about contact than that they might have held at the time of the adoption. The point about adopted adults contacting birth parents has been well pressed. Does the Bill do anything to enhance the rights of birth parents to contact adopted children in adulthood, and what principles have you applied in considering that issue?

James Paton:

We have applied principles that are generally consistent with the process at the moment: when an adult requests identifying information from the adoption agency concerning the adopted person, that should not be disclosed unless the adopted person is consulted. Of course, the adoption contact register is also in operation so that birth relatives who wish to make contact with an adopted person can register on it. If the adopted person also registers, they are informed of the relatives' registration and can take forward contact.

Photo of Kevin Brennan Kevin Brennan Llafur, Gorllewin Caerdydd

May I press that point a little further? The information exchange requires the registration of both parties, but there are cases—those that have just been mentioned might be examples—in which an adopted child might have an incorrect belief about its birth parents and the reasons why it was adopted. For example, an adopted child might believe improperly that it was abused by its birth parents, rather than by somebody in the care system. I know of such a case. Under those circumstances, is there any provision for the birth parent to signal actively through a third party their desire to make contact, rather than having to rely on the adopted child seeking information in adulthood by registering?

James Paton:

The question of a more active service is part of the issue of the role of intermediary services in providing adoption support. As I said, we will be consulting on that as part of the national framework.

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

What criminal offences in the past 25 years have been committed by adopted people against their birth parents?

James Paton:

I do not have that information.

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

Should not that information be absolutely seminal to a decision, given that a step is being taken that could cut across what many would regard as a fundamental human right: to have knowledge of one's origins?

James Paton:

There is no absolute right to access to the information on the register at the moment. Of course, when the birth parent registers no objection, things will continue, and that is what we expect to happen in the vast majority of cases.

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

These issues are full of emotional pain and difficulties, worries and anxieties, but what real evidence is there that the legislation since 1975 has been harmful to anyone?

James Paton:

As we said at the beginning, we are talking about a small minority of cases of concern. Representations have been made to us by individuals who have been contacted against their wishes as a result of the supply of identifying information. They consider that to be extremely distressing. There are also risks inherent in the small number of cases in which the adopted person may wish to cause the birth parent harm. We have had such cases anecdotally brought to out attention, and there was also the Smith case, but it is fair to say that we are talking about a small number of cases.

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

Did the adopted person actually harm the birth parent in those cases? Were the police involved, or did the matter just not come to anything? Is there any case in which someone has actually committed a criminal offence against their birth parent?

James Paton:

I do not have that information. In one of the cases that was mentioned to me, the adopted person was seeking information with the express intention of killing his birth parent. He sought that information through his adoption agency, so they were able to counsel him, to inform the police and to contact the birth relative. As things stand at the moment, he could have sought his birth certificate through the registrar-general and taken action to track down the person without involving the adoption agency, so the system might never have been made aware of what was happening. There were potential risks involved in that situation. However, we are talking about a small number of cases.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I echo the comments of the hon. Member for Lancaster and Wyre (Mr. Dawson) and, indeed, yours, Mr. Chairman. It seems an extraordinary use of a sledgehammer to crack a nut, messing up an arrangement that has worked very well for 25-odd years in order to protect one or two alleged abusers who are in danger.

I return to what the hon. Member for Cardiff, West (Kevin Brennan) said. The Bill is absolutely right to hold the line on information to birth parents. We can all exchange stories about that. I am glad to see the hon. Member for Lancaster and Wyre nodding. Through my constituency postbag I heard about a couple who adopted an unconnected boy and girl of a young age who had both had a terrible time prior to being taken into care. The boy turned out very successfully and has a good university degree; the girl was all set until age 15, when the birth mother managed to discover where she was living. From then on, she went rapidly downhill and is now a prostitute in London. Countries such as Australia, which have allowed birth parents access to information in most adoption cases, have seen a collapse in adoption, because potential adoptive parents know that it does not work. I am sorry: that was a point rather than a question.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

It was a very interesting point.

