Clause 18 - PLACING CHILDREN WITH PARENTAL CONSENT

Adoption and Children Bill – in a Public Bill Committee am ar 29 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed [27 November]: No. 42, in page 12, line 35, after the word `child', to insert the words

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

Question again proposed, That the amendment be made.

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

I start by welcoming you to the Chair, Mr. Stevenson. We had a good debate on Tuesday while your co-Chairman, Mrs. Roe, was in the Chair.

Before I respond to the hon. Member for East Worthing and Shoreham (Tim Loughton), it may be useful to remind the Committee of the purposes of clauses 17 to 34. They introduce the new system of placement for adoption through adoption agencies, and significantly reform the legal process for adoption. One advantage of the proposals is that they will replace the legally unsatisfactory freeing provisions, so that birth parents can voluntarily relinquish their children for adoption. Freeing orders have been widely criticised. Once they are made, they leave the children legally without parents, and parental responsibility is transferred to the adoption agency. Many stakeholder groups have welcomed the abolition of freeing orders.

The new system ensures that substantial decisions about whether adoption is the right option for the child and whether the birth parents consent are taken earlier in the adoption process. Courts are involved where necessary. The Government believe that greater certainty and stability for children will be provided by dealing with the bulk of issues around consent to adoption before they are placed with their new families.

The new system will also be fairer to birth families who, under the current system, can be faced with a fait accompli at the final adoption order hearing if the child has already been with the prospective adopters for several months. The new provisions also minimise the uncertainty for prospective adopters and reduce the risk of their facing a contested final adoption order hearing. Once the issues around placement have been resolved, there are limits to the circumstances in which the adoption order may be opposed.

There are two routes to adoption through an adoption agency. The first route is through voluntary placement with parental consent, which is open to adoption agencies and local authorities. The second route is through placement for adoption under a placement order where there is no parental consent, and is open only to local authorities. Where a local authority is authorised to place a child for adoption with parental consent or under a placement order, subsection (2) provides that the child is to be considered a looked-after child to ensure that the local authority properly reviews and supervises the adoptive placement and promotes and safeguards the child's welfare. It will also mean that children placed for adoption will have access to the varied services for looked-after children, and should help to ensure that they are properly supported in the unfortunate event of the adoptive placement breaking down. Under subsection (4), placement has an extended meaning and covers placing a child with prospective adopters and, if a child has already been placed for other purposes—with a foster carer, for example—leaving the child with the carer as an approved prospective adopter.

Having considered some of the wider issues around placement provisions, I now turn to amendment No. 42. The Government believe that the amendment is unnecessary, because clause 1(4)(a) requires the agency, in deciding whether a child should be placed for adoption, to ascertain the child's wishes and feelings and to take them into account, in the light of their age and understanding, as part of the decision-making process. Clause 1(1) makes it clear that the obligations in the rest of clause 1 apply

``whenever a court or adoption agency is coming to a decision relating to the adoption of a child.''

Current regulations require an agency to make a decision based on advice from its adoption panel that adoption is in the child's best interest. Similar regulations will be made under the Bill, and they will set out the process for ensuring that the agency takes proper account of the child's view in the decision-making process, as it is obliged to by clause 1. The new adoption agencies regulations that will accompany the implementation of the Bill will place explicit obligations on agencies to consult the child, to record its views, to ensure that its views are considered in the decision-making process—for example, by adoption panels—and, if the child's views are not acted on, to record the reasons why not.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

Is the Minister not aware that, in evidence laid before the Committee, the Adoption Law Reform Group asked that as part of proceedings the child, subject to his or her age, should have to consent, or refuse to consent, to the adoption? Several important bodies have been involved in the sittings: the Association of Directors of Social Services, the British Agencies for Adoption and Fostering, the British Association of Social Workers, and so on. Do the Government not accept their views?

