Clause 1 - Considerations applying to

Adoption and Children Bill – in a Public Bill Committee am 4:30 pm ar 27 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed [this day]: No. 1, in page 2, line 14, leave out `religious persuasion, racial origin and cultural'.—[Mr. Walter.]

Question again proposed, That the amendment be made.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

With this it will be convenient to take the following amendments: No. 19, in page 2, line 14, leave out from `the' to end of line 15 and insert `child'.

No. 24, in page 2, line 15, after `background', insert

`, subject to the proviso that such consideration shall be secondary to the matters to be considered in subsections (2) and (3).'.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

I was cut off in full flow and will recap only briefly. Due consideration is important, and it is important also that social services departments have clear guidelines about what that means in practice. A fine balance must be struck between trying one's best to find the best placement and perhaps not succeeding with some of the aspects that might be deemed important. Obviously the greater emphasis on what is right for the child—his being adopted quickly—will come into play.

I challenge the hon. Member for North Dorset (Mr. Walter), who said that if a child was a baby, religious background and ethnicity did not really matter. Certainly if the child has been baptised into the Christian faith, the birth parents and others who belong to churches would challenge that most strongly. I cannot answer for other faiths, but I suspect that believers of other faiths would have similarly strong views on the matter. I do not believe that the matter is unimportant.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Judaism was mentioned previously. A child is of that faith if the mother is of that faith, regardless of whether the child is circumcised. In some ways, the same point that the hon. Lady makes applies in respect of Christianity.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

I thank the hon. Gentleman for that clarification. I had finished my comments, but I felt that I needed to flag that point up.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I tabled amendment No. 19, which is similar to the amendment tabled by my hon. Friend the Member for North Dorset, but would remove the words after ``child''. My hon. Friend explained his case well. We are trying to simplify the clause. We all know that it is essential to state that the interests of the child are paramount but, as my hon. Friend said, it is a mistake to try to be too specific. We are trying to ensure that common sense prevails. As my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) said, clause 1(4)(d) makes it perfectly clear that a child's background and other matters are extremely important.

My hon. Friend the Member for North Dorset was perhaps too polite about the clause, which has too much political correctness in it. I was pleased when the hon. Member for Erewash (Liz Blackman) said that she was against political correctness creeping into the Bill.

Photo of Liz Blackman Liz Blackman Llafur, Erewash

I emphasise again that that is precisely why I support the wording in the Bill, because it does not give that consideration priority. Ultimately, all the issues involved must be weighed up, balanced and given due consideration. Nevertheless, it is an important issue.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I agree that the matter should be weighed up and considered. Surely we can be confident and have faith that common sense will prevail, which is why it is a large error to make the clause too prescriptive. We have all heard examples of potential adoptive parents who would be very relieved to have an adopted child of any race or cultural background. The child's interests must be paramount, and if a child of Afro-Caribbean, Asian or Chinese background can be found parents of the same background, that is the ideal solution. However, there may not be adoptive parents available from the same background. I am concerned that children should not remain in foster care if loving parents are available to adopt them, whatever their race or cultural background.

People who have entered the adoption process—I do not intend to talk about my experience; I declared my interest at the beginning of the Committee and said that I may be one of the groups of adoptive parents who may benefit from the Bill—know that such a course is not entered lightly. It takes over one's life and is entered only after making a deep commitment to adopt a child. My wife and I entered the process with a deep commitment to adopt a child, but not a child of a particular race. Many adoptive parents assume the same attitude.

The hon. Member for Chatham and Aylesford (Mr. Shaw) asked whether Conservative Members had been contacted by organisations and bodies that were worried about the clause and asked why that matter was not discussed during the witness sittings last week. Such bodies have approached us. The Opposition do not want to cause trouble but we are anxious for Ministers to carefully examine restrictions that might result from the clause.

I tabled amendment No. 19 to make the clause less prescriptive and to try to ensure that common sense prevails, rather than having a wording that could be over-zealously, or wrongly, interpreted.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I may, perhaps, help the Committee by speaking to amendment No. 24, which is in my name and that of my hon. Friend the Member for Canterbury (Mr. Brazier), who cannot be present this afternoon.

We have heard about balance, and the hon. Member for Lancaster and Wyre (Mr. Dawson) talked of adopting a humane proposition. I agree largely with the points of my hon. Friends. My more balanced amendment echoes the words of the Minister of State, Department of Health, the right hon. Member for Barrow and Furness (Mr. Hutton) on Second Reading on 26 March when my hon. Friend the Member for Canterbury raised the matter of the ethnicity and religious considerations in the Bill. The Minister made it clear that people have strong views on this difficult matter, and said:

``Ultimately, however, we have made it very clear that we believe that there should not be unnecessary and unacceptable delay in the process. If that is one of the issues that can give rise to delay, the Bill should address it.''—[Official Report, 26 March 2001; Vol. 365, c. 705.]

That is precisely the aim of amendment No. 24. I have taken issue with what we would call the politically correct considerations of subsection (5), and, while keeping them in, have made them subject to the major considerations of paramountcy and delay in subsections (2) and (3).

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

``Politically correct'' is a term that is bandied about so much that it becomes a term of abuse. Will the hon. Gentleman justify his use of it in this circumstance?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I will endeavour, by reading submissions, to give examples of occasions when, in the past, such considerations have been used as politically correct obstacles to various types of adoptions. During the Clinton era in the United States, the law was specifically changed. We all agree that delay is a major problem, and that it needs to be reduced. The average time taken for the adoption of children in care has decreased, but only from two years and 10 months to two years and nine months. It is especially crucial that early years adoptions should be completed as soon as possible, with all due considerations that we have discussed.

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

If the hon. Gentleman is using those figures as a foundation for his argument, it is important to split up the various different age groups. The adoption process for newly born children is generally swift, whereas it takes longer for older children, whom it is much harder to place. If one takes an average, one arrives at the time scale to which the hon. Gentleman referred. However, we should consider the detail rather than taking a broad-brush approach.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I entirely agree with the hon. Gentleman, which is why we raised concerns earlier, and will continue to do so later, that the Bill contains no fast-tracking facilities for younger children. In fact, I gather that the latest figures show that there has been a decline in the time that it takes for children who are less than one year old to be adopted. That situation has been reversed. Of course the hon. Gentleman is right that different applications exist for different types and ages, and for the complexity of problems of the children involved. I just gave the average overall figure that is used in Government research and in the White Paper, and I have applied that to the general principles in subsections (2) and (3).

Part of the problem is that the clause tries to translate section 22(5)(c) of the Children Act 1989, which refers to

``the child's religious persuasion, racial origin and cultural and linguistic background.''