Photo of Kevin Brennan Kevin Brennan Llafur, Gorllewin Caerdydd

I was talking about contact in adulthood, not during the process.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

The damage that could be caused to a recipient of information is not just physical damage, which is all that has been mentioned so far. It could be the result of moral pressures, someone wanting financial support, or, in relation to a pre-1975 adoption, the child not even knowing that it was adopted—pre-1975, people often changed first names. There are many issues other than whether someone is going to be physically attacked, including emotional and financial matters.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

I am conscious that we are in debate rather than asking questions, but do you want to respond briefly to that, Mr. Paton, before we move on?

James Paton:

I do not think that I have any specific point to make. Generally, I agree that it is a question not only of safeguarding from physical harm, but allowing birth relatives to have some kind of say about whether or not they want identifying information about them to be disclosed.

Photo of Andrew Love Andrew Love Labour/Co-operative, Edmonton

Before we move on, I want to ask Mr. Paton a question about the independent review mechanism. A great deal is being left to regulations in terms of procedures and which decisions will be taken, yet the mechanism is supposed to create confidence in the system. Can you outline the independent review mechanism and how it will operate?

James Paton:

There are two things that the independent review mechanism will do. First, it will deliver the White Paper commitment that there should be an independent review available for prospective adopters where the agency indicates that it is minded to turn them down and they are dissatisfied with the reasons that they have been given. At the moment, they can make representations to the agency panel that assessed them and request a further consideration. The view taken in the PIU report and subsequently confirmed in the consultation was that that was not seen as sufficiently independent to build the credibility of the assessment process and that there should be an independent review mechanism that prospective adopters can turn to where they consider that they are going to be turned down for unsatisfactory reasons. The review mechanism would be able to consider the case afresh and make new recommendations to the agency.

That is the first purpose of the review mechanism, but the Government did say that they would consult on the detail of how it would work and set that out in regulations. It is clearly important that it works in a way that supports the process, that it is not overwhelmed, and that it does not lead to delay and set up perverse incentives. That is why the provisions in the Bill are flexible—they enable us to take into account the effects of any consultation.

We also envisage a potential role for an independent review mechanism under the new access to information provisions, and our memorandum to the Committee sets out what we envisage providing. There may be some cases where, in exceptional circumstances, the adoption agency that is handling the exchange of information feels that, although there is no objection to the provision of such information, to do so might constitute a risk to the person concerned or be against their interests. We felt that, where the agency decides to override an objection or consent, we should provide an independent review of that decision. Those are the two instances in which the independent review will be activated.

Photo of Andrew Love Andrew Love Labour/Co-operative, Edmonton 11:00, 20 Tachwedd 2001

To follow that point up, I have been told that there has been a mixed reception to the proposal. The main concerns appear to relate to the costs and how they will be attributed. Can you comment on that at this stage, after consultation?

James Paton:

As the explanatory notes make clear, the costs of setting up the new independent review mechanism will be met centrally by the Government. The provision in the Bill that has raised some concern is actually an enabling provision that allows regulations to be made for agencies to meet some of the costs of the review. At the moment, if an adopter requests a reconsideration by the original agency, it is clear that they meet the costs. To clarify matters, I repeat that, as the part of the explanatory notes that deals with public expenditure points out, the costs of setting up the central body will be met centrally by the Government. It is not a self-funding system, as it were.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Have the Government given any more thought to the difficulties, which I have mentioned in previous parliamentary debates, associated with turning down those who apply to adopt children? Giving the reasons for turning down such people can prove extremely destructive to their personal lives. I was given no clear answers before. Are we any clearer on that point?

James Paton:

This is something that we have considered. It is an issue that applies now and will apply in future. The general principle is that, where somebody is turned down, they should be given as far as possible clear reasons why. Current guidance and regulations are to that effect, and we would expect future guidance and regulations to be to that effect. That recognises that there may be circumstances where information has been supplied in confidence by referees and cannot therefore be provided directly, or where sensitive information that is known about one party in the relationship is perhaps not known by the other party.

