Clause 41 - Child to live with adopters before application

Adoption and Children Bill – in a Public Bill Committee am 2:30 pm ar 29 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset 2:30, 29 Tachwedd 2001

I beg to move amendment No. 25, in page 25, line 20, leave out `ten' and insert `thirteen'.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

With this it will be convenient to discuss the following amendments: No. 26, in page 25, line 22, leave out `six months' and insert `thirteen weeks'.

No. 27, in page 25, line 26, leave out `one year' and insert `thirteen weeks'.

No. 28, in page 25, line 29, leave out from `than' to end of line 30 and insert `thirteen weeks'.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

I hope that there will be no confusion over these amendments, because they seek to remove confusion. I was perturbed to read the clause, because as a reasonably intelligent Member of Parliament, I found it peculiar that different time factors related to different forms of prospective adopters. If I find that confusing and muddling, heaven knows how prospective adopters might find it, especially if they fall into more than one of the categories.

I will discuss amendment No. 25 before turning to the amendments grouped with it, which are all essentially along the same lines and seek to find a way of providing some simplicity for the prospective adopter and to work in the best interests of the children who are being adopted.

Amendment No. 25 applies to line 20, in subsection (2), which states:

``in the case of an application by a married couple, with one or both of them at all times during the period of ten weeks''.

In other words, the child must have lived with one or other partner for 10 weeks during the period preceding the application.

At first, that seemed reasonable, but when I read the rest of the clause, it began to dawn on me that it might not be so reasonable. If the applicant is a step-parent, the period suddenly changes from 10 weeks to six months. It is apparently okay for an application to be made when the applicants are unknown to the child but the child has lived with them for 10 weeks, having been placed there by an adoption agency. On the other hand, that period changes to six months when the applicant is known to the child, as his or her step-parent. The clause continues by stating that if the applicants are foster parents—and therefore well known to the child, unlike the applicants in subsection (2)—they must have the child living with them for a year before they can make an application.

The clause continues until we reach the point dealt with in amendment No. 28, in line 29. Subsection (5) states:

``In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a married couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.''

Why do we jump from 10 weeks for one case to six months for another, one year for another, and three years out of five for yet another? Such differing times will lead to a great deal of confusion. The legislation that we make here should be as simple and readily understood as possible.

My amendments are to some extent probing amendments, because there is nothing magic about 13 weeks, just as there is nothing magic about 10 weeks, six months, one year or five years. However, in the case of children's welfare, delay is not something that we should encourage through legislation. In previous sittings, we emphasised the fact that we do not want excessive delay that prevents children from being adopted. Some of those subsections seem to encourage delay and create inconsistency in the treatment of prospective adoptive parents.

The amendments would simply remove confusion from the legislation, avoiding delay and looking after the best interests of the child while enabling an easier understanding of the law by those wishing to adopt. I hope that the Minister will look kindly on my amendments, and, if she is not prepared to accept them as they stand, will redraft them in an alternative form.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I shall speak briefly in support of the amendments, which were moved so ably by my hon. Friend the Member for North Dorset (Mr. Walter). For reasons mentioned earlier, this is a complex Bill and we need to do all that we can to make it simple, straightforward, logical and understandable. There also needs to be a greater degree of equity in how we deal with the different types of people who qualify to adopt children.

My hon. Friend rightly pointed out the enormous disparity between the qualifying times for different people and the fact that overall it seems to foster delay rather than curtail it. The overriding consideration, subject only to paramountcy, which we discussed on clause 1, is set out in subsection 1(3), which states:

``The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.''

In later clauses, we shall be defining delay and how one can go about curtailing it.

The average periods set out in the Bill are too long. If the Bill is structured properly and if the regulations that eventually accompany it do the job properly, we should be able to speed up the process. One of the main considerations behind the Bill was to speed up the process. The average adoption time is two years and nine months, but although the average adoption time for babies is much shorter it is now beginning to lengthen again. Urgent action is needed.

The other overriding principle behind the Bill is the need to speed up the adoption of children in care; that is particularly relevant for children who are threatened in their current environments. Later clauses deal with the relative merits of whether couples who adopt children should be married. By my calculation in the table of who qualifies and for how long, married couples are given the prime, short time of 10 weeks' scrutiny, as my hon. Friend pointed out. Step-parents have six months, which makes them 2.6 times less suitable to qualify for a quick adoption, yet step-parents form one of the largest part of adoptions.