The attempt to parrot that in the Bill has led to difficulties. Those difficulties have been emphasised by the Government, because there is no clear prioritisation of the considerations in clause 1. It is an important clause, which cuts at the principle of the Bill. That is why we continue to discuss it in such detail. However, there is no clear interrelation between the paramountcy subsection, the delay subsection and what is referred to, colloquially, as the welfare checklist in subsection (4), and subsection (5), which introduces what we would call politically correct considerations. I am not sure which dominates the other. The amendment is therefore intended to help by specifically identifying that the considerations in subsection (5) should be subservient to those in subsections (2) and (3).

Photo of Kevin Brennan Kevin Brennan Llafur, Gorllewin Caerdydd

Is it not clear from subsection (1) that the paramountcy consideration is at the top of the tree? How can his amendment make sense in relation to subsection (2) in insisting that a consideration shall be secondary? How can anything not be secondary if the consideration in subsection (2) is paramount?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 4:45, 27 Tachwedd 2001

That does not answer the point that paramountcy is identified in subsection (2), as we have made clear, but with conditions attached to it. Somebody has to make a discretionary judgment about how far, and to what extent, the considerations in subsection (5) should come into play. The way in which the clause has been phrased and constructed does not make it clear how much emphasis should be placed on subsection (5). We can argue about that as much as we like, but it will be the professional lawyers, in court, who will have a field day because of that sort of lack of clarification.

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

Does not the hon. Gentleman accept that what he is seeking is impossible to achieve, and that we are dealing with an extremely complex subject about the individual needs of children in special circumstances? Is not the weighing of the balance within the framework of legislation the complicated task of social work?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I agree. The entire Bill, and, in particular, the legal clauses that address the systems of adoption, are exceedingly complex. The Committee must thrash the matter out to make it as clear and explicit as possible. That is why we have argued, to no avail, that the Committee requires more time than has been made available. The fact that we are still talking about clause 1, in the second of 20 sittings, suggests that there are some fundamental principles that need to be clarified. I hope that the Minister will be able to provide clarification.

The evidence of Dr. Peter Hayes of the university of Sunderland was submitted to all Committee members. He devoted an entire page to pointing out the problems with subsection (5). He confirmed what I have said by stating:

``It repeats the mistake of the Children Act in giving sanction to the ideological agenda of those child care professionals who are obsessed with ethnicity.''

That is the way in which Dr. Hayes expressed that point. He went on:

`` `Due consideration' with its connotations of judicious balance may sound like a fine compromise . . . But enshrined in law, these same words will be interpreted to mean `paramount consideration' by some social workers''

or child lawyers in court. He then writes:

``If this paragraph becomes law . . . past experience and logic suggest that it will have the following results''.

He is querying, as am I, the paramountcy relation, with regard to subsection (5). The implications of that, as Dr. Hayes describes them—I agree with a fair amount of what he says—are as follows:

``It will delay the placement of all children, but especially minority children, by needlessly subdividing and restricting the parent pool . . . It will prevent placements. Restrictive policies will mean that some children cannot be placed at all . . . It will disrupt placements. Children in transracial foster placements will be unreasonably removed when the foster parents seek to adopt the children in their care . . . It will justify ignoring the wishes of some minority children . . . It will bolster informal local authority policies of deterring parents who wish to undertake an intercountry adoption . . . It will contribute to the (often correct) perception of potential adoptive parents that to pass an adoption assessment they will have to jump through hoops, mouth things they do not believe. This deters parents from coming forward . . . It will justify the unnecessary rejection of potential adoptive parents and existing foster parents deemed to respond `inappropriately' to questions on ethnicity.''

Added to all that, the research does not suggest that ethnic—or similar—matching produces better results; there is a substantial body of research that suggests the opposite conclusion. Barbara Tizzard has conducted extensive research on transracially adopted children that shows that mixed-race children adopted by white families—this point applies to other permutations—were the most intellectually gifted of the adopted children, with reading attainment generally above average, while their problem scores did not differ from those of white children.

The work of Barbara Ballis Lowe is also important. In an article that was published a couple of years ago, she said that the available outcome data shows that, by and large, children in transracial or transethnic placements do as well with respect to indicators as do children in same-race placements.

I return to my reference to what has happened in the United States. The Multi-Ethnic Placement Act 1994—which was amended in 1996 by the Inter-Ethnic Adoption Provisions enacted by the United States Congress—aims to lessen obstacles to transracial and overseas adoption, with respect to agencies receiving federal assistance, by deleting race, ethnicity or national origin as criteria determining the best interests of a child available for fostering and adoption placements. Those measures are the opposite of those in the Bill, which, from the records of child courts, have not proved a great success since the Children Act 1989.

One of the Minister's own colleagues, the right hon. Member for Brent, South (Mr. Boateng), said that when he took part in the debates on the Children Act 1989, he argued that it should be amended to facilitate rather than to exclude transracial or transethnic adoption as an acceptable means of placing abandoned and/or abused children in permanent homes. One of the Minister's own colleagues, therefore, argued in support of the same considerations that we are promoting in our amendments. For those who argue the opposite, the benefits of what I gather is technically known as ``identity essentialism'' are thought to exceed the advantages of being fed, clothed, housed, schooled and emotionally supported by adoptive parents and siblings representing a different race or ethnic group. That is what we are debating.

The paramount consideration is the child's welfare. If there are circumstances in which a child could be more readily, speedily and effectively adopted by adoptive parents with different ethnic and religious backgrounds, subsequent considerations should not rule out that adoption. That may not happen in every, or even most, circumstances, but that is the case that I am making, and the point that my hon. Friends have made in their amendments. That is why I tabled the amendment with the balance referring back to earlier considerations in subsections (2) and (3). Far from confusing the issue, I believe that it explains it rather more clearly. Children's lawyers have been having a field day with the version in the Children Act, and will continue to have a field day if we continue with the terminology in the Bill without the qualifications that I propose.

I wish to refer to the Government White Paper on adoption that started off the whole process. Section 2.16 states:

``Each case should be judged on its merits and the needs of children considered''—

that should be the major consideration, regardless. It should not be dominated or subverted by politically correct considerations that were inserted willy-nilly into clause 1(5) without any clear indication of their order of priority against the other considerations in the clause. That is the point behind the amendment, and I hope that the Committee will consider its merits.

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

I have only a few comments to make. I do not believe that the clause is politically correct in the way that the hon. Member for East Worthing and Shoreham describes. As I said in an intervention on my hon. Friend the Member for Lancaster and Wyre, taking account of ethnicity, racial origin and religion is part of an assessment, not an add-on. It is an important part of an assessment, and we have not heard anyone suggest during our entire Committee proceedings that it could represent such a hurdle that it would prevent a child from being adopted by a couple of another ethnic origin. However, one cannot ignore the testimonies of people who have been brought up in different circumstances.

The hon. Member for East Worthing and Shoreham said that he wanted to strike a balance. In doing so, he should also present the other side of the argument. There are many testimonies from people who have been brought up in an environment different from that of their own race, such as those of black children put into white middle-class areas where they feel different from their families, friends and local community, especially as they grow older. It is absolutely true that there are many stories of black children who bleach themselves in baths because they feel that they do not fit in. I have spoken to young people who have had such experiences because they felt that they did not fit in.