Current guidance suggests that there are also instances involving confidential health information. It suggests that such information should be disclosed appropriately through the general practitioner, and we would expect that to continue. Where confidential information is provided by referees, current guidance suggests that agencies should attempt, as far as possible, to provide clear explanations, but where they cannot because of confidentiality, there is recognition that, in some cases, explanations will not be able to be communicated. We would not want to compromise or deter referees from being completely frank, so a recognition has been made that agencies cannot give full and complete reasons in all cases under current regulations. That will continue under the Bill. The general thrust is to try to provide as full an explanation as possible, but it is recognised that that is not possible in a number of circumstances. Nothing that we are doing changes that.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I have a brief question. I should like to declare an interest. My wife and I are parents of an adopted child aged two and a bit and so could benefit from the Bill. With your permission, Mr. Hinchliffe, rather than mention this every time that I speak, I shall mention it now to put it on record. Let me put this question to you, Mr. Paton: should prospective adoptive families have access to information about a child's history?

James Paton:

Yes. Current best practice, obligations and guidance are that prospective adoptive families should be provided with full information about a child's background to help them cope successfully and to promote a successful placement. Our intention is to continue that current best practice. The information provisions enable us to prescribe what information prospective adopters should receive about a child.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

Can you comment specifically on medical histories and their relevance?

James Paton:

That is relevant. I think that I am right to say that current regulations—yes, regulation 12 of the current agency regulations—oblige adoption agencies to provide prospective adopters with information about the child, his state of health and medical background. That is relevant and we would expect such information to continue to be provided.

Sandra Walker:

The current regulations specifically say the history of the child's health and the current state of his health.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

We have had several conversations about that issue and I do not propose to go back over old ground because it is on record. On record last time, Mr. Paton, you said that an expert group was developing a code of practice around the issue of disclosure of information during the prospective adoption period. How has that developed?

James Paton:

We published a draft practice guidance in August and we are currently consulting on it. I believe that that included the importance of the provision of information around the placement process.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

So what is the time frame for the consultation?

Cathy Morgan:

The closing date is 30 November.

James Paton:

It is live and being taken forward.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

That was the first point that I wanted to check. Secondly, I asked you a question about the difference in performance between authorities in terms of successful adoption rates. One issue that you identified as being key was the quality of record keeping, which still remains the case. Obviously, one needs good record keeping to support the disclosure of information, so I wonder where we are on that. I know of the taskforce that is going around and driving up best practice, but my understanding is that it has not, in the first instance, specifically targeted authorities that do not have such a good record. Perhaps, it should have done so because by targeting authorities with less success in this area, driving up their practice will happen more quickly. Will you make some comments on that?

Mark Ferrero:

Could I answer that, please? The first wave of councils that the taskforce worked with included some that had very poor records, which was discovered when it visited them. It has done some good work in looking at how one should track children who are in the care of the council to see where they are, where they are placed and what their needs are. It has produced a tool to help other authorities get a better handle on their record keeping as a core element in their looking after children.

It is worth adding that as part of the implementation exercise for the national adoption register we are asking all councils to use the taskforce's tool. We want them to examine the records of children in care for whom adoption has been identified as the plan to make sure that that is still appropriate. We want councils to review and update their records, and set them on a sound footing so that they can submit good quality data to the national adoption register. We are doing, and we have done, quite a lot to tackle this underlying problem that we all acknowledge as a big challenge, especially for those authorities where the turnover of staff is very high.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

Amanda Finlay, I am sorry to put you on the spot, but I asked you a question on 24 April in Committee, and you promised to come back to me in writing. I shall therefore ask it to you again, although I know that we have had a little thing called a general election in between. To quote Sir Ronald Waterhouse:

``the Law Commission should inquire into the position of local authorities in relation to the publication of reports commissioned by them with a view to strengthening the defence of qualified privilege (or widening it) and giving guidance at least on their relationship with their insurers''.

The point that I made then which underlies this is that it is not a legal requirement for local authorities to tell the truth, which astonished me when I discovered it but in fact it never has been. Furthermore, local authorities told us off the record that in some cases they can be required by their insurers to lie, and they can be in breach of their insurance policies if they do not do so. I see the hon. Member for Cardiff, West nodding. We are dealing with damaged children, and although one can see where the local authorities are coming from it is by any standards unsatisfactory that that should be the position.

