Clause 104 - Avoiding delay

Adoption and Children Bill – in a Public Bill Committee am 6:15 pm ar 4 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 6:15, 4 Rhagfyr 2001

I beg to move amendment No. 141, in page 54, line 8, leave out from '(2))—' to end of line 17 and insert—

'(a) draw up a timetable with a view to disposing of the application without delay; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

(2) Rules of court may—

(a) specify periods within which specified steps must be taken in relation to such proceedings; and

(b) make other provision with respect to such proceedings for the purpose of ensuring, so far as is reasonably practicable, that they are disposed of without delay.'.

Photo of Mr George Stevenson Mr George Stevenson Llafur, Stoke-on-Trent South

With this it will be convenient to discuss amendments Nos. 152, in page 54, line 10, leave out 'without delay' and insert 'within 28 days'.

No. 153, in page 54, line 13, leave out 'may'.

No. 154, in page 54, line 14, leave out from '(a)' to 'and' in line 15 and insert

'will state that any prescribed steps which must be taken in relation to such proceedings must commence within 60 days'.

No. 155, in page 54, line 16, after '(b)', insert 'may'.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The amendments relate to a very important part of the Bill dealing with the whole question of avoiding delay; a term that has featured large in our deliberations since we debated clause 1. Together with the paramount considerations for the welfare of the child, the question of delay is an important consideration on which the whole Bill is based, and we wholly concur with that. It is imperative that we define delay as closely as possible, giving clear guidance to practitioners as to what constitutes delay. ''Without delay'' is a very open-ended term that can be interpreted in a whole host of different ways by legal practitioners and other professionals dealing with adoption.

On amendment No. 141, members of the Committee will recall that we have been concerned throughout our proceedings to reduce the possibility of anomalies between the Bill and the Children Act 1989. The consequence of not doing so is that lawyers in court or parents arguing against an adoption agency will be able to pick and choose between the welfare checklist in the 1989 Act, as opposed to the rather different welfare checklist in the Bill. That can only delay proceedings and not provide for a clear resolution of the future care of the child. The amendment would redraft subsections (1) and (2), using exactly the same language as section 32 of the Children Act. I know that the Minister will say that the Act does not deal specifically with adoption, but it deals with very similar considerations regarding timetables and delay.

Amendment No. 152 addresses the need to put some closer definitions in the Bill. The clause refers merely to drawing up a timetable ''without delay'', which can be open to all sorts of interpretations. The amendment would replace that with ''within 28 days''. We are pleased that the Government appreciate the need for a timetable so that everybody who is party to the adoption knows exactly the time frame in which they are working. If that is not adhered to, due complaint and representations can be made. The amendment would require that the timetable should be drawn up within 28 days.

Amendment No. 153, which is contingent on amendment No. 155, would omit the word ''may'', which is a word that we never like to see in Bills in any case. The clause says that rules may

''prescribe periods in which prescribed steps must be taken in relation to such proceedings''

and then says that rules ''may'' make other provisions with respect to such proceedings, those two are a pair.

In amendment No. 154 we have talked about timetables for when various steps should take place along the adoption track. As the Bill stands, there is no provision for when that timetable should start. We are saying that the clock should start ticking within 60 days of the start of proceedings. These are very closely linked, if slightly confusing, amendments—the bottom line of which is to give some more detailed substance to what delay means and how we can avoid it.

I mentioned that the clause mirrors section 32 of the Children Act 1989, but not exactly; that is what we are trying to rectify. That section provided that rules could be made specifying time periods within which steps in care proceedings must be commenced. No rules have been made under that provision, so the courts—while paying lip service to the principle of reducing delay—have not been under specific time constraints. There is therefore no reason to suppose that any rules will be made under clause 104 either.

Rather quaintly, explanatory note 222, on page 53 of the explanatory notes fails to appreciate this point altogether. It rather glibly states:

''Clause 104 is a new provision similar to section 11 of the Children Act 1989 that is intended to avoid delay in the court process. It imposes an obligation on the court, where it is dealing with any matter where the issue of whether a placement or adoption order should be made may arise, to draw up a timetable and give directions that are necessary to ensure that that timetable is adhered to.''

