Clause 19 - Advance consent to adoption

Adoption and Children Bill – in a Public Bill Committee am 10:15 am ar 29 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 10:15, 29 Tachwedd 2001

I beg to move amendment No. 46, in page 13, line 25, after `section', insert

`and will be given a written explanation as to the timing and procedure by which consent can be withdrawn.'.

In his interesting speech on clause 18, the hon. Member for Lancaster and Wyre highlighted problems with the Bill. Even with all the advisers and expert witnesses available to Committee members, it is complicated enough. It will be particularly complicated for children and prospective adoptive parents, and especially for birth parents who, at a highly emotional and difficult time, are in the process of voluntarily or involuntarily giving up their children for adoption. Anything that we can do under the Bill to clarify that situation and make it less able to be challenged in the courts through messy and long-running proceedings must be in the interests of all concerned.

In her comments on clause 18, the Minister stressed that a parent who has consented to giving up his or her child for adoption has every opportunity to withdraw their consent, right up to the granting of the adoption order. I agree that that is important. During such a highly emotional time, the circumstances of the parent may change daily or weekly—particularly those of a young mother who did not expect to fall pregnant and is faced with the dilemma of deciding whether to keep her child or give it up for adoption in the belief that the child would have better opportunities if looked after by someone else. That is a difficult decision.

Interestingly, the problem has featured heavily in various television programmes and newspapers recently. Dear Deirdre recently dealt with adoption in The Sun, and the nation's favourite soap tackled the issue and realistically portrayed the dilemma faced by someone considering whether to give up their child for adoption. Other television programmes, obviously taking their cue from the legislation and the proceedings of this Committee, have tackled the complex subject.

The amendment aims to be helpful and lessen confusion. We constantly refer to the flow chart at the back of the explanatory notes, yet I still need a dark room and a wet towel around my head to get my mind around it. How will the person who is actually faced with the various options and procedures represented in the flow chart make sense of the measure?

If a parent, after taking the decision that it is in the best interests of his or her child to be given up for adoption, makes the process easier by giving consent, which will speed up the process—speed is always of the essence, because the child should be settled in a new, stable, long-term environment as soon as possible, particularly if there are threats of domestic violence—surely it is only right that that parent should have properly explained to them the procedure by which they can withdraw their consent should circumstances alter or they have a change of heart as they realise, as the time draws nearer, the full implications of giving up their child for irreversible adoption. Instead of simply thrusting a flow chart into the hands of parents who may be in a state of semi-trauma or explaining references to a flow chart that appeared in some regulation, the agency should be obliged to provide a clear, explicit and simple written explanation of timings and the procedure by which they can withdraw their consent.

One representation sent to the Committee cites an instance in the 1980s of a parent who, by force of circumstances—she was going abroad—placed her daughter in voluntary, short-term care with foster parents, under the aegis of Surrey county council social services department. Much to her consternation, she returned to find that her child had been placed in permanent adoption without her knowledge. That is an extreme case, although I have heard of similar ones.

The point is that it is surely incumbent on the authority and agencies involved fully to inform the parent at every step of the way, and to make the process as simple as possible. That is why I am asking that, instead of a complicated flow chart, there should be an obligation to tell the person concerned, ``Here are your options. If you consent at this stage and sign on the dotted line, until a certain date you will be able to reverse that consent, and the way to do so is through''—for example—``form A.''

That simple requirement would not place an enormous extra bureaucratic burden on the agencies concerned. It would avoid the subsequent challenge that adoption took place without parental consent, because the parent would be fully appraised of the options during the difficult time leading up to the granting of the adoption order. That simple requirement is all we are asking for. No great expense or extra burden of work would be involved. It would ensure that the parent is absolutely certain of their decision, and if they change their mind they can notify the relevant authorities.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I certainly support the amendment, although it could go a little further by making it clear that the written explanation should be given when consent is given. The person who is consenting clearly has a right to know the implications of what they are doing. One of the Bill's aims, which we all support, is to facilitate and speed up the adoption process. In certain cases, there could be a family incident, and even though a clear explanation is given at the time, the adopter could be left in a state of shock and consternation. After a discussion, the social worker might decide that adoption is the right course of action. It is therefore more important than ever to establish safeguards such as those that have been proposed.