Amanda Finlay:

I understand from my supporting officials that I wrote to the Chairman. I am sorry that I have not got that letter with me. I ought to send you a copy and any further up-to-date information.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

May I come back to the updating and review of records to which Mr. Ferrero referred. Is this being catered for within the remit of the £66 million that has been allocated? Given the enormous shortages in personnel in child welfare departments, are you convinced that that will be a meaningful updating of records that will provide a standard benchmark for all local authorities across the country in time for the new legislation?

Mark Ferrero:

What I forgot to mention is the work that we are doing in parallel with that on the integrated children's system. We are developing a system to track and monitor all children in the looked after system with exemplars of how they should be recorded and how case notes should be made. That work is in hand. It is fair to say that the taskforce's work is aimed at addressing the immediate problems faced by social services departments in identifying the number of children that they have who are looked after and for whom adoption is the plan. Such a plan may not be appropriate because it might have been made months or even years in the past.

The taskforce's work also helps to equip social services departments to participate properly in the register, which is a meaningful exercise. The £66 million is a funding stream through quality protects, which is addressing children's systems across the piece and looking at how they can be improved.

I take the point about social services departments that are short of staff, and that will be a problem for them. The Government are addressing that through their recruitment campaign. In the shorter term, however, we have the taskforce to go in, give hands-on help and spread best practice, which will help councils across the board address what is already their responsibility.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 11:15, 20 Tachwedd 2001

With respect, recruiting, if it works, and when it eventually brings on stream new social workers, is entirely irrelevant to information on children in care now, which you said you are updating and reviewing. How many children in care are we talking about on average per authority? The money is being stretched to pay for this review, as well as all manner of other things. It sounds like the right thing to do, but I am concerned that nothing like the detail that is needed will be available by the time the legislation comes into force and all the new extra responsibilities are placed on local authorities.

Mark Ferrero:

The taskforce is looking at cases where adoption is the plan. Its remit is adoption and permanence, and that is my remit. On the broader, looked-after children system, we have to remember that most children in care return to their birth families and are in care for a relatively short period. That is being addressed through the integrated children system work that we are doing. There are already responsibilities on local authorities to record and track the children of whom they are corporate parents, but we recognise that they need help in actually maintaining those records and keeping them up to date. That is why we are doing this extra work to help them improve.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

I have two brief questions on intercountry adoption. First, in what way will it tighten up the issue of the countries from which children can be adopted?

Cathy Morgan:

The Bill, as it stands, has been strengthened in three main places. In clause 80, we have introduced a new offence. Where a child has been adopted overseas by a British resident in the previous six months and brought into the country, that resident must have been through the proper approval and assessment procedures. The intention is to catch anybody wishing to adopt from an overseas country and bring the child back when that is not for the purposes of adoption. The legislation as it stands is for bringing a child into the UK for the purposes of adoption, and that means adopting the child in a UK court.

Where somebody goes to another country, adopts, brings the child back and says, ``Actually, we don't want to adopt the child here,'' we would be unable to catch them under current legislation, whether or not the adoption order is recognised in respect of the designated list. Part of clause 80 would prevent that, because they would be bringing in a child with an adoption order that was less than six months old. We will also bring into force, through clause 83, restrictions on which adoption orders are actually recognised. There will be clear criteria set out in regulations, explaining the sort of systems that a country must have for that adoption order to be recognised under UK law.

Finally, we are also doing some other work—it is not actually Bill-related, but it will effectively link in with it—on the ratification of The Hague convention. It is acknowledged that the majority of the best country systems are those belonging to countries that have already signed up to The Hague convention on intercountry adoption. At the moment, it is not open to British residents to apply to a great number of those countries because the UK has not ratified. When the UK ratifies, those systems will be open to UK residents. That should mean that people will be able to adopt from overseas, and can be sure that they are going through decent systems.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

Will you clarify what the Bill means in terms of which of those people who wish to adopt from abroad will be able to undertake home studies?

Cathy Morgan:

The only people who will be able to complete a home study, whether anybody wishes to adopt from the UK itself or from abroad, will be voluntary adoption agencies and local authorities.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

The Bill makes it quite clear that only married couples can adopt jointly, and I am concerned that, ultimately, the best place might not be found for some children. What would be the repercussions of allowing unmarried couples to adopt jointly, and why was the decision taken against providing for that in the Bill?

