Clause 45 - Conditions for making adoption orders

Adoption and Children Bill – in a Public Bill Committee am 3:00 pm ar 29 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

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

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Before we motor through this raft of clauses, perhaps we could pause for a breather and ask the Minister to elaborate on the intentions behind the clause, which deals with the conditions for making adoption orders. I probe along the lines of the submission that we were given by the Family Rights Group, which raised serious questions about the compatibility of parts of the clause with the European convention on human rights, an important measure that now dominates every Government measure, with the result that some cases have ended in tears.

The clause provides that parents will not be able to oppose an application for an adoption order when they have given advanced consent or a placement order has been made, unless the court gives such leave. One of the conditions, in subsection (7), is dependent on a change of circumstances.

The explanatory notes give a rather vague example of someone who has a drink or drugs problem. The Family Rights Group is worried that the provisions in the clause will mean that in the vast majority of cases parents will not have their consent to adoption, as opposed to placement, considered, and are therefore unlikely to receive funding from the Legal Services Commission to be heard in the adoption proceedings. Indeed, there is no obvious mechanism by which they will even be informed of the forthcoming adoption hearing, a point that relates to our deliberations this morning.

According to the Family Rights Group, the consequence of that is that birth parents may not know that they can apply for the court's leave to have their consent considered when there has been a change of circumstances. Another consequence is that birth parents are unlikely to be in court to argue about issues of continuing links between the child and the birth family network and whether another order should be made instead of an adoption order, as provided for in clause 1. A further consequence is that a birth relative who wants to care for, or request continuing links, with the child may not know about the adoption hearing, thereby rendering hollow the provisions in clause 1(4)(f). That echoes some of the points that I made this morning about the need to ensure that everyone is fully informed and has every opportunity to make representations if they disagree with how the proceedings are going ahead.

Despite the fact that the moniker of the Secretary of State is on the front of the Bill to say that it complies with the ECHR, the Family Rights Group specifically draws attention to article 6 of the convention, which states:

``In the determination of his civil rights and obligations . . . everyone is entitled to a fair . . . hearing within a reasonable time before an independent and impartial tribunal established by law.''

The group makes the case that the article clearly applies at the adoption, as well as the placement order, stage, because an adoption order determines the parents' civil rights to exercise their parental responsibility and to continue to have a legal relationship with their child. If they have no right to be heard at the adoption hearing unless they can prove sufficiently a change of circumstances—a highly discretionary term—the court will not, effectively, grant them the right to be heard. They will therefore be denied a fair hearing, and that seems to contravene article 6.

Article 8 of the convention states:

``Everyone has a right to respect for his private and family life . . . There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of . . . the protection of health or morals or for the protection of the rights and freedoms of others.''

Again, the Family Rights Group submits that

``the severance of the parent-child legal relationship constitutes an interference with this right, both for the parent and the child. In order for it to be deemed `necessary in a democratic society' by the court, we suggest that, the parent should be present and have a right to be heard on the issue of whether another kind of order, for example under the Children Act, may more adequately promote the child's welfare.''

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre 3:15, 29 Tachwedd 2001

Does that not make the point that it is important for the parent to be heard at every stage, in particular at the placement order stage, when fundamental issues are involved, and, I hope, earlier in the proceedings?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The hon. Gentleman is right; that reinforces my point about keeping everyone informed throughout the process. There seems to be an inconsistency between the placement stage and the adoption hearing stage. There may be reasons for that inconsistency, and I am waiting to be enlightened by the Minister on that score. I should also like her assurance that in light of the FRG submission, which I trust that the Government have read, they do not envisage a challenge under article 6 or 8 of the European convention on human rights.

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

The clause sets out three conditions, one of which must be satisfied before the court can make an adoption order. First, the court must be satisfied that the parents have consented, either at the time or in advance under clause 19. We had significant discussions this morning about the safeguards and the process relating to support for birth parents in making that decision and the extent to which it is possible for birth parents to withdraw that consent. The Government responded this morning to some of the issues that the hon. Gentleman has raised this afternoon.

The court must be satisfied that the parents have consented, or that the parents' consent should be dispensed with on the grounds of the child's welfare. That is line with clause 1, which makes the child's welfare the paramount consideration in all decisions relating to adoption.

To reassure the hon. Gentleman about human rights compliance, it would be—

Sitting suspended for a Division in the House.

On resuming—

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 3:34, 29 Tachwedd 2001

I was in—full flight might be too strong a phrase—some sort of flow before we suspended.