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

We had considerable discussion about the principle of consent on Tuesday, and there was wide acknowledgement of the burden that would be placed on a child if they were asked to consent directly. Furthermore, that is not what amendment No. 42 is about. As mentioned on Tuesday, the Government have considerable concerns about requiring a child to consent, either directly to an adoption or indirectly through other decision-making processes. For that reason, we argued against the need for it. Given the assurances that I have offered, I repeat my request that the amendment be withdrawn.

Mr. Jonathan Djanogly (Huntingdon) rose—

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Djanogly. On Tuesday, Mr. Stevenson, we were all wondering how to pronounce the name of a Welsh constituency.

I believe that we all agree that the Bill is aiming—in some ways, more than the Adoption Act 1976—to put the child's rights more to the fore. When debating our amendments on how the child's rights should be stated, the argument seems always to return to the fact that they will be set out in regulations—but we have had no sight of those regulations. If a child is to have rights, they should be reflected in the legislation.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I welcome you to the Committee, Mr. Stevenson. We have a marathon stretch ahead of us. You have already encountered the difficulty in pronouncing certain names—you are lucky that you did not have to question Professor Triseliotis last week.

I thank the Minister for her response to the amendment which, as I explained when I moved it, is a probing amendment. It harks back to the concerns that we have expressed throughout our deliberations that the child should play a greater part in the adoption placement process. We expressed concerns earlier in the week about how the appropriate agencies should go about ascertaining the wishes of the child, and we argued that that should certainly include direct contact, which is not explicitly stated in the Bill. The Minister has gone some way to assuring us, particularly by saying that the regulations will place explicit obligations on the agencies to refer to children and that if they do not do so they will have to give a good account of themselves as to why not. Given that assurance, 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. 41. in page 12, line 37, after `identified' insert `(directly or indirectly)'.

If you had been with us on Tuesday afternoon, Mr. Stevenson, you would have an inkling about what I am about to say. However, I fear that I am going to bore the rest of the Committee by repeating some of the comments that I erroneously made prematurely at that stage.

The amendment addresses a point that has been raised by the British Association of Social Workers. It is a probing amendment in order to gain clarification on procedure. We are not sure whether the present arrangements, whereby a parent may consent to adoption by specific adopters whose identity is protected by a serial number, is to be continued. The Bill implies that adopters are to be named. Will it still be possible for a parent to agree to an adoption by unnamed specific adopters about whom the parent has received information? A child needs to be afforded a measure of protection if he or she has come from a violent background—which is the reason for adoption in the first place. Where the child is living with their adopted parents should not be disclosed directly. I ask for the Minister's clarification on whether the present system of partial anonymity is to continue.

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

I can help the hon. Gentleman. The word ``identified'' was deliberately included in this version of the Bill instead of ``named'', which was the term used in the 1996 draft Bill, with the aim of enabling parents to consent to placement with specific adopters whose name they did not know but with whose characteristics and details they may be familiar through, for example, an anonymised profile passed on by the adoption agency. I assure the hon. Gentleman that identification on the consent form by serial number will be allowed.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is straightforward. My only query is whether ``anonymised'' is a word in the English language. It sounds like the civil servants have been working overtime to produce that one. On the basis of the Minister's clear clarification, 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 Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre 9:45, 29 Tachwedd 2001

I am grateful for the opportunity to express some qualms about the clause—and about chapter 3, with which it is intimately linked.

Yesterday, a young woman who works for a national care organisation came to see me about another aspect of the Bill. I had met her and her delightful five-year-old daughter previously at a conference. They are great together, as anyone who saw them would acknowledge. While discussing other parts of the Bill, she told me her own story. She is a highly intelligent and articulate young woman who can stand up for herself. She had been in care most of her life and became pregnant at the age of 16. She was due to have a baby, but had no family support. Understandably, she was nervous at the prospect. She confided to her social worker at a fairly early stage of the pregnancy that if she felt that her child would have the sort of upbringing that she had endured for 16 years, she would certainly view adoption as in the child's best interests.