James Paton:

The decision was taken to continue with the current legal position whereby only a married couple may adopt jointly. Broadly, the adoption law review looked at this in the early 1990s and suggested that the current position should remain. In relation to the joint adoption of a child, it was felt that married couples, given the publicly recognised commitment that they had given and their legal obligations to each other, were more likely to provide the child with the stability and security that it needed. That was the adoption law review's conclusion. The Government's view was that those proposals were broadly right, but the Secretary of State said on Second Reading that the issue is subject to debate in this context, as well as in wider contexts, and that having heard the views of the Committee, the position would be considered in that light.

It is worth saying that in providing for joint adoption solely by married couples we are in line with the majority of European countries, even the majority of those that have introduced partnership registration schemes. Many of those specifically exclude joint adoption, although some include it.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

It occurs to me that we review this legislation once in a lifetime, and it will be a long time before we will be able to review it easily.

We now have the Human Rights Act 1998, which we have to take into consideration. Are you confident that the Bill's provisions are acceptable according to article 8 of the Human Rights Act?

James Paton:

As with all the provisions in the Bill, the Secretary of State has signed the section 19 declaration that the provisions are on balance compatible with the ECHR and, as I said earlier, that view is clearly shared by a large number of other European countries.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

Are you confident? You said the Secretary of State had signed it; you did not actually say whether you were confident.

James Paton:

That is a different thing.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Can you say that again, Mr. Paton?

James Paton:

The declaration cannot be signed unless the advice is that on balance the provisions are compatible with the convention. There may be challenges in this area, as there may be in any area, but that is the position.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

I raised this question in the debate in the last Parliament in terms of the conflict between the provision and the welfare principle in terms of the child's best interests, whereby if it was in the child's best interests to be adopted by an unmarried couple, it could not happen.

James Paton:

One partner could adopt the child and the other could acquire parental responsibilities.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

That is not quite the answer, though, is it?

James Paton:

The law review's conclusions were based on promoting stability for the child where a joint adoption was being proposed and on the fact that married couples had a legal relationship and a publicly-signalled commitment to each other that meant that it was more likely that stability and security would result.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

Precisely on that point, looked-after children can be placed with foster parents who are unmarried. The child may then be in a situation that everyone agrees should be made more permanent. The Bill would allow for a special guardianship order, but it would not allow for the child to be adopted. Is that not a problem in terms of promoting permanency? For some children, being adopted is what will promote their feelings of stability and permanency.

James Paton:

It would not prevent them from being adopted; it would prevent them from being jointly adopted by an unmarried couple.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

May I ask about the legal arrangements in dissolution following an adoption? Statistically, it is much more likely that an unmarried union will dissolve than a married couple will divorce, but there is clear provision in divorce courts for what happens to children, property and so on. What will be the arrangements concerning the parting of an unmarried couple who have either adopted or chosen the new special guardianship order, as they will be allowed to do? That will surely be very complicated; divorce law cannot simply be picked off the shelf under such circumstances.

James Paton:

No, it cannot, although I must turn to my legal advice here.

Sandra Walker:

This is quite a tricky one. The current adoption law provides for joint adoption by married couples, so that fits into the framework of legislation generally. If the couple subsequently divorce, the child will be treated as the child of the family and the arrangements for the child's continued upbringing and maintenance will be dealt with in consequence of that dissolution.

Obviously, if a couple are unmarried, a much more difficult situation would have to be dealt with. For example, in relation to the rules governing property, it is open to anybody to make a will so that they could dispose of their property in accordance with their testamentary disposition. If they die intestate, the rules relating to statutory intestacy that would normally apply to spouses would not apply, but the issue, including adopted children, would be treated in the same way, under statutory intestacy.

In relation to the special guardianship orders, we have not made any specific provision for inheritance rights. Obviously, it would be open to special guardians to dispose of their property in accordance with their testamentary disposition.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

To focus on the last point, will not complicated questions arise on the dissolution of an unmarried partnership in which both partners had jointly entered into a special guardianship of a child?