Many adoptions are not of babies coming to a completely different family—last year, only 200 babies were adopted by new families—but are adoptions by existing step-parents who want to regulate an existing relationship. We then move on to foster parents, who have a year, which makes them five times more vulnerable to scrutiny than married couples. Ultimately, all the others not yet mentioned have three years, which means that they require 15 times more scrutiny.

Those variations are completely out of synch. It behoves the Minister to justify those figures. Perhaps it is existing best practice, which needs to be justified if it is to remain best practice under the Bill. Perhaps new research and new guidance leads the Government to believe that those long times and those differentials are necessary. I support the thrust of my hon. Friend's argument and his reasons for probing the Government. We want ultimately to shorten the time that it takes before children can be properly settled in a stable environment and become the adopted children of whoever the adoptive parents or guardians are to be.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 2:45, 29 Tachwedd 2001

I, too, support the amendments tabled by my hon. Friend the Member for North Dorset. I agree that the times often seem irrational. If a child lived with adult friends who wished to adopt it, but the child was not placed, I believe that the three-year rule would come into play. If it were an older child, those three years could make the process irrelevant in practice. Missing from the provisions is what the child may want. If that older child were to consent to the process, it could be realistic for the three-year rule not to apply. I leave that thought with the Minister.

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

I welcome you back to the Chair, Mrs. Roe. This morning's debate was constructive. We now move on to the part of the Bill that deals with the preliminaries to, and the process of, making adoption orders.

Clause 41 sets out the various residence periods—times during which a child has to have lived with the prospective adopters before an application for an adoption order can be made. It is worth pointing out that the provisions are different to those in the Adoption Act 1976. In that Act, the various periods related to the time before an adoption order was made; in the Bill, they refer to the time before the application. We believe that that is an important improvement.

Opposition Members made much of the point that we need to deliver simplicity and consistency. I disagree about the significance of simplicity or complexity; such considerations are not always paramount. As I hope to explain, it is not necessarily in the best interests of children in various circumstances that everything should be the same. One size does not necessarily fit all when talking about the complicated, difficult and serious circumstances of adoption.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I agree with the Minister, but she rather misses the point. We do not need simplicity by having one-size-fits-all provisions. My hon. Friend the Member for North Dorset and I are not suggesting that the same time should be given for all the categories of people listed.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

He is not. The Bill should allow simplicity of understanding. Without it, delay will be caused by solicitors and lawyers in the courts arguing over the interpretation of the Bill. That is the point that we have consistently been making.

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

My reading of the amendments tabled by the hon. Member for North Dorset is that he is arguing that the time that the child has to spend with prospective adoptive parents before an application for an adoption order can be made should in all circumstances be 13 weeks. The amendment provides precisely that, in every circumstance, the period of time should be the same.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

The Minister is correct; I am looking for simplicity by wanting 13 weeks, but that would be a minimum. I would expect that the courts would take account of the other matters when considering whether to make an adoption order. If the court felt that enough time had not elapsed, and I am sure that the adoption agency would have come to the same conclusion, more time would be required. I suggest that there may be circumstances, particularly when dealing with foster parents or step-parents, when a term of less than six months or a year would be more appropriate if we are to avoid delay.

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

When I have made a little more progress, I shall come to specific exceptional circumstances. However, it is important that we go through in some detail the justification for the different time periods in the Bill. I hope that I shall be able to reassure members of the Committee by doing so.

Amendment No. 25 concerns the minimum period for which the child must have had his home with the prospective adopters before an application to adopt may be made. It applies in cases where the child has been placed through an adoption agency—that is, in agency cases. I am not sure whether Opposition Members are uninformed or whether they had mischievous reasons, but they tried to suggest a distinction between married and unmarried people. However, the real distinction is between agency and non-agency cases and between different sorts of non-agency cases. I shall explain the importance of that later.

The objective of the requirement for a minimum period is to ensure that the child and the prospective adopters have the opportunity to form a relationship such as to justify an application for adoption. Importantly, it would also ensure that the agency had sufficient opportunity to see the applicants with the child, as subsection (7) requires. The amendment would increase the period from the Government proposal of 10 weeks to 13 weeks.

The 13-week figure was included in the draft 1996 Bill. However, responses suggested that it could be cut. Hon. Members have echoed the concerns that have been expressed about the effect that the provision would have, particularly on baby adoptions. Those concerns reflect the fact that the period now runs up to the point of application for the adoption order, rather than the point at which the final adoption is made, as in the 1976 Act. There was concern that babies would be adopted later, despite the fact that speed can be especially important when a child is very young. We therefore took the view that the 13-week period could be cut to 10 weeks. Such a period would still provide sufficient opportunity for a relationship to be formed and for the agency to see the child with the applicants, while going some way towards counteracting any increase in the time before final adoption. That is the position on the time period for all agency placements. Hon. Members will be aware that much of the discussion about placement arrangements has focused on agency cases. We are talking about a large number of adoption circumstances.