Anyway, she duly gave birth. Having been only a spectator at these events, I do not know about such things, but apparently it was a difficult birth. Both she and her baby were ill. She gave birth in the morning. Still under the influence of medication, she was asked in the afternoon to sign a form to consent to placing the child for adoption. I repeat that she is an articulate, intelligent and strong-willed person. Even in such a state, she was able to refuse the opportunity, stand up to the local authority for several weeks and assert her right to look after her child. She now has an excellent relationship with her child and things are definitely looking up for both of them. That is an example of extremely bad social work practice—and there is no way that we can legislate for that.

My worry is that the clause and chapter 3 will make that young woman's position even worse. The Children Act is good legislation, although we should still try to improve and build on it. Certain aspects of the proposed provisions ring alarm bells. If the young person to whom I referred had been dealt with under them, her parental responsibility could, quickly and without recourse to a court, have ended up being shared with the local authority and the prospective adopters. That major change would undermine a fundamental element of the Children Act, which asserts that parental responsibility can be transferred only by a court.

The Bill harks back to the Children Act 1948, which became discredited over the years. It was replaced by the 1989 Act, which removed the ability of local authorities to declare parental rights resolutions without recourse to a court. Those resolutions transferred parental rights from parents to local authorities. We should tread carefully in seeking to amend legislation that has been on the statute book for 10 years, has stood the test of time and has proved to be workable.

Under the Bill, even if the young person had not got to the stage where her parental rights were removed, she could not simply tell the local authority that she wanted her child returned to her, as she could under section 20 of the Children Act if the child was placed voluntarily in care. She could be required to wait for 14 days before the child was returned to her. That is a major amendment to a Children Act whose fundamental principles have widespread support, especially in the social work profession, and that has been shown to work well.

I am also concerned that the provisions are so complicated—[Laughter.] This is a serious point. The proposed legislation is not just for politicians, and certainly not just for lawyers. Children, young people and parents must be able to understand it. Social workers must certainly be able to understand it, and to use it daily. I used the 1989 Act for six years, but have not used it for the past four years and I am struggling with it as I am a bit rusty. There is no reason why the chapter should not be easier to understand.

Adoption is extremely complicated. The child's needs must be understood, the birth family and relationships must be assessed, and the child must be matched with prospective adopters. Trying to predict how things will work involves such fundamental and morally difficult issues that we do not need extra complications from the law. We need a law that has understandable architecture. The significance of the Children Act, which goes far beyond situations such as the one we are discussing, is that it has such a comprehensible structure.

We have discussed clause 1, which is a complex but clear and balanced piece of legislation. However, neither the clause nor this accompanying one have such clarity. It is beyond our ability today to table and fit cogently the necessary amendments to this and related clauses, but I ask my hon. Friend the Minister to ensure further discussion between officials and organisations such as BASW, the Family Rights Group and BAAF, which have expressed concern about the issues. Much of the legislation is excellent, but freeing provisions must be abolished. The advantage of placement orders is that they speed up the process of getting into court and making clear decisions about the way forward.

There are two routes into the care system under the Children Act: through section 20, when a child arrives voluntarily and is accommodated by the local authority, and through section 31, when a child's case is looked at compulsorily under a care order. I urge my hon. Friend to consider whether a local authority should seek a placement order whether or not a child comes into the system under a voluntary or compulsory route.

We heard in a previous sitting about children in the adoption process having to make two court appearances. One court appearance is necessary—to deal with the adoption order. I strongly suggest, in line with the Family Rights Group, that regardless of the route on which children enter the system, there might be great merit in the local authority going for a placement order in the first instance if they want to go for adoption. That would enable a decision to be made on whether adoption is the best option, whether the parents' consent should be dispensed with and whether there might be other placement options. It would also allow permission to place to be obtained.

