Clause 110 - Special guardianship orders

Adoption and Children Bill – in a Public Bill Committee am 12:15 pm ar 15 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 12:15, 15 Ionawr 2002

On a point of order, Mrs. Roe. When special guardianship orders were discussed at our evidence-taking sittings, the Minister agreed to produce a report or letter of some sort that set out the tax and probate position of children subject to such orders. I reminded her of that some weeks ago, but the note has not appeared. It would have been helpful had it appeared by today.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

The hon. Gentleman will understand that that is not a point of order for the Chair. I am sure that the Minister has taken note of his point.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 256, in page 58, line 2, at end insert—

'( ) Section 41 applies in relation to proceedings in which any question of making, varying or discharging a special guardianship order arises as if they were specified proceedings for the purpose of that section.'.

This is a long clause—if not the longest in the Bill. It is technical and comprehensive, and any further explanation and information that the Minister could have provided would have been helpful. Perhaps further information might be forthcoming later if we are still debating the clause.

Members on both sides of the House widely welcomed special guardianship orders and considered them a good innovation. We certainly support the

principle behind them. Concerns have been raised, some during the witness sittings, that the long-term stability and security that supposedly went with a full-blown adoptive placement would be removed in producing a halfway house—for want of a better phrase—between full adoption and fostering. That is a fair point, but special guardianship orders serve a purpose. They will need to be monitored closely when under way, but I am sure can be made to work. They should not be seen as detracting from occasions when full-blown adoption would be the most suitable course of action if properly conducted in a sustainable and secure family environment which could last in perpetuity. For those children who need to retain some links to birth parents for a host of reasons, the orders have a key role to play.

The amendment is the result of several representations from outside bodies, not least the Law Society, which was specifically responsible for its wording. The principle of the amendment is that children should have a greater say in special guardianship order proceedings and be properly represented. That is why the amendment states that

''proceedings in which any question of making, varying or discharging a special guardianship order''

should be ''specified proceedings''. I am not a lawyer, but I gather that that would involve making children or their representatives party to the orders.

We have debated the consultation of children and the role that children should play in adoption placement procedures. There has been agreement on some issues, but Opposition Members would have liked the Government to go further in including children in other matters. There is a greater requirement for children to be brought into the process of special guardianship orders as much as possible. More often than adoption orders, they will involve older children, who are much more party to their circumstances and why new arrangements need to be made owing to domestic problems with their birth parents or remaining birth parent. Therefore, it is much more important that the child have a voice independent of that of the local authority.

I gather that the Government's draft Bill included special guardianship orders as specified proceedings under section 41 of the Children Act 1989. In view of that, it would be useful if the Minister set out the Government's reasons for the change. I also gather that the appointment of a CAFCASS officer in appropriate special guardianship proceedings is to be provided for in secondary legislation. It would be useful to the Committee if the circumstances in which that was envisaged were clarified.

The amendment is probing, and I am sure that the Minister will welcome the opportunity to explain the change in thinking between the draft Bill and the one before us.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I should like to intervene briefly in the debate with a point that applies as much to the amendment as to any part of the clause. We have made rapid progress this morning, so as to spend a long time on the clause. It would be helpful if the Minister explained how special guardianship

differed from the provisions available under the Adoption Act 1976, which also offered a special relationship. There is certainly a demand for such an intermediate status, as I think all members of the Committee recognise and welcome. However, given that there was not much enthusiasm the last time a halfway house was tried, it would be helpful if the Minister at some stage—perhaps later—explained why she considers the clause better than the original provisions.

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

I start by apologising, in particular to the hon. Member for Huntingdon. In response to a request, which I think was from him, I ensured that full notes were made available to the Committee. I apologise if some issues were omitted. I cannot promise to have anything ready by this afternoon, but perhaps it will be possible to examine the issues raised by him in more detail.

As the hon. Member for East Worthing and Shoreham pointed out, the clause is significant because it makes provision for the new special guardianship order under the Children Act 1989. To provide some context and an introduction to the amendments, it might be useful if I fleshed out the proposals and explained where they originated. I cannot necessarily outline the differences between them and proposals made 30 years ago, as the hon. Member for Canterbury (Mr. Brazier) requested, but I shall write to him to show how things have moved on.