It is right that notice be given, but during the period in which consent can be withdrawn, will such a person have access to on-going advice? Will advice stop when consent is given? If the person concerned—who may have come out of a vulnerable situation and is a bit more clear-thinking after the consent date—wanted advice, would she or he have to take it from social workers, who may be interested in expediting the adoption, or would there perhaps be access to a voluntary agency? That should be made clear on the form, as proposed by my hon. Friend the Member for East Worthing and Shoreham.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 10:30, 29 Tachwedd 2001

The clause enables a parent to give advance consent to the final adoption order either at the same time as they give consent to placement or at any time afterwards, and is a means of allowing people voluntarily to give up their child for adoption. It is therefore incumbent on us to ensure that the consent arrangements are fully clear and understood and that people are supported in their decision making. That is why the form of consent and withdrawal of consent will be prescribed in regulations made under clause 50(7) to accompany the implementation of the Bill. It is intended that the form of consent will make clear both the implications of giving advance consent and the process involved in withdrawing it.

Advance consent to placement and adoption will be witnessed by an independent Children and Family Court Advisory Service officer, who will ensure that parents fully understand the implications of what they are agreeing to and that consent is properly given in full understanding of all that it involves. The officer will report that to the court. Clause 97(1) provides for the appointment of CAFCASS officers.

The hon. Member for East Worthing and Shoreham is being either disingenuous or slightly mischievous in suggesting that the flowchart will be used by CAFCASS officers and others who support birth parents. In fact, the flowchart is designed to support legislators in the process of understanding, and I am extremely proud of it.

The adoption agencies regulations will oblige agencies to make clear to parents the timing and procedure for giving and withdrawing consent, as well as the legal and procedural implications of giving advance consent to adoption alongside consent to placement. I assure the hon. Gentleman that the need to provide a written explanation of the process will remain in regulations. It is currently in regulation 7. As for the possibility of a birth parent being in a state of shock when giving advance consent, I assure members of the Committee that advance consent to adoption can be withdrawn at any point until an adoption application has been made.

To respond to the questions raised by the hon. Member for Huntingdon (Mr. Djanogly), the measures for adoption support that we will discuss under clause 2 and related clauses also make provision for adoption support for birth parents.

Given those assurances, I hope that the hon. Member for East Worthing and Shoreham feels able to withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am greatly humbled by the Minister's sensitivities about her flowchart. There was no derogatory intent—

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

All right, there was. It is a terrible flowchart, and it confuses everybody.

I endorse the useful comments made by my hon. Friend the Member for Huntingdon. Explanation should be given at a very early stage and that should be tied down in the Bill. The Minister referred to the need for continuing advice. When we discuss clauses 2 to 16, we shall seek specific guarantees from the Government on the way in which such support services will operate. According to the Minister, they will be available to the birth parent as well, which is helpful.

I was not aware that a written explanation of the options open is currently prescribed under regulation 7 and the Government intend that to continue. That, too, is helpful. The full answer that has been given goes a good way towards giving us the assurances that we require. On that basis, 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. 45, in page 13, line 26, leave out from `section' to end of line 30 and insert

`will automatically be informed by the adoption agency of any application for an adoption order unless he has withdrawn his right to receive such information.'.

We will discuss the amendment without reference to the flowchart. The amendment deals with the notification of parents who have consented to adoption, and would remove part of subsection (4). It strikes me as odd to ask a parent who has given consent to adoption, in effect, to opt into an information system. For the reasons that I mentioned earlier about the pressures on a parent about to give up a child for adoption, there should be a statutory right for that parent automatically to be told about the various processes that are coming up. It seems for the Bill to state that a parent has to express his or her wish to be informed of any application for an adoption order—a key part of the whole process. Surely, it should be that person's automatic right to be notified that a significant juncture in the process is about to be reached.