Sandra Walker:

Those are issues that we will need to look at in the context of registered partnerships. At the moment, they do not exist. When we talk about joint residence orders and joint special guardianship orders, we are talking about couples doing those jointly and orders being made jointly, not in terms of a registered partnership that adopts—or, sorry, in whose favour a special guardianship is made.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

It seems that we are putting another layer of legal complexity on to a child who has already had a lot of that in their life.

Photo of Kevin Brennan Kevin Brennan Llafur, Gorllewin Caerdydd

I accept that last point, but do not such situations arise all the time anyway with children born to unmarried couples who subsequently part? I accept the hon. Gentleman's point that the children are already going through a lot of legal processes, but the provision does not introduce totally insurmountable or unfamiliar problems.

Sandra Walker:

I would not dissent from that.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

How strenuous is the vetting system for the unmarried partner of an adopter? If you are not proposing to change the status quo in the Bill, are there any proposals to tighten it up? It is often the unmarried partner who is the threat where abuse of a child is concerned. Are you satisfied that provisions are strenuous enough at the moment?

James Paton:

I think that I am right in saying that the assessment process would look at the single person's relationships and would need to consider the background of someone with whom they were living. I believe that the Bill allows for new provisions for enhanced criminal record checks for adults living in the household of prospective adopters. The Bill allows us--[Interruption.] Ms Morgan is saying that there is an obligation under the 1983 regulations to conduct background checks on adults living with prospective adopters. We would want them to be thoroughly checked.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is nothing new; you are going back to 1983. What has changed in the past few years, or has nothing changed?

James Paton:

We would expect, under existing regulations, that the background of the person in the prospective adoptive house would be checked. That is an obligation under the 1983 regulations on adoption agencies that we would expect to continue.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Yes, but everyone living in the household must be checked at the moment; we know that. I am saying that there is a case for making more strenuous checks of the unmarried partner. If both are not open to the initial vetting process because both cannot be the unmarried adoptive parent, are you going to balance that by making more rigorous vetting of the unmarried partner who cannot be the adopter because you are keeping the status quo in the Bill?

James Paton:

We would expect them to be checked out, but it is fair to say that we are having a fundamental review of the whole assessment process, so we could look at that. My understanding of agency best practice at the moment is that in reality both will be assessed in the same way. A stable partner will be scrutinised during the agency's assessment process.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Mr. Dawson, do you want to ask a question?

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

Surely you have shown the nonsense, Mr. Paton, of not going ahead with allowing unmarried couples to adopt. Current practice is--I was following it until a year ago--that both partners are assessed in exactly the same way as if they were both adopting. By not putting the provision in the Bill, we are denying the presence of proper legal safeguards and the ability for us to be sure that that is so.

James Paton:

I think that, as I said at the beginning, the Government believe that the proposals are broadly right, largely for the reasons that the adoption law review set out: the increased chance of providing stability and security in the joint adoption of a child when there has been a legally recognised public commitment between the two partners. However, again, as the Secretary of State said, we shall be interested to hear views at the Committee and it is right that there should be a debate on the matter.

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

Given that view, is there not a gross inconsistency in special guardianship, which confers parental responsibility and is, therefore, a significant option for permanency, being open to unmarried couples?

James Paton:

I do not believe that there is. First, special guardianship is clearly not adoption. Adoption is a complete legal transfer from one family to another; special guardianship retains the legal link with the birth parents, who retain parental responsibility. Secondly, adoption is irrevocable, whereas a special guardianship order can be revoked. It is a different order of legal permanence and security, so I do not believe that a direct analogy can be drawn with a transfer of parental responsibility.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

One thing that has come out of this exchange is that I am slightly concerned that we do not know what special guardianship involves in the round. The matter arose in relation to inheritance law, for instance. Might it not be helpful if a paper were prepared identifying the different areas that must be considered? We could then consider whether it is appropriate that inheritance, for example, should be addressed in the provisions. We do not really know. This is a whole new area.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

Do you want to respond to that point, Mr. Paton? Is it possible to give further information to the Committee on that area—by Friday, perhaps?