I hope that a child's legal status will remain the same under such a system, so that he or she would still be accommodated under section 20 or, for compulsory care, under section 31. However, if the threshold conditions are met when a child comes before a court for a placement order, that should surely be the stage at which a care order is made, to ensure that the child is given sufficient protection. That would deal with the 14-day limit on removing children from care and the transfer of parental responsibility. Early, meaningful decisions could be taken and there would be the sort of openness that everyone wants to encourage in adoption. There would be compliance with the Children Act, which is good legislation. The legislation would be more coherent for the people who have to use the system. I hope that my hon. Friend agrees that significant discussion is needed on these issues between our officials and the groups that are so concerned.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 10:00, 29 Tachwedd 2001

I will respond to all the points that my hon. Friend has made in a moment. The clause allows parents to consent to their child being placed for adoption through an adoption agency. It is important to provide a route through the difficult area of adoption which allows parents to consent without necessarily having to go through unnecessary court cases, as would happen if a placement order were required in every case. I will come to the significant safeguards shortly. A parent can consent to the child being placed with specific identified perspective adopters or with adopters whom the adoption agency selects.

My hon. Friend raised several understandably important points of concern. He highlighted a sad case of a young woman who was asked to provide consent for adoption on the same day—soon after—she gave birth. Under clause 50, no consent can be given for the adoption of a baby less than six weeks old, and so the situation that he described could not happen. Considerable support and regulation would surround the form and the nature of any consent and the extent to which it would be possible to withdraw it. I will talk about that more in a minute and certainly in relation to later clauses.

My hon. Friend makes a very reasonable call for clarity and simplicity in the system. Without speaking ill of courts or lawyers, I am not convinced that insisting on a court case, even when there may be no need for one, will introduce either clarity or simplicity—for birth parents, prospective adopters, or most importantly the children themselves.

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

I am sure that my hon. Friend would acknowledge that at some point in every adoption case a court appearance is necessary. Would not the use of placement orders in the manner that I described simplify that experience in court and resolve fundamental issues more efficiently?

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

We certainly agree that one of the advantages of the placement provisions is that they ensure that the difficult issues of consent and placement are dealt with much earlier in the process and that there are two routes—one through the courts, via a placement order. However, I still contend that it is right to provide a route through which parents can voluntarily consent that their children be placed for adoption with, of course, the proviso that they can withdraw that consent at any point up to the time when an application is made for an adoption order. My hon. Friend may have qualms about the removal provisions, but it is important to remember that. We are not asking parents to consent and then to find that there is no way out; parents can consent and then even in the case of advanced consent, to which we will come in a moment, they can withdraw that consent at any point up to the time when an application is made.

My hon. Friend also raised points about parental responsibility, questioning the way in which it is shared under the provisions for placement with consent. I hope that I can reassure him. Parental responsibility can not be shared unless the birth parent consents or a placement order has been made through a court case. Parental responsibility is not transferred; we need to be clear about that. We should remind ourselves of the present system. Under freeing orders, parental responsibility was transferred; it was taken away from birth parents and given to the adoption agency, and thus no longer remained with birth parents. Alternatively, in the case of children who were already in care, an application for an adoption order was made without the issue of consent having been addressed. As I said earlier, the placement provisions overcome the fait accompli that birth parents faced under the old system. Under the new placement provisions, parental responsibility will not be transferred; it will be shared between birth parents, the adoption agency and, as the placement goes on, the prospective adopters.

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

Does my hon. Friend acknowledge that the provision marks a significant break with the Children Act? It means that an adoptive parent, or the local authority, will acquire a share in the parental responsibility without going through a court process.

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

That could happen only if the parents consent to it. That brings me to the restrictions and the safeguards that we need to place around the consent process, and the important matter of sharing parental responsibility.

When there is consent to placement for adoption, parental responsibility is given to the adoption agency and shared with the prospective adopters once the child is placed. However, in contrast to freeing orders, the birth parents will retain parental responsibility up to the final adoption order, although their ability to exercise it may be limited. I shall state what I believe are the justifiable reasons for that proposal in clause 24.