The amendment also raises the question, which I mentioned earlier, of the satisfactory notification of such a person on how to exercise their right to withdraw consent. If they are not automatically told that an adoption order is being applied for, they may not know that the period within which they may withdraw their consent is running out. The amendment would give that person an automatic right to be informed by the adoption agency of any application for an adoption order unless they have opted out of the system.

If, for some reason, a person made the decision to be completely divorced from the proceedings, because they were handing their child over and were adamant that they had made up their mind and did not want further information, that would be entirely up to them—they could opt out—but surely it is right for everyone else—the majority, I imagine—to be automatically informed when every stage is coming up, especially the application for an adoption order. They will then know what time they have in which to take avoiding action if they have changed their mind. It is a basic human right automatically to be given information about the future destination of one's child during the adoption process.

I hope that the amendment is helpful. It is intended to make the legislation absolutely watertight and ensure that parents are fully apprised of all facts at every juncture, giving them the opportunity to continue with the decision made, or to reverse or block that decision.

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

The Government believe that the Bill already provides what is needed in terms of giving notice in cases of advance consent. It is important to understand the difference between clause 18 and clause 19. The purpose of clause 19 is to allow, in the rare cases that arise, advance consent to be given to the making of the final adoption order at the same time as consent to placement. That will make provision for cases in which parents want to relinquish a child for adoption and not be further involved in the legal process. The arrangement will replace in part the freeing orders that can currently be used in situations in which parents consent to relinquishment.

Of course freeing orders can also be made against parents' wishes, but not under clause 19, in which the order is voluntary. It will be used solely in cases in which parents want to relinquish a child for adoption, hence the presumption that they will not want to be notified of the final adoption hearing. It is right that parents should be able to decide that they want to receive notice of the final adoption order hearing, and subsection (4) provides for that; if parents opt in, the provisions in clause 126(4)(c)(ii) apply and they should automatically receive notice. However, after giving their consent, they can decide at any point that they want to opt out of the notice, and they can subsequently opt back in again.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Before the Minister befogs us with references to various clauses, may I ask her—an answer will provide a useful background to the clause—whether she knows the approximate number of adoptions wherein parents withdraw consent because they have had a change of heart at the eleventh hour? How relevant is the possibility of people changing their mind?

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

I do not know the answer to that off the top of my head, but I shall write to the hon. Gentleman. I emphasise that advance consent to adoption is designed to enable parents in the rare cases in which they want to relinquish their children and to consent in advance to do so. The prescribed form of consent will explain that to parents and, as I said, an independent CAFCASS officer will witness that consent to ensure that it is properly given and that the parents understand what is involved.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

A straightforward way to proceed would be to ensure that the consent form has a tickbox, so, at the very least, the matter would be considered when consent is given, even though parents can change their minds later on.

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

I agree that that would be an obvious and sensible way in which to approach the issue of advance consent. The question is whether, given the nature of advance consent, the amendment is appropriate. On balance, I believe that our approach is correct, and I hope that the hon. Member for East Worthing and Shoreham will feel able to withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am grateful to the Minister for her clarification in respect of a probing amendment. It is a splendid suggestion by my hon. Friend the Member for Huntingdon that there should be a box to tick, like the one on the football pools that says ``no publicity required'' if one is fortunate enough to win.

I do not completely follow the Minister's logic in her response to the case that I have made. Should it be easier for someone to opt out of the information process than to opt into it, given that a person may not be completely clear about that process? Although she has given us assurances about the way in which the regulations will prescribe explicit written information, I am not entirely assured, but at least she has given undertakings that the matter will be addressed in detail in the accompanying regulations. That is an example of how we are debating the Bill with one arm tied behind our backs because we have not seen the regulations. So much of the Bill depends on the small print, and the devil will be in the detail. When the detail appears, the Committee's work will have been done.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 10:45, 29 Tachwedd 2001

That is why the regulations will be extensively consulted on.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Obviously we are pleased about that, but the Government will have the final decision on which consultation to take on board and which will influence the final regulations. That the Government have been entirely uninfluenced thus far by the enormous body of witness statements, submissions and consultation on disclosure of information does not bode well for things being taken on board in future. However, we must take the Minister's word that the regulations will be addressed fully, properly and to the satisfaction of the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.