The idea of the new status was proposed in the performance and innovation unit report following the Prime Minister's adoption review in July 2000. It received widespread support in the public consultation that followed. The Government subsequently made a commitment in the White Paper, ''Adoption: A New Approach'', to develop a new legal option called special guardianship, aimed at meeting the needs of children for whom adoption is not appropriate but who could still benefit from a permanent, legally secure placement.

I know, and members of the Committee have several times pointed out, that children value the sense of legal security and permanence that can come with a court order. The intention is therefore to give the special guardian clear responsibility for all the day-to-day decisions about caring for the child or young person and for decisions about his or her upbringing. However, in contrast to adoption, the order will maintain the basic legal link with the birth parents. They will remain legally the child's parents, though their ability to exercise their parental responsibility will be limited. They will retain the right to consent, or not, to the child's adoption or placement for adoption.

The White Paper suggested that special guardianship might be appropriate for some older children who might, for example, be in long-term foster placements, and who while not wanting to be legally separated from their birth parents could benefit from greater legal security and permanence; for some children being cared for on a permanent basis by members of their wider family; and for children in some minority ethnic communities that have religious or cultural difficulties with adoption as it is set out in

law. At present, such children would probably be looked after either by local authority foster parents or informally.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

As the Minister knows, we are all in favour of the new measures, but will she reassure the Committee that where younger children, who have no views of their own, are concerned, the prejudices or customs—whatever term one wants to use—of birth parents from whom, for whatever reason, the child has been taken away, would not be a bar to full adoption?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 12:30, 15 Ionawr 2002

Obviously, the decision about adoption would be based on the best interests of the child, as is appropriate. We have spoken throughout about the Government's wish and intention to increase the number of children adopted out of care, and to ensure that that happens more quickly. However, the White Paper and the PIU concluded that some groups understandably still have difficulty with some of the legal aspects of adoption. We are not necessarily offering such people a choice between adoption and special guardianship, because it is unlikely that they would have opted for adoption. We are providing an opportunity for special guardianship orders to be made, with the permanence and other conditions that they create, as opposed to nothing. It is an important step forward.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

This is an important point. The Minister has outlined a number of other cases, and one can think of other examples. For instance, the father may be dead and the mother permanently incapacitated in such a way that prevents her looking after the child but the child still regards her as mum. However, if a minority group is specifically opposed to adoption—we are dealing with younger children, who will have no views on the matter—the pre-eminence of the child's interests must surely dictate that it should not be allowed to block the adoption of children who might otherwise be satisfactorily adopted by people who do not share that view.

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

As I suggested in my previous answer, it is important that the processes and the safeguards that we talked about in relation to clause 1 and the placement provisions are considered in such circumstances.

The new order is also intended to offer more security and a better support package than a residence order. It is designed to be flexible enough to work in a range of situations—including in cases where there is extensive and regular contact with the birth family and in instances where that would not be appropriate but when it would nevertheless be desirable to retain the basic legal link between the child and the parent. The Government want the new order to be used successfully, and the Bill therefore places a duty on local authorities to make arrangements to provide support services for special guardianship placements. We shall discuss that in more detail under later amendments. We anticipate that those support services will operate in a similar manner to adoption

support services, and we intend to consult widely on the rules, regulations and guidance that will accompany the implementation of the provisions.

I shall go into more detail on the new sections to be added by clause 110. Proposed new sections 14A to 14G of the Children Act 1989 will provide for the new special guardianship order. They state who may apply for an order, the circumstances in which orders may be made and the nature and effect of the orders; and they allow local authorities to provide support services for special guardians.

Proposed new section 14A sets out who may apply for special guardianship and the process for making an application. People may apply jointly—they need not be married—and they must be aged 18 or over. Local authority foster parents may also apply with the leave of the court if the child in their care has lived with them for a year. When considering making a special guardianship order, the child's welfare is the court's paramount consideration and the welfare checklist in section 1(3) of the Children Act applies.

Those who want to apply to become special guardians must give three months' written notice to the local authority, which must investigate and prepare a report to the court on the suitability of the applicants to be special guardians and any other relevant matters. Regulations will prescribe the matters to be covered in the report. We intend to use those arrangements to ensure a proper assessment process. The court cannot make an order unless it has received a report covering the suitability of the applicants. The Government intend to set out, in court rules, that an officer of the Children and Family Court Advisory and Support Service is to be appointed in appropriate special guardianship proceedings to represent the interests of the child. I shall refer to that in more detail when I address the amendment.