An adoption may have been made with the best intention, but if we delete the provisions, we will turn the clock back—

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

Certainly not. I wish that the hon. Gentleman had heard the testimonies of youngsters brought up in such environments. They would not thank him for attempting to remove the provisions.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I sympathise with people in the circumstances to which the hon. Gentleman refers, but those circumstances would not be brought about or encouraged by the amendment. They would still be subject to the paramountcy principle of the child's welfare. If the people who performed assessments deemed that children would be put in circumstances so horrendous that they found it necessary to bleach their skin and so on, such adoptions would not go ahead. The paramountcy principle would still prevail, so the amendment would not take away from the aims of the Bill. It would merely provide an additional consideration.

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

The clause requires the adoption agency to give due consideration. I challenged an Opposition Member earlier to say which of the agencies of which representatives came before us in earlier sittings advocated removal of the provisions. The written evidence presented to us contained nothing on the subject. If the issue was of paramount importance, and it is key for Opposition Members, why did they not test their beliefs with professionals? There was ample time, and the Chairman, my hon. Friend the Member for Wakefield (Mr. Hinchliffe), repeatedly asked whether hon. Members wanted to raise any other issues. Not once did Conservative Members mention the issue, which they say is now so important to them.

The amendment would wind the clock back to a time when a bad practice that disregarded people's ethnicity prevailed. We need to learn the lessons from inappropriate placements. As the hon. Member for East Worthing and Shoreham said, we need to learn the lessons of political correctness. I do not especially like the term, but we know what it means. My hon. Friend the Member for Stockport (Ms Coffey) told us at an earlier sitting that, when she was a social worker, she had to find a parent who was one quarter Pakistani and found it virtually impossible. We do not want that. We do not want inappropriate placements, or a hurdle so high that it creates a delay and an impossible task for the social services. The clause strikes a balance.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence) 5:00, 27 Tachwedd 2001

An underlying theme of the Bill is uniformity of best practice. A problem with existing adoption law is that the level of service is determined by where one lives. It is like postcode prescribing. One might have a good service, a poor service, or even no service at all, so it is not a bad thing to cover these issues in the Bill. We heard earlier—and will hear again, I am sure—that it is not good to defer too much to secondary legislation and that this Committee should deal with such concerns.

The clause states clearly that ``due consideration'' must be given; it is only right that that should be so. As a person whose first language is Welsh, I welcome the fact that linguistic background has been included. It is an important issue in many parts of Wales. Many other languages are spoken in the UK, and they can be important from an early age.

The hon. Member for North Dorset gave the example of a young child as a reason for opposing the subsection. The hon. Member for Erewash more or less stole the Minister's thunder. Clause 1(2) states the paramountcy principle, with which we all agree. We then go on to subsection (4)(d), which clearly lists factors such as

``the child's age, sex, background''.

Thus, the matter of age is dealt with at that point, possibly with a bit more emphasis on it than when we come to subsection (5). It may be that the hon. Gentleman's genuine misgivings are ill founded.

I am not one of those people who regularly signs up to a politically correct agenda, whatever that is. We know of examples of bad practice; that is why we are debating improvements in the Bill. However, it is important to get as much as we can in the Bill, because that will inform good practice. The one thing that we in the Committee want to ensure is that our legacy promotes good practice in the future. On that basis, I strongly disapprove of the amendment. The argument for it has been sincere and well presented, but it is preferable to refer to such matters in specie in the Bill rather than once again allowing a situation in which good practice will be adopted in some places but not in others.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I do not want to enter into the politically correct debate, which has gone backwards and forwards several times. I accept that there are circumstances in which faith or language, as the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said, may be relevant factors in determining how someone should be placed. A three-year-old could have been brought up in an extremely religious environment. Whether or not the parents had abused the child and, in effect, prepared the way for adoption does not affect whether the child is still observant of its faith. I accept that it can be a relevant issue, albeit in a minority of circumstances in this day and age.

The key point made by my hon. Friend the Member for East Worthing and Shoreham was that it is a question of speed. The phrase that he used was ``facilitating, not excluding adoption''. The problem is that the clauses could be used to slow down the process of adoption, which we want to see speeded up. Might it not be a wise approach to say that, if a child's background is such that it should be a relevant consideration and they have been placed on the national register, the ethnic aspects that should be taken into consideration will have been advertised? If someone does not reply to the advertisement within a set period, an effort has been made, but has failed. Perhaps we should then move on and the question whether this is an important issue should be considered differently. If an effort has been made to advertise the ethnicity, but a placement has still not become available within a set time, ethnicity should become a less important issue. Getting the adoption moving should then become the more important issue.

My only other point relates to the drafting. Clause 1(4) and (5) appear to say much the same thing. I note that the ``must have regard'' provision in subsection (4) applies to both courts and adoption agencies, whereas subsection (5) applies only to adoption agencies. On the basis of subsection (4), I do not see a need for subsection (5), but as they are both in the Bill, why cannot the wording of the two be made compatible?

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

We have returned this afternoon to a lively debate, which is getting to the heart of some of the important issues relating to the legislation. However, the debate on amendments Nos. 1 and 19 has been less about what hon. Members want in the legislation and more about what they want to remove. I have some problems with that, which I shall come to later. The arguments on amendment No. 24 are more complicated, but I shall address those, too.

The argument for amendments Nos. 1 and 19 is that the Bill should not mention a need for the adoption agency to give due consideration to religious persuasion, racial origin and cultural and—if we understand the amendments' intention correctly—linguistic background. That would be a backward step in terms of the approach that we want and the balance of issues that should be considered, with certain provisos about paramountcy and the weight that they are given.

It is important that subsections (3) and (5) be read together. That is their legal effect. The obligation in subsection (3) on adoption agencies to have regard to the potentially harmful effects of delay is an overarching provision that applies across all decisions relating to the adoption of a child, including the placement decision.

I spoke previously about some of the other action that the Government are taking, alongside the Bill's provisions, to ensure that delay is minimised. Those aspects show how important the Government consider the need to minimise delay. I shall return to that and to how else we can ensure that subsection (5) does not lead to disproportionate delay.

It is useful to refer back to subsection (2), which states:

``The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.''

That is the pre-eminent subsection of clause 1. It overrides all others, which addresses some of the concerns expressed by hon. Members. The child's welfare is paramount, so if the other checklist factors outweigh those in subsection (5), welfare comes to the fore. In other words, subsection (2) makes it clear that other considerations should be outweighed, so the balance is decided on the basis of the welfare of the child. If the paramountcy principle is the most important and overriding one in the clause, it is crucial to maintain it.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

Will the Minister confirm that she used the term ``checklist'' intentionally? I used it in my speech and was surprised that she used it. Is she suggesting that adoption agencies use a checklist of factors?

