Clause 18 - Placing children with parental consent

Adoption and Children Bill – in a Public Bill Committee am 6:30 pm ar 27 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 6:30, 27 Tachwedd 2001

I beg to move amendment No. 40, in page 12, line 35, after ``of'', insert—

``or other persons holding parental responsibility for''.

Again, the amendments are probing amendments, and I hope that we can get clarification from the Minister. The British Association of Social Workers raised the issue of identification, and we subsequently proposed amendment No. 41, which would add the words ``(directly or indirectly'') after ``identified''. The BASW pointed out that it was not clear whether the present arrangement, whereby a parent might consent to adoption by specific adopters whose identity is protected by a serial number, could be continued. It appears from the clause that the word ``identified'' means named. Will it still be possible for a parent to agree to adoption by unnamed specific adopters, about whom he or she has received specific information? It will be important in some cases to protect the identity and location of an adopter.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

Order. The hon. Gentleman should be speaking to amendment No. 40.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

In that case, I must be using an old selection list on which amendment No. 41 is listed first. I will revert to amendment No. 40, and the Minister can then respond to my response before I have made it, although I have not, in this case. [Laughter.]

Let us deal with amendment No. 41. [Hon. Members: ``No. 40.''] Let us deal with amendment No. 40—it has been a long day—which deals with parental responsibility. The amendment is probing and deals with a potential anomaly that appears several times in the Bill. We would add:

``or other persons holding parental responsibility intended for''

after ``parent or guardian of'', because the glossary refers to section 3 of the Children Act 1989, which defines parental responsibility. Surely, more than just the parent or guardian can have parental responsibility, and it is not clear in section 3 of the 1989 Act how that relates to the definition of ``guardian''. I refer specifically to clause 107 and the role of the step-parent who may acquire parental responsibility.

The amendment probes whether all avenues are covered. People in a position of parental responsibility may not be covered by the reference to ``parent or guardian'' in the definitions and related explanatory notes. I ask the Minister to respond specifically to the question of step-parents who acquire parental responsibility.

The Law Society raised the issue of what happens to fathers without parental responsibility whose birth child may be adopted, and made a suggestion—supported in some quarters—that all fathers should automatically receive notice of a placement for adoption or adoption proceedings. Such notice would include a get-out clause if the court decided it was necessary—for example, if there was a threat of violence from the person who had necessitated the child's removal in the first place. Will the Minister clarify who has parental responsibility and whether the definition includes step-parents with parental responsibility under the parental and guardian terminology? If she cannot, will she accept our amendment to ensure that all avenues are covered?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 6:45, 27 Tachwedd 2001

The provisions for consent to placement follow the model of the consent to adoption provisions in the Adoption Act 1976. ``Parent'' means a person with parental responsibility. Clause 129 provides that ``guardian'' ``includes a special guardian''. The special guardian is the child's primary carer who takes day-to-day decisions on the child's upbringing. It is right that the guardians, as well as the child's parents, should consent to adoption.

Under the amendment, others with parental responsibility would need to consent to placement for adoption. In answer to the hon. Gentleman's specific points, only a birth parent with parental responsibility consents to adoption. Unless they adopt, step-parents do not, even if given parental responsibility under clause 107.

Unmarried fathers are also relevant. Under the 1976 Act, a father has parental responsibility only if he marries the mother. He can acquire it by agreement or court order under section 4 of the Children Act 1989. Clause 106 provides that an unmarried father automatically acquires parental responsibility.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

What would happen if both parents were tragically killed and no other family member could act as guardian?

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

I do not know, but I can find out now or let the hon. Gentleman know later.

If the amendment was intended simply to ask a question, I hope that I have answered it.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

I am now a little more confused. Is the Minister saying that the unmarried, natural father of the child has rights, but that a stepfather who adopts a child does not?

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

Now I am confused. Only a birth parent with parental responsibility must consent to adoption. Even if step-parents have parental responsibility under clause 107, they do not have to, unless they adopt. If a stepfather adopts, he can consent to a child's adoption.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The amendment was a probing one, but the Minister has not answered the question that it posed. If the debate continues for another 11 minutes, the question might, with the assistance of in-flight refuelling, be answered on Thursday morning.

Will the Minister explain how many people hold parental responsibility for a child at any one time? She seemed to suggest that any number of people could. She has referred to sections of the Adoption Act 1976, saying that the proposal merely replicated what went before. If so, and there is still confusion, the matter should be properly addressed.

The Minister mentioned the subject of a special guardian, who is different from a guardian. However, the clause refers only to ``parent or guardian''. How does the role of a special guardian come into the clause? I am confused about that. The hon. Lady took up my subsidiary point about informing the birth father without parental responsibility. In what circumstances would the birth parent lose parental responsibility? Should that person be informed about the adoption of his child? The clause is confusing, and we have not unmuddied the waters; if anything, we have made them muddier. Further clarification is needed.