One can only say that clause 104, as drafted, does nothing of the sort. Without specific time limits, the concept of purposeful delay would continue to hold sway in the courts and care and adoption proceedings would continue to drag on for years, as they do now.

What is needed is a specific provision, giving specific time limits for various steps. We have attempted to provide that—quite crudely, I admit—and have drawn up the figures as they appear reasonable on the face of it. However, we are entirely amenable to the Minister's saying that she agrees with us in principle, but using her own definitions and time scale in the Bill.

We are trying to avoid the problem, which happens far too often, of allowing children, particular older children, to get lost in the care system. We have seen that the longer it takes to relocate the child into a new settled, stable and caring family, the more likely the damage on that child, particularly at a younger age. The amendments are a perfectly reasonable attempt to avoid the process being strung out even more by expensive lawyers arguing the toss over what constitutes delay. Certainly the experience of the Children Act 1989 has shown that arguing over that definition has wasted a lot of time. The timetables have not been properly instituted. We are attempting to remedy the problems of that Act which we do not want to be replicated in the Bill.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk 6:30, 4 Rhagfyr 2001

Thank you, Mr. Stevenson, for allowing me to comment briefly on the amendments.

My hon. Friend the Member for East Worthing and Shoreham said that the amendments were a crude attempt to improve things. He does himself down; the amendments have been very well drafted and are well worthy of acceptance. I certainly endorse what he says about trying to avoid delay. That is the essence of the Bill. I draw hon. Members' attention to some of the evidence that has been submitted to the Committee. For example, the memorandum from—ASIST—Adoption Support in Society Today is interesting and well worth reading. It states in column 372 of the other memorandums and letters:

''One of ASIST's main concerns centres on clauses in the Bill which could hinder the implementation of its aims. It states in the introduction to the Bill 'Any delay is likely to prejudice the child's welfare' ''.{**W4**}

It refers specifically to the clause, and whether it could be improved.

In other evidence, the Law Society says that it is crucial to avoid delay. It notes clauses 1(3) and 104, which cover that point, and adds:

''We would be particularly interested to contribute to consultation on case management rules.''{**W4**}

I hope that the Minister takes that into account and examines case management rules.

I agree with my hon. Friend that the clause needs more teeth and more focus; it must be more precise. Otherwise, we could end up in a lawyers' paradise. If I may say so without sounding patronising, the Minister answered our technical questions very well. In the Committee's spirit of good will, I hope that she will conclude that our amendments have more substance, more bite, and are better worded than the clause. If she will not accept them today, will she reconsider the clause and return to it on Report, or in the other place?

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I concur with the opinions of my hon. Friends the Members for East Worthing and Shoreham and for North-West Norfolk. The clause is imprecisely drafted. The scope for a lawyer to argue about what it means is immense, and tightening it could save much time in the courts. I support the periods set out in the amendments.

I have some further concerns. For the clause to kick into play, proceedings for an adoption order or placement order must take place. In the early stages, a child may have been on the adoption register for about six months. If that child is mature and wants to be adopted, he may not like the fact that he has been left on the register. He may feel that the local authority is not doing what it should to ensure his adoption. If an authority has not done what it should, how can children ensure that a judge insists on drawing up a timetable and instructing the authority to do x or y? Such provision seems to be missing. It may appear in a different guise elsewhere in the Bill. Will the Minister elaborate?

Similarly, it is correct to mention the position of prospective adoptive parents. If they have been approved, they may feel that they have not been given access to a child whom they believe to be suitable, or that the pre-placement order process is not being pursued speedily. What remedies would they have to speed up the process?

These are more general issues around the specifics of the clause. The way in which the clause deals with the orders when people are already in court needs to be tightened up, but needs to be expanded to deal with the situation in which people want to go to court but cannot get off the starting blocks.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

I echo the comments of Opposition Members that the clause is important. A major aim of the Bill is to reduce delay, and the court process plays an important part in that. I assure the hon. Member for North-West Norfolk that I will consider the Law Society's comments on case management rules.