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

No. It may be worth explaining, as the hon. Member for East Worthing and Shoreham said earlier, that subsection (4) has become known colloquially as the welfare checklist. If the hon. Member for North Dorset is suggesting that adoption agencies should avoid the tick box or checklist approach, I wholeheartedly agree with him and did not want to imply anything different.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

As she says, the term ``checklist'' is a colloquialism, but it is a term used on page 8 of the Government's explanatory notes. What other parts of those notes are colloquial rather than what was intended?

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

I do not think that I said that it was colloquial or necessarily wrong. I said that if the hon. Member for North Dorset was concerned about the implications of the term, that was not what I or the Government's explanatory notes intended to imply.

To continue my point about the paramountcy principle in subsection (2), subsection (5) cannot override that principle or the obligation to minimise delay. Adoption agencies will not be able to wait a long time to find a perfect match, which the hon. Member for Huntingdon (Mr. Djanogly) feared. Subsection (5) imposes a duty on the agency, in making a placement decision, to consider the listed factors—

``the child's religious persuasion, racial origin and cultural and linguistic background''.

The hon. Member for North Dorset suggested that the phrasing of the clause and current common adoption practice would preclude a child being adopted transracially. That is not true: it is neither the effect nor the intention of the clause. I shall explain later why the wording is helpful.

The hon. Member for North Dorset also asked whether age should be relevant to consideration of culture, religion and linguistic background. Of course a child's age may determine the extent to which due consideration is given to the background. That is part of the complexity of the position and it explains why clause 1(5) refers to ``due consideration''. In taking the child's circumstances into account, different weights may be attached to the listed factors. My hon. Friend the Member for Erewash made an important point, which is that they still have to be balanced with welfare under the rest of clause 1 and, dare I say it again, the checklist in subsection (4). We are talking about the balance achieved by the whole of clause 1. However, consideration of such factors must not occur at the expense of harmful delay. That is another reason why subsection (5) refers to ``due consideration''; it relates to the need to ensure that there is not undue delay.

The hon. Member for Romsey (Sandra Gidley) asked about the definition of ``due consideration'' and how we would ensure that local authorities did not use clause 1(5) as a means of delay. In law, due consideration is a subjective test and it will depend on circumstances. For example, more weight will be given to factors identified when the child is older. Our guidance makes the Government's position very clear, and it might be worth reading out the relevant section. I assure the Committee that circular LAC(98)20 ``Adoption—achieving the right balance'' contains statutory guidance for local authorities. It makes clear the harmful effects of delay, especially in such circumstances, and says:

``Choice of placement should take account of a child's previous family experience and his or her wishes and feelings . . . Placement with a family of similar ethnic origin . . . is very often most likely to meet the child's needs as fully as possible, safeguarding his welfare and preparing him for life as a member of a multi-racial society. These are, however, only some among a number of other significant factors and should not of themselves be regarded as the decisive ones. Where no family can be identified which matches significantly closely the child's ethnic origin and cultural heritage, the adoption agency's efforts to find an alternative suitable family should be pro-active and diligent . . . A child's concept of time differs considerably from that of an adult. The Government has made it clear that it is unacceptable for a child to be denied loving adoptive parents solely on the grounds that the child and adopters do not share the same racial or cultural background.''

That guidance is important in setting the context in which ``due consideration'' to those factors should be given.

The guidance is further backed up by the national adoption standards, which set our benchmark time scales to help agencies weigh up the question of matching versus delay, as I spelled out earlier. In particular, under standard A.8:

``Children will be matched with families who can best meet their needs. They will not be left waiting indefinitely for a `perfect family' ''.

I hope that that overcomes some of the understandable concerns that hon. Members have expressed about the extent to which the provision might lead to delay.

I can also give a more positive reason for the inclusion of clause 1(5). It was called for during the consultation on the 1996 Bill, when there were suggestions that we needed to refer explicitly to the issues that we are considering, such as linguistic, religious and racial background, because in many cases they can have long-lasting implications for the child, including in later life and in relation to their identity and their feelings about their background. My hon. Friends the Members for Chatham and Aylesford and for Lancaster and Wyre outlined that.

Race, for example, has lasting implications for children's views of themselves and their background. It will continue to be significant throughout the life of even a relatively small child. The hon. Member for Meirionnydd Nant Conwy—I hope that the Committee notices that I use his full title, unlike some hon. Members—noted that language might also be significant for some children.

I have outlined the balance that is achieved in clause 1—the paramountcy of the welfare of the child is always the determining factor in decisions. I have also spelt out the statutory guidance that makes clear to local authorities the need to minimise delays for matching decisions, and I have explained how we intend to promote that intention through our national standards, so I hope that it is clear that we do not believe that the inclusion of clause 1(5) will be detrimental to children; it may positively allow their backgrounds to be represented in the difficult decisions that adoption involves. For those reasons, I hope that Opposition Members will feel able to withdraw their amendment.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset 5:15, 27 Tachwedd 2001

We have had a useful debate. I hope that both sides can agree that this is a question not of political correctness but of what is best for the interests of the child. Heaven forbid that we get bogged down in debates about what is politically correct, or what that term means. I am often accused of being politically correct because of my views on anti-discrimination measures.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

I have just looked ahead and would like the hon. Gentleman to explain why he thinks that the wording is inappropriate, given that the same wording is in new clause 2, to which he has put his name? Is he not being inconsistent?

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

When we reach new clause 2, I hope that we will talk at length about whether that is politically correct. I will talk now about the amendment to clause 1 and I will answer some points that have been raised.

I am sympathetic to the point made by the hon. Member for Romsey about whether the fact that a child had been baptised into the Christian faith should be a factor. I come back to the point that that depends on the child's age. A child who is baptised at an early age—as often happens in the Christian faith—has been given a badge by the parents; the parents' background is reflected rather than the child's wishes and desires, which are unknown at that stage. Many children come from a background of no faith at all. We live in a secular society and when we are considering children for adoption, we should not become hung up on the matter. However, that does not mean that faith should not be taken into consideration for children who are a little older and more mature.

I was sympathetic to the point about the black child bleaching himself white. Certain factors must be considered when a child is placed for adoption into a racial background that is not its own, or into a multi-racial background. But as I mentioned in answer to an earlier intervention, there are many mixed-race marriages and partnerships in which that is simply not a factor. If it is dealt with sympathetically, it should not be a problem. Heaven forbid that people in adoption agencies should consider this matter at length. We can all probably quote examples of people who felt that they had problems in adopting because there was a mixed-race element to their circumstances.

In answer to the hon. Member for Meirionnydd Nant Conwy—[Interruption.]

He and I sat on the Welsh Grand Committee for three years, so I have no difficulty in remembering his constituency. If a child has already acquired language skills, that should be taken into consideration, but a babe in arms from a Welsh-speaking family who has not yet acquired any language skills should not be denied adoption into an otherwise perfectly suitable family environment simply because those people do not speak Welsh.