Proposed new section 14B provides that, before making a special guardianship order, the court must consider whether a contact order should be made at the same time. The court may also allow the child to be known by a new surname and to be taken out of the United Kingdom for longer than three months.

Proposed new section 14C sets out the effect of the special guardianship orders, giving the special guardian parental responsibility for the child, as I described. Furthermore, while a special guardianship order is in force, the child may be known by a different surname or be removed from the United Kingdom for longer than three months only with the consent of all those who have parental responsibility or with the leave of the court. Although those decisions can be made at the time of the making of the special guardianship order, there are restrictions on that after a certain time. Special guardians must also take reasonable steps to inform the child's parents if the child dies.

Proposed new section 14D sets out the circumstances when special guardianship orders may be varied or discharged. Proposed new section 14E makes supplementary provisions, including allowing the court to set time scales for special guardianship proceedings to avoid unnecessary delay.

Proposed new section 14F makes provision for local authority support services for special guardians and children subject to special guardianship orders. Each local authority must arrange to provide support, including counselling, advice and information and such other services as prescribed in the regulations. The Government intend to consult on the regulations prescribing the circumstances when local authorities must, at the request of special guardians and children subject to special guardianship orders, carry out an assessment of needs for special guardianship services. We shall use the regulations to ensure that local authorities put in place a range of support services, including financial support, which will be available when appropriate for special guardians and children subject to special guardianship orders.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I have a general question. Everything that the Minister has said is right, but will she reassure the Committee that the guidelines will be the same as those for adoptions? We do not want to set up a huge new body of expertise, with which our already overstretched social services departments will have to deal, for a niche in the market that may turn out to be worthwhile but, none the less, small. Will the special guardianship provisions follow the same guidelines as those for adopted children, except when there are obvious variations?

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

There may be some areas of obvious difference in the two circumstances, but the hon. Gentleman makes an important point. It is likely that the adoption support services established for adoptive families and adopted children will be similar to those for special guardians and children subject to special guardianship orders. The hon. Gentleman is right in his view of the way in which local authorities should respond to the provisions. The Government will consult on the overall framework. It makes sense for links to be made between the support services.

Subsections (4) to (9) of proposed new section 14F govern the assessment process and, when support services are to be provided, the arrangements for their provision. As with adoption support services, the needs assessment may be carried out at the same time as an assessment of a person's needs for any other purpose.

Proposed new section 14G obliges every local authority to establish a procedure for considering representations, including complaints made to them, in respect of special guardianship support services by special guardians or children subject to special guardianship orders.

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

It is clear that the measure is important, but it is also clear that difficulties and disputes could occur when parental responsibility is shared. The parental responsibility of special guardians will outweigh that of birth parents, so should birth parents not be included in the category of people who can have their complaints considered under the provision?

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

Matters concerning birth parents are best dealt with in relation to the making of the special guardianship order, rather than in relation to proposed new section 14G, which is about

representations and complaints with respect to special guardianship support. We intend to use the powers to require authorities to establish complaints procedures for special guardianship support, modelled on the revised Children Act complaints procedure, to be established under section 26 of the Children Act 1989 as amended by clause 111.

Clause 110 represents a substantial new set of provisions, delivering on the Government's commitment to create a new permanent order to meet the needs of children who cannot live with their birth parents, but for whom adoption is not appropriate. These complex provisions are designed for use in a wide range of circumstances and we intend to consult carefully on the details of their implementation, in order to ensure that we get that right. Although, as the hon. Member for Canterbury says, the provisions in the Bill are very detailed, it is not necessarily appropriate to include certain others.

That brings me smoothly to the amendment.

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

The hon. Gentleman cannot have it both ways. In one breath he complains that there is not enough information and in another, when I am trying to further his education, he complains that I have gone on for too long.

The hon. Gentleman's amendment proposes adding a subsection to proposed new section 14A that would mean that a children's guardian would have to be appointed by the court in any proceedings relating to the making, variation or discharge of a special guardianship order, unless it was satisfied that it was not necessary to safeguard the child's interests.