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

A flow chart—yes.

I was about to reassure the Committee about the court process—in relation to our discussion on clause 1—to dispense with parents' consent. The court will consider whether a placement order or an adoption order is in the child's best interest. It must give regard to all the factors in the checklist in clause 1(4) and conduct a cost-benefit analysis from the child's point of view. The welfare checklist specifically recognises the child's relationship with his parents and their ability to provide the child with a secure environment in which he can develop and that meets his needs. In accordance with clause 1(6), the court must consider alternatives to adoption and decide whether making an order would be better for the child than not doing so.

If the court decides that an order would be in the child's best interest and the parents give consent, the court must make the order. If the parents do not consent, the court must decide whether that consent should be dispensed with, which will be done only if the court is satisfied that the child's welfare requires consent to be dispensed with. When that judgment is made, the court must give regard to the parties' rights under the European convention on human rights and convention case law. The Bill is ECHR-compatible because the court has discretion and can weigh up rights in that situation. The hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned compatibility with article 6 of the convention. I hope that I can reassure him and address further issues that he raised about parents' consent.

In a agency case, the matter of birth parents' consent will have been dealt with at the time of application for an adoption order. The birth parents will either have consented to placement, with the safeguards and processes that we have discussed, or there will be a placement order. Such issues are dealt with early in the placement process to avoid the birth parents facing a fait accompli. Parents and guardians will be notified of the hearing unless advance consent is given. If they wish to oppose the making of the adoption order at that stage, they must seek the leave of the court, which may be granted only if there has been a change of circumstances. The door is, therefore, left open for cases in which the court is satisfied that there has been a significant change of circumstances.

Obviously, the circumstances of the case will influence whether there is an interpretation of change of circumstance. However, such factors that we envisage that would represent a change of circumstances are successful drug or alcohol rehabilitation or recovery from mental illness to allow the parent to care for the child, or the identification of a previously unknown natural father who is willing and able to provide a home for the child. Article 6 of the convention, therefore, is satisfied.

In placement order cases, there will be a court order to determine the parents' rights. In placement by consent cases, if the birth parents wish to oppose the making of the order, the court will decide whether they should do so. Article 6 is also satisfied in that instance. The court must give regard to the convention when making the adoption order.

The hon. Gentleman asked whether parents will be informed about the final adoption hearing, and they will. This morning, we discussed provisions in clause 126 that provide that parents must be informed about the final adoption hearing. They must be notified of the hearing and the agency must keep them informed of the stages of the process. That is set out in regulations. I hope that I have covered some of the hon. Gentleman's points. I have described the first of the three conditions in the clause.

The second condition is that the child has been placed for adoption through an adoption agency, either with consent, or under a placement order. In both of those cases, the birth parent can oppose the making of the final adoption order only with the leave of the court. That provision has been discussed, and concern has been expressed about it. A difficult balance must be struck between the stability and security of the child, the needs of the prospective adopters, and the needs of the birth parents. The provisions should reduce the number of contested final adoption hearings, which will provide greater stability for the child, and security for prospective adopters. That will benefit children and prospective adopters, by seeking to deal, as far as possible, with the issue of consent to adoption and placement for adoption at an earlier stage in the process, through the new placement provisions.

The benefit for birth families comes earlier in the placement process. We have discussed that. Where they do not consent to placement, there must be a court hearing, and a placement order must be made before the child can be placed. That is in contrast to the current position, where children in care may be placed for adoption without the consent of the birth parents, who can then find themselves faced with something of a fait accompli at the adoption order hearing, as the child might have been placed with the prospective adopters for several months. As I have emphasised, where a placement has been made with the consent of the parents, the parents are free to withdraw that consent until the moment when the application for the adoption order is made.

The third condition is that the child is freed for adoption by virtue of a pre-existing freeing order. One of those three conditions must be met for the court to be able make an adoption order.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I wish to address the issue of the child's consent, which has human rights implications. We discussed the matter in relation to clause 1. It is unfortunate—and symptomatic of the bizarre timetabling—that we were unable to speak about the matter in the context of placement, because, as the Committee has recognised, that is now the key stage. As that opportunity has gone by the wayside, it is important that we discuss the matter in the context of adoption orders.

Shortly after I raised the issue in debating clause 1, the Committee adjourned for lunch—

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I did not have lunch. I had business to attend to.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Well; during lunch, I received a paper from the Adoption Law Reform Group, which has been briefly mentioned by my hon. Friend the Member for North Dorset. I want to refer to it again, as it addresses important issues that we have not adequately covered.