Amendments Nos. 26, 27 and 28 concern the time periods that will apply in non-agency cases, and I hope that hon. Members will recognise that important distinction.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Is not the end result of the measures in the Bill that people are forced down the agency route? Will we not put more pressure on social workers and the court system, because people will turn to them for speedy determinations?

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

This is not about forcing anyone to do anything. I shall come to why important differences in agency placements make it reasonable to apply a shorter period to them than to non-agency placements.

In something as significant as adoption, it is in the interests of the child's welfare to ensure that the child and applicant have had a proper opportunity to establish a relationship such as to justify the making of an application to adopt. That is particularly important in non-agency cases, in which there are none of the safeguards of placement through an adoption agency. The longer period that applies to non-agency cases will, therefore, be in the interests of the child's welfare.

For placements through an adoption agency, the agency adoption panel will have approved adoption as being in the child's best interests after thoroughly examining the issue. The prospective adopters will have been rigorously assessed, and the match between the child and the adopters will have been carefully considered. None of those safeguards are in place in non-agency cases. That is why the difference between agency and non-agency placements is important.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

The Minister may be moving on to this, but let me give an example of what might be regarded as an agency case: the prospective adoptive parents might be the child's foster parents. They would not qualify for the 10-week period under the Bill; they would have to wait six months. There is surely a discrepancy in that regard.

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

I thank the hon. Gentleman for that, but he is mistaken. Foster parents who want to adopt will be able to take two routes: a non-agency route, with the time scales that I am about to discuss, and an agency route, which I have outlined. [Interruption.] That is most certainly what the Bill says, and that is the intention. It is open to local authority foster carers to take an agency route.

Amendment No. 26 concerns the residence period for step-parents. The 1996 draft Bill proposed introducing a three-year residence requirement for step-parents. However, given that such adoptions involve one of the child's birth parents, the residence period need not be as long as that for non-agency stranger adoptions. That is why the Bill provides for the period to be six months. Step-parent adoption involves severing the legal relationship between the child, the other birth parent and the wider circle of relations. There should be a route whereby step-parents can acquire legal parental responsibility for a child of their spouse without disrupting wider legal relationships. That is why clause 107 provides a new route to enable a step-parent to acquire parental responsibility for the child of their spouse by agreement between the step-parent and all those with parental responsibility or by order of the court.

The amendments also raise the issue of local authority foster carers who take a non-agency route. The clause states that they can apply to adopt a child who has been with them for 12 months, whether the local authority approves or not. As I tried to spell out earlier, it would be open to them to apply earlier as an agency case, with the agreement of the local authority. That is similar to the position in the 1976 Act, under which an adoption order may not be made in non-agency cases—including those involving local authority foster carers—unless the child has been with the adopters for 12 months. As with all the residence requirements in the Bill, the 12-month period now runs up to the point of application, not the point at which an order may be made. That is a more sensible approach, given the variable length of court proceedings. We have shortened the time for foster carers that was proposed in the 1996 draft Bill, which provided that they could not begin to give notice of their intention to adopt without the local authority's consent unless the child had been with them for three years.

Amendment No. 27 would allow foster carers to apply to adopt a child without the approval of the local authority when the child had been with them for 13 weeks. That would be a substantial change from the position in current legislation, in which, in foster carer non-agency cases, an adoption order may not be made until the child has made his home with at least one of the applicants for 12 months. That change could risk creating a deterrent to families that use voluntary accommodation under section 20 of the Children Act 1989, as they might perceive that a foster carer could apply to adopt their child after 13 weeks.

We also need to consider the interests of the child. For something as significant as adoption, it is important that the child and applicant have a proper opportunity to establish a relationship that justifies the making of an application to adopt. That is especially important in non-agency cases, as I suggested, when none of the safeguards of placement through an adoption agency apply, and when the child has not been matched or placed with the foster carers with a view to adoption.

Local authority foster parents will be able to seek formal approval from the local authority as prospective adopters for children for whom they are caring. Clause 19 provides that the authority may leave the child with them if they are approved as prospective adopters. That counts as an agency placement under the placement provisions. If a local authority does not approve them as prospective adopters or agree to them adopting, the foster carers can still seek to adopt a child for whom they are caring by independently giving notice of their intention to apply to adopt the child as a non-agency case, providing that the child has been with them for a year. The one-year period relates to such cases.