Proposed new section 14A sets out who may apply for a special guardianship order and the process for making an application. Applicants must give three months' written notice to the local authority of their intention to apply for an order. That is to ensure that the local authority can investigate and prepare for the court a report about the suitability of the applicants to be special guardians, and other relevant matters. We intend to set out which matters should be covered by the report, and to use the regulations to ensure that there is an appropriate process for assessing the suitability of prospective special guardians. We shall consult on how the assessment process should work.

However, it is envisaged that statutory guidance will require the results of earlier relevant assessments to be taken into account—for example, where the applicants are approved foster carers. The provisions allow the local authority to engage the assistance of other organisations in preparing assessment reports. The experience of voluntary adoption agencies in assessment might make them suitable organisations to assist local authorities in that way.

The court cannot make an order unless it has received a report covering the suitability of the applicants to be special guardians and the involvement of the social services in the process. The requirements for what the report should cover will ensure that the welfare of the child and his interests are investigated and reported to the court. The

Government intend to set out in court rules that a CAFCASS officer be appointed in appropriate special guardianship proceedings. However, subject to consultation, we envisage a CAFCASS officer being appointed in most cases where the court considers making a special guardianship order. We shall want to consider carefully the circumstances in which an officer should be appointed in cases where the court considers varying or discharging such an order. That is particularly true where all the parties have given their consent, and it may not be appropriate for a CAFCASS officer to be appointed in such cases.

We shall consult widely before the court rules come into effect. They will set out the circumstances in which CAFCASS officers must be appointed and their duties in each case. We shall listen carefully to the views of stakeholders on that important issue, but we do not believe that the Bill should prescribe the power to appoint CAFCASS officers, because such a power already exists in section 41(6) of the Children Act 1989.

The hon. Member for East Worthing and Shoreham alluded to the fact that proposed new section 14E(6) introduced in March would have had a similar effect to the amendment, but that that provision does not appear in the present Bill. We have consciously made that change for two reasons after further consideration and discussions with colleagues in the Lord Chancellor's Department. First, we have confirmed that the Children Act already provides the power to appoint CAFCASS officers. Secondly, we are convinced that the issue is best dealt with through court rules, rather than in the Bill, because that approach allows for greater flexibility. In a small number of cases, the involvement of a CAFCASS officer will not be necessary or desirable—for example, where there is no contention and all parties have given their consent to the special guardianship proceedings being used to consider the discharge of the order for an older child.

Opposition Members also raised the issue of children's ability to receive representation, and there are two broad options for independent representation. Either the children's guardian and legal advisers act in tandem to represent the child as a separate party to the proceedings or the CAFCASS officer provides a report to the court, which can cover the child's wishes and feelings. Older children can instruct their own lawyer if the court thinks that they are competent to do so, although that is very rare. Such children can receive public legal services funding.

In the light of those reassurances and of my explanation of the change to the Bill, I hope that the hon. Member for East Worthing and Shoreham will withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 12:45, 15 Ionawr 2002

I am enormously grateful to the Minister for furthering my education, as she so uncondescendingly put it. I was not complaining half an hour ago about her explanation, although some of

us rather lost the will to live part way through it. However, she took various interventions on matters that had nothing to do with the amendment, and I hope that we shall not impinge on your tolerance, Mrs. Roe, if we raise other matters in a clause stand part debate.

I was grateful for the Minister's eventual explanation of the circumstances in which CAFCASS officers could be appointed, and it was useful to put those on the record. I am encouraged by her undertaking to consult widely on the use of such officers and on court proceedings. Uncharacteristically, she also went further towards explaining properly why the provisions in the draft Bill were changed. The proof of the pudding will be in the eating, when we see what happens with respect to court rules, but if what is envisaged is in the interest of greater flexibility, there is something to be said for it.