I am seeking to prevent the clause from being overly prescriptive. I feel that it should have a lighter touch, lest we develop a checklist mentality. I said at the outset that this was a probing amendment. It is a matter that we should keep in the forefront of our minds. We have had a good discussion. I beg to ask leave to withdraw the amendment.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

Does the hon. Member for North-West Norfolk wish to get to his feet, because as soon as I ask whether the Committee gives leave for the amendment to be withdrawn, he will not be able to speak to it?

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I want to seek permission to withdraw my amendment, too. I hope that we will return to this on Report. We have had an important debate. I am not particularly happy with everything that the Minister said. She addressed most of the points and she spoke fluently and sincerely about this issue. I should like to pick up on one point that my hon. Friend the Member for North Dorset made. Baptism is not carried out for the convenience of the parents or the family. It is a gift of the Lord. It stays with the child for ever. That is an important point. However, I will be withdrawing my amendment.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

The hon. Gentleman's amendment is not before us. We are debating amendment No. 1.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I want to address my amendment, so presumably I should wait.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

May I suggest that the hon. Gentleman addresses it now. We are debating amendment No. 1, which is grouped with amendments Nos. 19 and 24. If the hon. Gentleman wishes to press his amendment to a vote, I must take the opinion of the Committee on amendment No. 1 first. If he then wishes to move his amendment formally we can put it before the Committee. That is the correct procedure.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 5:30, 27 Tachwedd 2001

Thank you, Mrs. Roe. I will seek to help the Committee and explain why I will not press amendment No. 24 to a vote. I agree with my hon. Friends that this has been an informative debate. We have plunged into baptism and skirted around circumcision, two subjects that are closely related, but one of which is reversible and the other probably is not. However, the Human Reproductive Cloning Bill that was debated in the House of Lords on 26 November may lead us to think otherwise. The Minister has gone some way to addressing our concerns, and until she reached her closing remarks, I thought that she intended to support the amendment, because she seemed to agree with the thrust of my argument that the prioritisation of the first considerations in the subsections of clause 1 needed to be clearer. It certainly needs to be made clear that the considerations in subsection (5) should be considerations, not barriers.

Amendment No. 24 would achieve a balance, but the Minister's provisions go some way to doing that. It might better inform our discussion if such provisions were made available to the whole Committee.

It is legitimate that the phrasing of the checklist in the explanatory notes is confusing. It is widely referred to as the welfare checklist, but it needs to be dealt with in terms of the paramountcy and delay subsections of clause 1. The debate has helped to clarify some outstanding points. In the circumstances, I would not wish to press the amendment.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I beg to move amendment No. 20, in page 2, line 32, leave out subsection 8(b).

I will be brief, as we need to make more progress. Subsection (8) clarifies the purposes of clause 1:

``(a) references to relationships are not confined to legal relationships,

(b) references to a relative, in relation to a child, include the child's mother and father,

(c) references to the court making an order include its dispensing with parental consent.''

The amendment would simply remove paragraph (b); if a child's mother and father are not relations, we live in a bizarre world. Whoever drafted that paragraph did so with the right intent. However, I am a great believer in trying to keep statutes as simple and tidy as possible. There is no point in being verbose or legalistic, and the simpler we make the statutes, the better.

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

The hon. Member for North-West Norfolk (Mr. Bellingham) implied that we must live in a bizarre world. We live in a world where it is important for legislation to be accurate and clear about definitions. That is why I cannot accept the hon. Gentleman's amendment.

The amendment would remove the child's mother and father from the definition of a relative in clause 1, with the effect that the court or adoption agency would be under no obligation to consider the child's relationship with its parents, take account of their views or consider their ability and willingness to care for the child when making decisions in relation to the adoption of a child, including whether to make a placement order or an adoption order. That would not be appropriate, right or in the interests of the child.

Children who are adopted today are generally not babies, as we know. The average age of those adopted from care is four years and three months. Whatever the background of the case, those children will have formed a relationship with their parent or parents which, in the child's interest, the court must consider. It cannot be right for the courts not to be obliged to consider the views of the parents in coming to as far-reaching a decision as whether to make an adoption order. That may not have been the intention of the hon. Member for North-West Norfolk in moving the amendment, but that would be the effect of passing it.

The hon. Gentleman is probing the definition of ``relative''. The definition in clause 1 must include the child's mother and father in such an explicit way, because the definition of relative in clause 129

``means a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage.''

That definition does not include the child's mother and father, because relative is more narrowly defined in the rest of the Bill, where separate references are made to the parents. For the reasons that I outlined, it would be crucial for the court to consider the relationship with the child's mother and father, which is why we need a specific inclusion in subsection (8)(b). To exemplify a little further, the reason for the different definition is that, in many places—as the hon. Gentleman will note—the Bill refers to parents and to relatives. For example, the restriction in clause 82, does not apply if

``the proposed adopters are parents [or] relatives''.

The Bill refers to relatives separately in clause 126 and to parents in chapter 3. ``Relative'' and ``parent'' are defined separately in the Adoption Act 1976, and the need to ensure in clause 1 that the definition of relative includes parents is the reason for the specific wording of subsection (8)(b). I hope that, with that assurance, the hon. Gentleman will be able to withdraw the amendment.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I am grateful to the Minister for her explanation, and it makes the situation clear. In my eight years at the Bar in which I was working on a certain amount of family law, I cannot remember one example of a court not including mother and father in the definition of relative. In the light of the Minister's concerns that the change would lead to problems, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the bill.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

With this it will be convenient to take new clause 2—Considerations applying to the exercise of powers—

`(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child other than in proceedings under Part IV of the Children Act 1989.

(2) The child's welfare throughout his life shall be the paramount consideration.

(3) At all times when any question with respect to the adoption of a child arises, the court or adoption agency shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(4) The court or adoption agency shall have regard in particular to—

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him (throughout his life) of any changes in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) the relationship which the child has with relatives (including mother, father, siblings or half-siblings) and any other person in relation to whom the court or adoption agency considers the relationship (legal or otherwise) to be relevant, including:

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the capability of any such person to meet the child's needs,

(iii) the wishes and feelings of any such person regarding the child.

(g) the range of powers available under this Act and under the Children Act 1989 and the principle that the court shall not make any order unless it considers that making the order would be better for the child than not doing so.

(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background, subject to the proviso that such consideration shall be secondary to the matters to be considered in subsections (2) and (3).

(6) In this section, ``coming to a decision relating to the adoption of a child'' in relation to a court includes—

(a) coming to a decision in any proceedings other than those under Part IV of the Children Act 1989 where the orders that might be made by the court include an adoption order or placement order or the revocation of a placement order or an order dispensing with parental consent,

(b) coming to a decision about granting leave in respect of any action which may be taken by an adoption agency or individual under this Act other than the initiation of proceedings in any court.'.