We want to improve the court process and reduce unnecessary delays in adoption. That is why we specifically included in clause 1(3) an obligation on courts and adoption agencies to bear in mind that, in general, any delay in reaching a decision about the adoption of a child is likely to prejudice the child's welfare. If a court needs to consider a placement or adoption order, it will be obliged to draw up a timetable and give any necessary directions to ensure that it is adhered to. The clause will ensure that the courts maintain a tighter control on adoption and placement orders and do not allow drift, to which hon. Members have referred. The Bill will also give a power for rules of court to set out the time scales in which certain processes should take place.

Amendment No. 141 would require the court to draw up a timetable to dispose of any application in which an adoption or placement order needs to be made without delay, which is where Opposition Members may want to speed up the process. I appreciate the spirit of the amendments and can see why hon. Members are concerned to ensure that the court process lives up to the expectations in other clauses that it will be speedy. However, there are problems with the amendments. I will run through them and hope that hon. Members will accept that.

First, there is a technical problem. Amendment No. 141 refers in proposed subsection (1)(a) to the requirement of a court to draw up a timetable for the disposing of an application, yet no such application is referred to in subsection (1). In addition, the amendment is more limited in its effect than the Bill as currently drafted. For example, the Bill requires the court to fix a timetable in any proceedings in which a question may arise as to whether a placement or adoption order may be made or in any other question with respect to such an order. That means that a timetable must be set not only in relation to disposing of an application, but in relation to all the interlocutory stages that lead up to a final hearing. On that basis, the Bill is stricter on the steps that need to be taken to minimise delay.

Amendment No. 152 would require the court to draw up a timetable in any proceedings in which a placement or adoption order may be made within 28 days. The drafting is rather unclear and it could be read as requiring the court to determine whether an adoption or placement order should be made within 28 days. That is impractical.

Amendment Nos. 153 and 154 require court rules to prescribe periods within which prescribed steps must be taken. The Bill states that court rules may prescribe such periods. Amendment No. 154 requires prescribed steps to be taken within 60 days, and the current adoption rules usually require steps to be taken as soon as is practical. Amendment No. 155 is consequential, compensating for the proposed deletion of ''may'' in amendment No. 153, so that courts may make other provisions in addition to prescribing time scales.

The problem with the amendments is that they highlight the danger of trying to take a prescriptive approach to tackling delay through primary legislation. We intend to consider the appropriate prescribed periods when we come to the preparation of the new rules. We need to look very carefully at what lessons may be learned from the Children Act and the family proceedings rules.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk 6:45, 4 Rhagfyr 2001

On the point that my hon. Friend the Member for East Worthing and Shoreham made about the phraseology ''is intended'', will it be possible, once the Minister has consulted on the terms of the Children Act and looked again at the very points that she has just mentioned, to change the explanatory notes? I would be much happier if the notes said ''will avoid delay'' rather than ''is intended'', which is a little vague.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

The difficulty is that it is important to ensure that, although we want to avoid delay, we must not do so at the expense of the child. It might be pushing it too far to say ''will'' because every case is different. That is one problem with such amendments, as I am sure the hon. Gentleman knows given his eight years' experience at the Bar working in family law. It is important not to be too prescriptive.

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)

It is helpful to reflect on the way in which the Children Act 1989 unfolded. It gave an impetus to speed matters up by rules of court. The Parliamentary Secretary has responded to the hon. Member for North-West Norfolk about the Law Society, but will she take note of what the Family Law Bar Association and the Solicitors Family Law Association say about the rules? That is not to cut the lawyers in, but to ensure that the provisions are based on sound experience of the Children Act 1989.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

Of course. I understand hon. Members' reservations about leaving matters to court rules or regulations, but there are good reasons for not deciding here how those rules should be drawn up. We want to build on the experience of others.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

To reinforce the point of the hon. Member for Meirionnydd Nant Conwy, when considering the lengthy Family Law Bill, I consistently noticed a contrast between the evidence of the Solicitors Family Law Association, which seemed to reflect the best interest of the families, and that of the Law Society, which seemed to be based on maximisation of lawyers' earnings.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

I had better leave hon. Members to fight that one out.

Amendment No. 152 would require a timetable to be set within 28 days. In some cases, it would be set more quickly, so the amendment would not necessarily reduce delay. We must recognise that a timetable might not best further the welfare of individual children: it might need to be amended to take account of a change in the position on consent, for example. The amendment could cause difficulties in that regard. I am also concerned that it might require the court to determine whether an adoption or placement order should be made within 28 days, which is rather impractical.