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

The hon. Gentleman seems to have gone further in his questioning than he intended in tabling the amendment. The question implicit in the amendment is who can give consent to a placement for adoption; that is different from the question of who has parental responsibility for a child. Potential holders of parental responsibility might include anyone in whose favour a residence order has been made if a child is under a local authority care order, for example.

As I told my hon. Friend the Member for Lancaster and Wyre, we are making changes in legislation that affect the extent to which and the times at which parental responsibility transfers from birth parents to the adoption agency and to the prospective adopters. The amendment refers to those who should be able to give consent to placement for adoption; as the record shows, I have already explained who can give consent for adoption and who cannot.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The two questions are inextricably linked; I asked the Minister who has parental responsibility because I want to ensure that everyone—the parent, the guardian and the parental responsibility candidate—will be a candidate for giving consent. I have not had an answer to the question as to how many people can have parental responsibility for the same child at any one time. For example, can a birth parent and a birth step-parent each have parental responsibility at the same time for one child and can anyone else have that responsibility?

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

Yes, a birth parent could have parental responsibility and so could a step-parent. As my hon. Friend the Member for Lancaster and Wyre and I said, the local authority could have parental responsibility. Those who can have parental responsibility are: a parent; those with a residence order; a local authority under a care order; and a special guardian. In relation to who can give consent, I answered that earlier when I said that only a birth parent with parental responsibility could consent to adoption, and not a step-parent, unless they adopt.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am sorry to appear dense here but the clause still refers only to a parent or a guardian giving consent. If parental responsibility has transferred wholly to a local authority or wholly to step-parents, where are they covered under the term ``parent or guardian'' as being able to give consent?

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

I do not wish to reply, Mrs. Roe, as I have already answered that.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

It was a probing amendment and my probe has been severely blunted, but we will not push it to a vote. I hope that we get a slightly clearer response to some of the other probing amendments that are coming up. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 42, in page 12, line 35, after `child', insert

`with reference having been made to the expressed wishes of the child himself (considered in the light of the child's age and understanding)'.

The amendment addresses a subject that we touched on earlier; that of referring to the child. As I prefaced earlier, we think that the express wishes of the child should play a greater part in the whole adoption process. We feel that the definition in clause 1does not go far enough. We do not want to limit the measure by giving a child at the age of 10, 12, over five or any of the markers debated, an effective veto over whether the adoption, placement or whatever stage of the adoption procedure has been reached should be progressed. However, we feel that there should be more explicit reference in the Bill to that child's wishes having been taken into account. We have used the wording of clause 1 itself, with the bracketed qualification of subsection (4)(a) that any reference to the child should be considered in the light of the ``child's age and understanding''.

This is another probing amendment for the Minister. She may say that consideration is effectively covered by other parts of the Bill and that it already features in part of the guidance or regulations, or she may argue that the requirements of the child in this context should not play as great a role as we believe they should.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

The amendment is not dissimilar to one tabled by my hon. Friend the Member for Huntingdon but it is obviously in the context of this clause. This is an important amendment because it introduces the words

``with reference having been made to the expressed wishes of the child himself''.

Unfortunately when we were considering the amendment tabled by my hon. Friend for Huntingdon this morning, I am not sure whether any of us had in front of us a submission from the Adoption Law Reform Group, which covers many of the bodies that gave evidence to us last week, including Adoption UK, the Association of Directors of Social Services and the British Agencies for Adoption and Fostering. I do not want to go through all them but there are a dozen bodies, some of which gave evidence to us last week.

I hope that the Minister can respond favourably to the amendment, for which the Adoption Law Reform Group argues very forcefully. It suggests going back to the 1992 review, the report of which recommended to Ministers that the agreement of a child over the age of 12 should in future be required unless there were grounds for dispensing with it. The draft Bill of 1996 included a provision that as a party to the proceedings, the child—subject to his or her age and understanding—should have the following opportunities: to consent to the adoption; to refuse consent to adoption; to decline to give or to refuse consent; and to give full expression, with appropriate help, to his or her wishes and feelings in connection with the application. In giving its decision, the court should be required to explain how it has taken the child's wishes and feelings into account.

I was criticised earlier for not praying in aid the groups that had made submissions to us. I would now wish to put on the record, were I given the time, the names of all the groups that made such submissions. I support the amendment.

Debate adjourned.—[Angela Smith.]

Adjourned accordingly at one minute past Seven o'clock till Thursday 29 November at half-past Nine o'clock.