James Paton:

Of course that is possible. I am quite happy to give a fuller explanation of what special guardianship involves—that would be valuable. This is a new area, which I am conscious the Committee did not have a chance to get into in detail because of the general election. We are interested in people's views on it, so we will certainly provide you with that.

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

We should be very grateful.

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

On the registration of private fostering, is the Department satisfied that schedule 7 of the Children Act provides satisfactory protection to children who are privately fostered?

Mark Ferrero:

We acknowledge that the issue of private fostering is important and of concern. The difficulty lies in social services departments knowing that a private fostering situation exists.

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

The Department of Health does not know how many children are privately fostered—it is estimated at 8,000 to 10,000—so we do not know where they are or where they are living.

Mark Ferrero:

We do not have reliable data. It is a very difficult area on which to get reliable data.

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

The key test for legislation is whether it works. From what you have said, from the evidence that we have received and from my experience of working in a social services department, existing legislation does not work. Would you agree with that?

Mark Ferrero:

The Children Act provides a framework of protection for children in the community and places duties on local social services departments to protect the interests and safety of children in their area. I assume that you are referring to the proposals in the report that was recently published by the British Agencies for Adoption and Fostering on private foster carers being registered. However, it is difficult to see what would make private foster carers register when they do not notify.

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

It is not just BAAF that makes such comments; Sir William Utting's report and Lord Laming's report—in 1993, I think—on the social services inspectorate say that also. The proposals are not new. On whether people would register if there were registration, as is proposed, one could ask the same about childminders. Has the Department considered the fact that we require childminders to register with Ofsted, but we do not have the same registration scheme for private fosterers? Children are looked after for part of the day by a childminder; privately fostered children are cared for for years, and nobody knows where they are.

Mark Ferrero:

The critical point is that the local social services department knows that the arrangement has taken place. The legal framework currently requires private foster carers to notify their local authority that they have taken a child into their care. If the child leaves their care, they are required to notify the authority and say where the child has gone. The problem is one of professional and public awareness of the current legal framework. Once a local authority is aware that a child is in a private fostering arrangement, it has duties to visit the child on a regular basis and look after its safety. The critical point is to improve public and professional awareness of the duty to notify, and to make people aware of the offence that goes with the failure to notify.

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

But that simply has not happened. I know that there have been publicity campaigns, such as a leaflet, but we have not seen an improvement. We are talking about a vulnerable group of children, so the issue must be about private foster carers notifying the local authority, which is not happening. Surely the state should be coming at this matter from the other way, too; it does so for childminding and day care, but not for private foster carers. Have you had a discussion with the Local Government Association about the mechanics of setting up a registration scheme?

Mark Ferrero:

I do not honestly know the answer to that, but I am sure that I can get a note about it.

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

Could you explain the problem to me? It seems that we are not talking about a vast number of children. Childminders are registered and the very informal arrangements of the past for looking after children have been brought under statutory requirements. What is the problem over private fostering?

Mark Ferrero:

Essentially, we are dealing with private arrangements. There is a balance to be struck between a private arrangement and the role of the state in such circumstances. We have a legal framework in place that requires notification of these arrangements. However, we have still to raise general public awareness. We just referred to a leaflet that was aimed at professionals. It was aimed not only at social services professionals, but at all professionals that come into contact with children in the community, such as health care professionals and so on. We need to raise public consciousness of the need to notify a private fostering arrangement to the same level as it is on childminding. Everybody knows that the local authority has a legitimate role in childminding. There is not a good general public awareness of the need, the role and the responsibility of social services in private fostering cases.

To go back to the registration point, I still am not convinced that creating a registration arrangement would mean that more private foster carers would come forward to be registered. If they do not notify now, what in a registration scheme would make them come forward to register?

Photo of Mr David Hinchliffe Mr David Hinchliffe Llafur, Wakefield

I am conscious that this is an important area, and there will be opportunities to pursue it later in Committee. May I thank our witnesses for their contributions, which have been most helpful? Mr. Paton, would you mind remaining at the Table, as last time, because, as you know, we like your company and appreciate your advice on technical points. Thank you very much, ladies and gentlemen.

The witnesses withdrew.