The sharing of parental responsibility once the child is placed will help the management of the placement by making it clear that the agency and the adopters have responsibility for the child and can make day-to-day decisions. It is appropriate for the adoption agency, which has overall responsibility for managing the placement, to be able to determine the extent to which the birth parents may exercise parental responsibility. However, I emphasise that parental responsibility has not been transferred but shared in such cases.

My hon. Friend also raised the important case of a child who is voluntarily accommodated, and spoke of his concerns about the removal provisions. We must be clear that a child who is voluntarily accommodated cannot be deemed to be placed for adoption with, for example, foster carers without the consent of the parents. When considering the 14-day removal period, we must remember the direction of travel. If a child is voluntarily accommodated to provide respite or support for the family, or to enable rehabilitation, it is right that the parents have their child returned directly to them when they ask for that voluntary accommodation to end.

However, it is different when the direction of travel is towards adoption. In such cases, the child would probably have been spoken to when they were first accommodated and prepared for leaving their original mother and father for a new family. The birth parents would still have the right to remove their consent for the placement, but if they did, the local authority would have 14 days either to return the child to the birth parents or consider whether it wanted to go through the placement order process. In that situation, 14 days would be reasonable, given that everything that the child would have experienced before that would have been geared towards adoption. It does not seem unreasonable to have a period of time within which that child could then be prepared to return to their parents. That is qualitatively different from voluntary accommodation with the intention that the child will be returned to their family.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Are there circumstances in which a child could be adopted in less than 14 days after a placement order?

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

I think not, but I will come back to the hon. Gentleman if I am wrong. Given that we have made provision for three months between notice of intention to adopt and the application, I suspect that it would be impossible for there to be less than 14 days. Those three months are important, because they provide the birth parent with the ability to exercise their right to have their child returned to them, notwithstanding the 14 days' maximum removal period.

To summarise, the local authority cannot get a share of the parental responsibility unless the parent has given consent or the authority goes through a placement order court case. We will deal with the detail of consent, because it is important to be clear about safeguards and the process of granting and withdrawing consent. I emphasise that the forms for consent to placement and withdrawal will be prescribed to show clearly the full implications of what is involved. An independent Children and Family Court Advisory Service officer will witness consent to ensure that it is properly given. That will involve talking through the implications to ensure that the type of situation mentioned by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), in which someone is rushed or bamboozled into giving consent, could not happen. Placement with consent is intended to be a voluntary process. Birth parents can withdraw their consent at any point up to an application for an adoption order.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre 10:15, 29 Tachwedd 2001

Does my hon. Friend accept that it is very difficult to have these discussions when one has not seen the detail of the regulations? In fact, the witnessing of the consent agreement by a CAFCASS officer is a very important provision. Members of the Committee need to be aware of such regulations when discussing the issues covered by the Bill.

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

I should make it clear that the provision on witnessing by a CAFCASS officer is in clause 97. The point that we discuss legislation and then perhaps need to look at the details afterwards is frequently made, although the same process was used for the Children Act. It seems sensible and logical to set out the principles in legislation and then provide the opportunity to discuss concerns, which may then need to be represented in regulations. It is also necessary to enable wide and full consultation on the regulations to ensure that the issues raised, as well as any others on the detail of the regulations, are taken into consideration.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Will someone who is going to give consent be entitled to legal representation? Will they get legal aid for that representation?

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

I do not believe that that would be appropriate. As I have spelled out, they will have the independent support and witness of a CAFCASS officer. That is an important assurance. The nature, form and withdrawal of the consent will also be designed in such a way that it will be very clear to that person what they are and are not consenting to when undergoing the process.

The clause strikes an appropriate balance between the rights of the birth parents and stability and security for the child and the prospective adopters where consent to placement has been given.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.