A point was made about specific circumstances. If the child has been with the foster carers for less than a year but they still want to apply to adopt without the authority's agreement, they can seek the leave of the court to make an earlier application under clause 41(6).

Amendment No. 28 deals with other non-agency applications, which could include those when private foster carers or relatives proposed to adopt the child. The Bill provides that the application may not be made unless the child has lived with the prospective adopters for three of the previous five years. That was the approach suggested in the 1996 draft Bill, and it was generally supported in the consultation on this Bill. It is broadly consistent with the provisions in the Children Act 1989 that govern applications for residence orders, under which anyone with whom the child has lived for three of the previous five years is entitled to apply automatically.

The amendment would cut the residence order to 13 weeks, even though an adoption order may currently not be made in non-relative or non-agency cases unless the child has been with the adopters for a year. The Government cannot accept the amendment for broadly the reasons that I have given, which were about what was in the child's interest in non-agency cases.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 3:00, 29 Tachwedd 2001

The hon. Lady has spoken at some length, which has been helpful. However, she has not mentioned what the child wants. Will she suggest whether the views of the child, which do not seem to be mentioned in the clause, should be relevant to the process? That is especially important in relation to subsection (5), because three years is a long time.

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

I placed the interests and needs of the child at the beginning of my response. As has been suggested, we must bear in mind that agency placement may be appropriate if there is a strong desire and approval for it to be taken. We propose a reduction from 13 weeks to 10 to overcome some of the possible causes of delay that have been mentioned.

We believe that it is in the child's interests to ensure that, for something as significant as adoption, the child and the applicant have a proper opportunity to establish a relationship that will justify the making of an application to adopt. We believe that that extends also to relative applications. That is why the 1996 draft Bill proposed introducing a three-year residence requirement for non-agency adoption cases. That was generally supported in the consultation on the Bill. It is broadly consistent with the provisions of the Children Act governing applications for residence orders where anyone with whom the child has lived for three of the past five years is automatically entitled to apply. We believe that it is right that those periods should be brought into line. However, as with foster care applications, subsection (6) allows for the court's leave to be sought to make an earlier application, which will allow for cases where there is a particular reason why the general approach should not apply.

Members of the Committee are rightly concerned about safeguards. Subsection (7) provides that in any adoption case the court is not to make an adoption order unless it is satisfied that the adoption agency, or local authority if it is a non-agency case, has had a proper opportunity to see the child with the applicants in their home. That will ensure a proper assessment of the suitability of the adoption can be made.

I have made a compelling argument for the Government's belief that, in difficult adoption cases, one size does not necessarily fit all. The distinctions between agency and non-agency adoption routes need to be recognised, as do the different circumstances of various cases. I hope that the hon. Member for North Dorset will withdraw the amendment.

Photo of Robert Walter Robert Walter Ceidwadwyr, North Dorset

I was not—at least, I hope that I was not—suggesting that one size fits all. I had hoped that the amendments would convey to the Minister that a certain minimum time should be common across all cases. I hoped that good practice would probably indicate an appropriate time in particular cases, rather than prescriptive time limits being imposed that could lead to delay. In a quest for simplicity, amendment No. 25 would have extended the time from 10 weeks to 13. However, I freely admit that those three weeks would not make an awful lot of difference. I was more concerned about what I considered to be the excessive delays that might result from subsequent clauses, and that prompted my subsequent amendments.

I accept the distinction that the Minister made between agency and non-agency cases—that was perfectly clear in the Bill—but I am not convinced by what she said about foster parents. I am not sure that the clause necessarily permits what she suggests. Subsection (4), which I sought to amend, states:

``If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.''

It does not say ``if the applicants are foster parents and the child is an agency case''. It merely states

``if the applicants are . . . foster parents''.

If the court were interpreting that, it would say that the application must be delayed for a year. In that sense, it is bad law.

I ask the Minister to reconsider the wording of that subsection, because it does not make the distinction in the case of foster parents between agency and non-agency cases. To be slightly mischievous, I wonder whether there is a sub-plot to try to deter foster parent adoptions because there is a shortage of foster parents and it is not in the local authority's interests to encourage foster parents to adopt children who are placed with them because they are then permanently removed from the pool of foster parents.

We have had a good discussion on the subject. I am not entirely comfortable with the answers that have been provided, but I hope that we have rehearsed the arguments in favour of simplicity in the interests of the child. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clauses 42 to 44 ordered to stand part of the Bill.