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

We have rightly had a lengthy debate on amendments to clause 1, because it sets out the heart and overarching provisions of the Bill. As detailed in our White Paper ``Adoption: A New Approach'', the Government believe that children should come first in adoption and that their interests and welfare should be the paramount consideration. Clause 1 enshrines that principle in law and contains key overarching provisions that apply to the rest of the adoption provisions of the Bill. Whenever a decision is taken on the adoption of a child under those provisions, courts and adoption agencies will be bound by the obligations set out in clause 1. It makes the child's welfare the paramount consideration for a court or adoption agency and brings adoption legislation into line with the Children Act 1989. It was included in the 1996 draft Bill and has been widely welcomed.

One important difference from the 1989 Act is that the court or agency must consider the child's welfare throughout his life. That recognises the lifelong impact of adoption. We debated the issue of delay, and the Government are determined to bear down on harmful delays in the process, which is why subsection (3) obliges courts and adoption agencies to bear in mind at all times that, in general, delays in making a decision is likely to prejudice the child's welfare. In a manner similar to section 1 of the Children Act, subsection (4) provides a checklist—I use that word again, but perhaps we need to think about our phraseology—of issues that courts and agencies must consider in determining the child's welfare. Although similar to the list in the Children Act, the checklist includes factors that the Government believe should be taken into account in arriving at any decision on the adoption of a child.

We will come to the question of the relationship between the provisions in the Children Act and the proposals in the Bill when we debate new clause 2. Would it be appropriate, Mrs. Roe, for me to deal with issues relating to new clause 2 now?

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

We are considering new clause 2, so if the Minister wants to mention those issues, this is the time to do so.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The Minister is thinking, ``I don't know what I'm going to say.''

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

The hon. Gentleman is concerned that I might undermine what will clearly be a wonderful speech from him in favour of new clause 2. Nevertheless, Mrs. Roe, I shall follow your advice and consider it in a moment.

The checklist in clause 1 is specially tailored to adoption. The matters to which the court or agency must have regard include the child's wishes and feelings according to their age and understanding—we have had a significant debate on that issue today—their sex, background, age, particular needs and any other characteristics that the court or agency consider relevant. They must also take account of adoption's impact on the child; the impact of leaving their family and becoming a member of a new one, which is of particular importance in considering the Adoption and Children Bill; any harm that the child has suffered or is at risk of suffering; the child's relationship with their relatives or any other person that the court or agency considers relevant; the prospects of that relationship continuing and its benefits to the child; the wishes and feelings of relatives or relevant persons; and the ability of such persons to provide the child with a secure home and otherwise to meet their needs.

The clause makes the child's welfare the paramount consideration in all decisions, including whether to dispense with the birth parents' consent to adoption of their child; I suspect that we will be considering that issue in more detail when we reach clause 50. Subsection (5), which we debated in the last half an hour or so, provides that in placing a child for adoption, agencies must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background. We have had a good debate on the reasons for that provision and I do not intend to add to it now.

In giving due consideration to those factors, agencies will of course be bound by the obligation under subsection (3) to bear in mind the prejudicial impact of delay on the child's welfare and, in that regard, they will have to strike a balance. The clause further provides that the court may make an order—such as an adoption or placement order—only if it considers that to do so would be better for the child than not to do so. The court must consider all its powers under the Bill and under the Children Act, including its alternative courses of action. Those points follow the principle set out in the Children Act, and ensure detailed assessment of the alternatives that should be taken into account in considering the child's welfare.

As we discovered during the very useful debate on the amendments, clause 1 deals with many important issues and, as I suggested earlier, is at the heart of our approach to this major reform of adoption. In setting out in clause 1 the paramountcy of the child's welfare and other issues, we believe that we have achieved the right balance in relation to the difficult decisions that professionals and courts have to make about the child's placement.

I want to explain why we oppose new clause 2, which, although I have not had the privilege of hearing the hon. Member for East Worthing and Shoreham explain why it would be a good thing, seems to seek to replace clause 1 with another version that draws heavily on the wording of section 1 of the Children Act. Clause 1 is modelled on section 1 of the Children Act in order to achieve our objectives of broadly aligning the principles of the legislation. The proposal has been specifically tailored for adoption and applies whenever a court or agency is coming to any decision about the adoption of a child.

In seeking directly to follow the Children Act, the new clause would undo some of those important changes. Moreover, it is inappropriately structured. The reason for the difference in our approach is that section 1 of the Children Act applies only to the courts, whereas much of clause 1 also applies to adoption agencies. The new clause does not take that into account effectively. Subsection (4) applies both to courts and adoption agencies, whereas the Children Act checklist applies only to courts.

The new clause mixes references to the duties on courts and adoption agencies and misses the target in several respects. For example, under proposed new subsection (4)(d), the adoption agency would no longer have to consider the child's age, sex, background and other relevant considerations. That cannot be right. The change would narrow the range of needs that the court or agency has to consider. The formulation in clause 1 was intended to allow agencies and courts to focus on any of the particular needs of the child, whatever their nature; for example, their religious, linguistic or cultural needs. In contrast, proposed new paragraph (c) is wide and unspecific in referring to any change in circumstances. Clause 1 applies to a decision on the adoption of a child, hence the wording in subsection (4)(c), which focuses the court and agency on the lifelong effect of adoption.

Proposed new subsection (4)(f) gives a limited definition of relatives that is unnecessary, as the Bill already includes siblings and half-siblings. It also suggests that subsection (4)(f)(ii) be shortened to remove references to considering relatives' willingness, as well as their ability,

``to provide the child with a secure environment in which the child can develop''.

We included those words in recognition of the special importance in adoption cases of considering the child's needs for permanence, security and stability, and not only whether their general needs can be met. The parent's willingness and ability to provide such an environment is likely to be a central point in cases where the court is considering dispensing with parental consent. That is another reason why subsection (4)(f)(ii) obliges that it be given explicit consideration.

Finally, new subsection (4)(g) is in the wrong place. It does not belong in the checklist, because it concerns the court's powers, not the child's welfare, and it is not relevant to adoption agencies in so far as it relates to the making of an order. That is why clause 1 locates the matter separately in subsection (6).

I await with interest the hon. Gentleman's explanation of the objectives of new clause 2. However, I would argue that the right approach to take in aligning the legislation is not simply to use an identical form of words to the Children Act, but to ensure that the Bill applies the principles and general philosophy that underpin the Act in a manner that reflects the special and different nature of adoption. That is the purpose of clause 1, which is why I ask that it stand part of the Bill and that the Committee rejects new clause 2.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 5:45, 27 Tachwedd 2001

Now the Minister has urged rejection, I shall give her my reasons for proposing the new clause in the first place; I shall respond to the counter-response, which is bizarre.

To put the new clause into context, we have endeavoured to be helpful, which I hope the Minister will acknowledge, in our amendments to clause 1. We have taken a multiple-choice approach, and although she sympathised with some of our intentions, she has not accepted any of our amendments. On that basis, the new clause gives her the option of replacing clause 1, the weaknesses in which we discussed earlier. It is entirely consistent for my hon. Friend the Member for North Dorset to add his name to the new clause, having not had his earlier amendment accepted. We sympathise with the thrust of amendment No. 24, which reappears as an attachment to the new clause.