The court must have enough time to ensure that it has all the requisite information to determine that the proposed course is in the best interests of the child. That includes the preparation of a schedule 2 report, which details the background to the adoption, the needs of the child and the circumstances of prospective adopters. The general thrust is rightly to reduce delay as much as possible, but we should not force proceedings to go too fast, which might not be in the best interests of the child.

Amendment No. 154, which would require prescribed steps to be commenced within 60 days, raises a similar problem. It proposes a slower process than current practice. Family proceedings rules allow respondents only 14 days to respond to an application. Requiring a step to be commenced will not necessarily reduce delay if the step is not completed within a reasonable time.

Although we want to reduce delays in court processes and we understand the spirit of the amendments, it is better to set out timetables after full consultation. We should also build on the experience of other jurisdictions when introducing rules. I hope that I have given Opposition Members some reassurance about the Government's intentions, and that the hon. Member for East Worthing and Shoreham will withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am most grateful to the Minister for dealing at length with our probing amendments, which sought to define delay. She said that she appreciated the spirit of them and is mindful of the need to avoid delay; no doubt that approach would apply to the regulations and directions of her Department. I believe that we agree on what we are trying to achieve. I anticipated that she would draw attention to flaws in our proposals and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I beg to move amendment No. 137, in page 54, line 17, at end add—

'(3) It shall be the duty of the Lord Chancellor's Department to monitor the proceedings referred to in subsection (1), to keep statistical information on them and to publish a summary of them annually.'.

The amendment is much more modest than previous ones. It is designed to achieve a similar objective but over a longer time. I should declare a former interest, in that I used to work as a statistician in an economic research department.

The Department has gathered many statistics about adoption and children's services. That is thoroughly welcome; it should not be timid about doing so. The testimony from the lawyers who assisted us with the amendments is that many delays in the court system are outside the direct control of the court. There are two main sources of delay: matters in the courtroom that are under the control of the judge or over which he has influence; and other activities, such as the making of reports and assessments, which happen outside the courtroom and over which the judge has little direct control or influence. I do not wish to take a view either way.

The argument for this modest little amendment is that collection of the statistics that I propose would produce three benefits. We would be able to test whether the lawyers are right that the bulk of the delay is, in fact, on the periphery of the court rather than in it; that would be interesting. Incidentally, to correct the record, I was supporting the remarks of the hon. Member for Meirionnydd Nant Conwy on consulting lawyers, not challenging them.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

When I said that I would leave hon. Members to fight it out, I meant the hon. Gentleman and the hon. Member for North-West Norfolk, who had been advocating the Law Society's case.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

The Minister has caught me out. I assure my hon. Friend that I did not mean in any way to detract from his remarks. I was preoccupied with preparing for the debate.

The first benefit would be an indication of the overall progress towards the absolutely critical objective of speeding up the court process. Secondly, the statistics would enable us, in the medium term, to determine whether the bulk of the delays are occurring in the court or around the periphery of it, as many lawyers allege. Thirdly, as a pattern developed, we would be able to determine to what extent courtroom delays occurred under particular judges. It would be odious to cite names; however, some former family lawyers have their own private league tables. In parallel, the patterns would show which of the various delays outside the court could be associated with particular local authorities. I shall sit down now to enable the Minister to reply in the time available.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

I am afraid that we shall resist the amendment, but I want to say two things before we finish. As the hon. Gentleman said, judicial statistics are kept but at present they record only the number of adoption application orders made. The pilot of specialist centres will enable us to record the time taken in adoption cases, including the length needed for specific tasks, the completion of a CAFCASS officer's report, or a schedule 2 report, for example, although I accept that they relate only to county court proceedings—

It being Seven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June] and the Order of the Committee [27 November], to put forthwith the Question already proposed from the Chair.

Question accordingly negatived.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clauses 104 and 105 ordered to stand part of the Bill.

Further consideration adjourned.—[Angela Smith.]

Adjourned accordingly at Seven o'clock till Thursday 6 December at half-past Nine o'clock.