I am grateful for the explanation that has been given and sorry that my amendment took so much of the Committee's valuable time. 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. 257, in page 60, line 12, after 'guardian', insert

'and,

(c) a birth parent'.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

With this, we may take amendment No. 258, in page 61, line 25, after 'guardian', insert

'and,

(c) birth parents'.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

These are also probing amendments. All our remaining amendments to the clause are targeted on support services. We have previously debated the importance of adoption support services and such support services will have no less importance when applied to special guardianship. The amendments would add a third category to the prescribed persons who may, under proposed new section 14F(2), at their own request have an assessment of their needs carried out or, under new section 14G(1), formally make representations, including complaints, to a local authority. Under the Bill, prescribed persons would be, first, a child with respect to whom a special guardianship order was in force and, secondly, a special guardian. We want birth parents to form the third category.

An interesting representation was made by the Family Rights Group to the effect that birth parents who kept up a contact arrangement with their children who were the subjects of a special guardianship order would obviously retain a closer interest in their children's welfare than would the birth parents of a child who had been adopted and responsibility for whose welfare had moved to a completely different sphere. Such parents are not accorded under proposed new sections 14F(2) and 14G(1) any right to assessment for support or any facility to make representations or complain, yet the effect of a special guardianship order would be to exclude them

from decision making, although some contact would be likely.

Surely, in view of that, the birth parents would need adoption support services to explain to them the procedure that was coming into effect and how they would fit into it with respect to future contact. It would be a big decision for them. After the order had been made, problems might arise with the contact provisions, giving rise to the need for counselling, support services for domestic problems, or other such help. If there is a case for other people involved in the special guardianship order process to have special guardianship support services and the facility to make representations, I do not see why birth parents should be left out altogether. Unless that is specified in primary legislation, I fear that it will be a low, if not non-existent, priority for local authorities to provide either of those two services for birth parents. That is the point of this probing amendment. Birth parents will play a greater role in special guardianship than that played in any adoption by those whose child is adopted, so why, apparently, have they been excluded from the process altogether?

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

Proposed new section 14F(2) provides that the local authority may, and in prescribed cases must, make an assessment for special guardianship support services at the request of

''a child with respect to whom a special guardianship order is in force''—

or—

''a special guardian''.

As I said, proposed new section 14G sets out that the local authority shall establish a procedure for considering representations and complaints from those two groups about the way in which the local authority discharges its duties under proposed new section 14F.

Although many of the services required to support special guardianship will be similar to those required to support adoption, as I suggested in response to an intervention from the hon. Member for Canterbury, there are fundamental differences between special guardianship and adoption, particularly in that special guardianship does not have a lifelong effect. Special guardianship involves neither the permanent loss of a child to adoption, nor the same complex issues relating to tracing relatives and obtaining information that we discussed in detail last week and which will be covered by the adoption support provisions. Some special guardianship orders will be made with the consent of all the parties, but others will clearly be contested.

Nevertheless, the Government believe that, because of the fundamental difference between adoption and

special guardianship, access to support for special guardianship should be more restricted than access to similar services for adoption. Our priority is to support the child and young person and his or her special guardians, and the provisions reflect that. In practice, many of the birth parents whose child is made the subject of a special guardianship order will already be in touch with social services. Some children may remain in the department's care. In such cases, depending on their need for services, the department may be able to help them.

The hon. Member for East Worthing and Shoreham raised the issue of support for contact. The local authority has a general duty under section 17 of the Children Act 1989 to provide services for children in need, their families and others. In particular, they have a duty to safeguard and promote the welfare of children living in their area and, so far as is consistent with that duty, to promote the upbringing of such children by their families.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I have a straightforward, non-trick question. Does the Minister see special guardianship as a suitable scenario in a case where there should be no contact?

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

Yes, it is possible to envisage a situation of special guardianship with no contact. I did not realise that the hon. Gentleman had been trying to trick me earlier, but I will have to keep an eye out for that.

Section 17 of the Children Act is important, because under the provisions in the Bill it would be possible for both parents to seek help with, for example, expenses associated with fulfilling a contact order. Also, section 16 of the Children Act allows the court to make an order requiring an officer of the local authority to advise, assist and befriend a person named in the order, who could be a parent, anyone with whom the child is living, or the child. The order may only be made by consent and in exceptional circumstances, and lasts for up to six months. The power is not greatly used, but it is clear that it is available to require a local authority to supervise contact, for example.

I hope that the hon. Member for East Worthing and Shoreham recognises my arguments for the narrower scope for special guardianship support provisions, as well as the ways in which it is already legally possible to support birth parents in cases such as those he described.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.