The Adoption Law Reform Group is linked with other bodies, such as the British Agencies for Adoption and Fostering and the National Organisation for Counselling Adoptees and Parents. Its paper states that the wishes and feelings of the child should be taken into account: any decision on adoption should involve the formal agreement of a child. It also notes that the adoption law review, in its report to Ministers of October 1992, recommended that the agreement of a child over the age of 12 should be required. The draft Bill of 1996 included such a provision.

The paper also states:

``the lack of a formal process for obtaining the child's consent runs the risk that insufficient weight will be attached to the child's views.''

Its specific suggestions are 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 adoption; to refuse consent to adoption; to decline to give or refuse consent; to give full expression, with appropriate help, to his or her wishes and feelings in connection with the application.''

Finally, the paper states,

``In giving its decision the court should be required to explain how it has taken the child's wishes and feelings into account.''

Photo of Liz Blackman Liz Blackman Llafur, Erewash 3:45, 29 Tachwedd 2001

Does the submission that the hon. Gentleman has just read out have regard, at any point, for the enormous pressure put on young people going through the adoption process by birth parents unduly pressurising them not to consent? The Minister mentioned the links that children continue to have with birth parents, even though there may have been significant abuse. Are those issues addressed?

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Yes, indeed they are. The submission refers to the concern that

``it may place too painful a burden on the child to ask him or her to `sign away' the birth family.''

However, it states that, on balance, it is correct that the child has such rights. The child's rights are dealt with under the Human Rights Act 1998, and that will lead to problems in the future if we do not address the matter now.

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

It might be helpful to respond to the point about consent. I have a problem with the hon. Gentleman's points with regard to the use that he makes of the understandable concern that is shared by all members of the Committee and the Government to ensure that the child's wishes and concerns are taken, recorded, listened to and represented to the court, and that there is a clear process for doing that. There is a distinction between that and the burden and pressures placed on a child by introducing into legislation a requirement for the child's consent to a placement and adoption order. I refer hon. Members back to some of the questioning in the evidence sittings last week, when we probed the extent to which some of those giving evidence felt, as we all do, that it is good practice that children's views should be gathered and represented to the court. The difference between that and introducing a requirement for consent, and the guilt that that would cause to the child—

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I only want to make the point that the memorandum is dated 21 November, which must have been after or very close to the dates on which we heard evidence. I apologise for not remembering the exact dates. The document is signed by Adoption UK, the Association of Directors of Social Services, British Agencies for Adoption and Fostering, the British Association of Social Workers, the Catholic Child Welfare Council, the Consortium of Voluntary Adoption Agencies, the Family Rights Group, the National Children's Bureau, the National Organisation for Counselling Adoptees and Parents, the Natural Parents Network, and the Overseas Adoption Helpline. That is a comprehensive list, and they all say the same thing.

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

My argument still stands in relation to whether, in all circumstances—this would be the effect of some of the amendments tabled by the hon. Gentleman—the consent of the child would be necessary for a placement or adoption order. That is our concern. The provisions in the Bill, and the reassurances that I have given previously to the Committee about the processes through which we will ensure that the child's wishes and interests are heard and represented, are appropriate. For those reasons, I commend the clause to the Committee.

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)

I wish to ask the Minister about subsection (3) and the consent of the parent or guardian. If a parent has signified consent in general terms to adoption, but dislikes the particular proposal for adoption, does he or she have to cross the bridge of applying to oppose the making of the order, or can he or she do so as of right? It may confuse many people if, on the one hand, they can withdraw at will their consent to adoption but, on the other hand, require leave to make such a withdrawal.

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

Whether the parent or guardian has to ask leave to be a party to the proceedings and to oppose the final adoption order is based on the point in the process at which we have arrived. If the placement is by consent, up to the point when an application order is made the parent can withdraw his or her consent. After that time, the parent can make an application to the court for his or her objections to be registered on the basis that there had been a change of circumstances.

I have spelled out clearly the balance that must be achieved between the needs of the birth parents, the prospective adopters and the child, and where their relative needs are represented in the course of the process. The Government believe that such a reasonable balance affords all parties ample opportunity to have their views heard throughout all stages in the process. It also ensures that there is some certainty as we near the end of the process, having given consideration to consent earlier because of the placement provisions.

Question put and agreed to.

Clause 45 ordered to stand part of the Bill.

Clause 46 ordered to stand part of the Bill.