We obviously welcome much of the Bill's content, and its general principles of paramountcy and speed are recognised in clause 1. To echo the Minister's comments, the recognition of the lifelong impact of adoption is important; it is more than an episode in a child's life, which is why that recognition has been retained in the new clause. There is, however, a raft of problems. Clause 1 does not address timetabling, and we want the legislation to come into force as soon as possible. Furthermore, it is difficult to deal with the principle of the Bill in the absence of the regulations that will be the meat and drink that enforce that principle, which is especially true in the provision of support services.

Clause 1 does not address the mechanics by which the increased targets for the amount of adoptions taking place will be reached. As the hon. Member for Chatham and Aylesford (Mr. Shaw) rightly pointed out, it does not deal with the treatment of children with different problems and ages. The role that the child is to play is still unclear, which is why we pressed our amendment to the vote. However noble the intentions of clause 1—there are many noble intentions in clause 1—they will fall down unless they are properly resourced in terms of social services departments and other agencies that deal with people involved with adoption. We shall be seeking further assurances on that matter later in the Bill.

There are also problems with legal definitions. Subsection (4)(f)(ii) refers to

``a secure environment in which a child can develop''.

That is open to legal interpretation. The Minister cannot resist quoting from her brief, which, as we have discussed, brings us to the PC checklist, a colloquial phrase that will be with us for some time.

I was surprised by remarks of the hon. Member for Meirionnydd Nant Conwy on the language qualification in that checklist. Ironically, his suggestion would work against the promotion of the Welsh language. There are many more English babies who could be adopted by Welsh-speaking parents and become Welsh speakers later in life than there are Welsh-speaking babies who could be adopted by English parents.

Photo of Kevin Brennan Kevin Brennan Llafur, Gorllewin Caerdydd

That is a puerile point. All children raised speaking Welsh in Wales are bilingual because they learn English and Welsh. That is a gift, not a disadvantage, to children.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Far from being puerile, my point was factual and helpful. It did not demean the rich tapestry of the Welsh language, which should be available to more people. It was a statement of fact, but the hon. Member for Meirionnydd Nant Conwy is no longer here, so we will have to leave that for another day.

Clause 1 is designed to introduce the paramountcy of the child's welfare into adoption law. The clause extends the Children Act's formulation by adding that such consideration is to be throughout the child's life. We accept and applaud that. Unfortunately, it does not meld seamlessly with the Children Act, or make clear provision for twin-track planning, which would reduce delay. Subsections (1) and (7) attempt to define adoption jurisdiction, but fail to divide clearly between jurisdiction and the public law care proceedings of the Children Act. That would not matter if the same welfare checklists were applied to adoption and care proceedings, but they are not. The division is so blurred that the scope for legal argument is huge.

Under the Children Act, any care case in which the local authority was engaged in twin-track planning could match the description of clause 1(7)(a):

``where the orders that might be made by the court include an adoption order or placement order''.

To gain advantage, one of the parties might claim that the adoption rather than the Children Act welfare checklist should be applied. The clause does not bring the Bill into line with the Children Act. A multiple-choice situation could develop in court; one side might opt for the Children Act checklist as it applies to adoption and care—the provisions in clauses 22 and 23—instead of the Bill's new checklist

Guardians or social workers may have to write a report following one checklist in care proceedings and another checklist because of the possibility of adoption, which would be a waste of their very expensive and valuable time. That problem is more serious than the clogging of the courts with arguments about which provisions should apply. The solution is to minimise the distinctions between the Bill and the Children Act checklists. In cases that are necessarily different—for instance, the permanent nature of adoption orders—we must make clear which procedure applies. The new clause would clarify that process for lawyers. New clause 2 would rewrite clause 1 wholesale by following the Children Act wording. It only diverges in additions about adoption.

The Minister pre-empted me, but perhaps I can put a different spin on the changes in new clause 2. Subsection (1) in the new clause would add

``other than in proceedings under Part IV of the Children Act 1989.''

Proposed new subsection (2) adds:

``The child's welfare throughout his life shall be the paramount consideration.''

That is a simplification of the clause 1(2). In proposed new subsection (4)(b), a better definition is added:

``his physical, emotional and educational needs''.

We heard last week from witnesses about how much educational and psychological evidence is part of the support services that we need to provide. Paragraph (c) refers to any changes in circumstances, rather than to the less-clear family change to which my hon. Friend the Member for North-West Norfolk referred.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk 6:00, 27 Tachwedd 2001

The clause as drafted and the new clause refer to ``his''. Does not my hon. Friend think that the time has come to start referring to ``his and hers''?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is an interesting point. My hon. Friend tabled amendments to that effect that we have not discussed because, sadly, Mrs. Roe, you chose not to accept them. The Bill is complicated enough without our having twin-track discussions on whether ``his or her'' is appropriate. I fear that that is a debate for another day.

New subsection 4(f) has some important additions to which we shall return later. The clause as drafted does not give sufficient regard to siblings and half-siblings; that is why ``relatives'' is qualified in the proposal. Paragraph (f) in the new clause removes the reference to a secure environment, which is open to all sorts of interpretations, and adds at the end of paragraph (g):

``better for the child than not doing so'',

which follows the wording of the Children Act.

New subsection (5) repeats the politically correct checklist in section 22 of the Children Act, adding the provisos in amendment No. 24. The new clause removes subsection (7) as drafted and replaces it with subsection (6); it also deletes references to relationships.

New subsection (1) makes it clear that care proceedings with twin-track planning are to follow the Children Act checklist, and largely does away with the need for new clause 1(7). Our proposals for clause 1(2) follow the Children Act wording more closely, while retaining the necessary addition of ``throughout his''—or her—``life''.

The proposed changes in new subsection (3) follow the Children Act wording but are crucially different from the wording in the Bill because legal advice states that it is vital that the concept of the effects of delay are the same in both measures. Clause 104 also needs to mirror the new clause rather than the wording in the Bill as drafted, which is an unhappy borrowing from section 32 of the Children Act. Leaving the wording as drafted will enable lawyers to argue that a difference is intended by Parliament because of the different location of the word ``general'' in the sentence. We are trying to avoid the long, strung-out delay in the courts, which profits solicitors but is not in the interests of those involved in adoption, especially the potential adopted child.

Case law on the Children Act has developed the concept of purposeful delay as an excuse for not addressing proceedings with all speed. If the Bill's wording is deliberately intended to allow for that concept to be included, it should say so, and the Government should consider amending the entire Children Act.

The proposal in terms of clause 1(4) again follows the Children Act wording much more closely and thus avoids the prospects for arguing that the difference was intended, other than on the specific editions which are, (c), adding ``throughout his life'' and, (f), where there is a much greater emphasis on the long-term effects of changes.

We have also taken out the words ``among others'' in line 13 since that is an invitation to lawyers to persuade courts to adopt additional criteria by accretion of case law. We have reverted to the Children Act formulation of

``having regard in particular to''.

In our proposal for clause 1(4)(c), we have specifically omitted

``having ceased to be a member of the original family and become an adopted person''

and re-introduced the concept of

``any changes in his circumstances''.

The latter is so much wider and can be properly tailored to the circumstances of that particular child. Without this inclusion the Bill's list does not really include the general consideration of the proposed changes in the child's life.

The proposal for clause 1(4)(f) is to specifically introduce the concept of the wishes and feelings of siblings and half-siblings. That does not appear to feature as much as we think it should in the whole Bill. The Bill as proposed places a great deal of emphasis on the child's feelings and those of the surrounding adults, but does not spell out the special considerations of the child's siblings and half-siblings who by reason of their likely closeness in age to the child, could well have a longer role in that child's life. That would also enable the consideration of a placement that brings together rather than splits up, which has long been a source of problems.

It is important to appreciate that the wording of clause 1(4)(f) would allow the views of foster parents to be taken into account, particularly in circumstances where they wished to adopt and the local authority had other plans. Can the Government clarify whether or not that is their intention?

In proposed new clause 1(4)(f) we deliberately omitted the words

``to provide the child with a secure environment in which the child can develop''

because such a need is envisaged in the word ``needs''.

The addition of such words—particularly the phrase ``secure environment'' and the word ``develop''—will give rise to an enormous amount of legal argument because it will suggest a prominent position for those over matters above general consideration of all the child's particular needs.

The proposed new clause 1(4)(g) mirrors clause 1(3)(g) of the Children Act and would stand instead of the Bill's clause 1(6). Finally, we have included part of the Bill's clause 1(7) as our proposed clause 1(6) and added the role of the Bill's clause 1(8)(c) to it.

Clause 1(7)(b) makes little sense. What distinction is being drawn? Perhaps the Minister could answer that. What criteria are proposed in terms of the decision to initiate proceedings for adoption in a court, if not those in the Bill? Similarly why are other aspects of granting this not included, in relation to adoption matters?

I hope that has made the new proposed clause crystal clear and that the Minister will be able to explain why the original assumption—that perhaps it was not such a good deal after all—may need to be reviewed in the light of the detailed breakdown of why our new clause 2 is much better than her existing clause 1.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I shall be brief because I think that my hon. Friend the Member for East Worthing and Shoreham has put a very strong case. There is no question that our new clause is sharper, more focused and better drafted. We have run it past a number of lawyers and tried to make it more user-friendly than more lawyer-friendly. Lawyer-friendly clauses are those that are going to go to court and result in a lot of lawyers spending a huge amount of time debating and making a lot of money at the public expense, which is why we are trying to make it easier to understand. The differences—my hon. Friend explained exactly what they were—are small, but significant.

Will the Minister clarify the meaning of ``secure environment''? Unless we are careful, that will lead to much legal debate. Does it mean secure in the wider family or social sense, or in the more narrowly defined physical sense? If we do not clarify that now, we might end up creating opportunities for lawyers to spend considerable time in court and make a lot of money.

We have had a wide-ranging debate on clause 1. I hope that the Minister will accept that the Opposition have been as constructive as possible. We are simply trying to help her and her officials to ensure that, when we report the Bill to the House, clause 1 is better suited to its overall requirements. That is why I support my hon. Friend.

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

I shall respond to some of the issues raised by the hon. Member for East Worthing and Shoreham in his lengthy and legalistic explanation of new clause 2, but in the spirit of being helpful and constructive, it might be better to write to the hon. Gentleman with a more detailed response.

It may be worth clarifying the use of the word checklist and explaining why it is included in the Bill and the explanatory notes. My hon. Friend the Parliamentary Secretary was itching to tell the Committee that one reason for the word is that it has significant judicial backing. Lord Justice Waite referred to the use of the term in the Children Act 1989 in the London Borough of Southwark v. B in 1993:

``The colloquial description `checklist' describes the function of s.1(3)''

of that Act

``with complete accuracy. It is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child's welfare generally in the circumstances of each particular case is left out''.

I am always willing to learn from judges' decisions about the significance and use of words and I hope that that is useful to the Committee.

The hon. Member for East Worthing and Shoreham raised several points in his introduction to the more substantial legal issues. He mentioned the importance of resources. Government Members will cite the significant £66 million increase to local authority funding for adoption support. Long-term decisions are rightly subject to Government discussions. I am sure that all hon. Members will be cheered by the prospects for future public service investment—particularly in the national health service—held out by my right hon. Friend the Chancellor of the Exchequer in his statement this afternoon. Significant extra investment is forthcoming.

The hon. Member for East Worthing and Shoreham referred to the wishes of the child. We should return to the issue later in our considerations, which should satisfy the hon. Gentleman and others that the Government are genuine in their concern to ensure that the child's wishes are considered and that effective action that builds on good practice is taken. He also mentioned timetables and implementation. I can assure him that the Government have no intention of taking the eight years that it took to implement the 1976 Act. We shall return to implementation timetables later in our consideration of the Bill.

Although new clause 2 may possess some of the virtues suggested by the hon. Gentleman, I am doubtful about most of them. It would create significant problems, it misses out important issues and it places other issues in the wrong place. It should therefore be resisted.

I should like to respond to the hon. Member for East Worthing and Shoreham's point about the change to clause 1(1), which attempts to make it clear that the clause does not apply to proceedings under part IV—dealing with care orders—of the Children Act 1989. The hon. Gentleman spoke about twin-tracking. We believe that the courts have a clear dividing line between the Bill and the 1989 Act. The new clause is therefore unnecessary in respect of courts. In care order cases, the court's role is to consider whether to make the care order, not to re-„write the care plan for the local authority. The court does not take a decision on adoption, but decides whether a care order should be made. Section 1 of the 1989 Act applies, so there is no need to provide for it explicitly in the Bill.

The position is slightly different with local authorities. Restricting local authorities from using the adoption clause 1 on care proceedings would be undesirable because that would fail to recognise their different role in drafting a care plan in respect of a care order application. In considering adoption as an option, we want local authorities to be subject to clause 1—or, in other words, to the adoption welfare checklist—whereas the new clause would disapply it for care proceedings.

With that explanation and my commitment to respond in detail to specific points on the legal relationship between the Children Act 1989 and clause 1, I hope that the hon. Gentleman will not press the new clause.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 6:15, 27 Tachwedd 2001

I am not terribly impressed. Our new clause was detailed, but the Minister has failed to respond, for example, to the point raised by my hon. Friend the Member for North-West Norfolk and myself about the definition of ``secure environment''. If parts of the new clause that attempt to mirror the Children Act 1989 are inappropriate, that Act is flawed. We anticipate that the Government will have to amend certain parts of the Act. I shall eagerly await my postbag every morning for the Minister's detailed response. We have spent a long time debating clause 1 and to expedite the Committee's work I shall not press the new clause.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.