Clause 110 - Special guardianship orders

Adoption and Children Bill – in a Public Bill Committee am 4:30 pm ar 15 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed [this day]: No. 257, in page 60, line 12, after 'guardian', insert 'and,

(c) a birth parent'.—[Tim Loughton.]

Question again proposed, That the amendment be made.

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

I remind the Committee that with this we are taking amendment No. 258, in page 61, line 25, after 'guardian', insert 'and,

(c) birth parents'.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

At the end of our previous sitting, I had risen but then sat down quietly at the stroke of one o'clock. I must check that my mobile is off, lest it intervene again.

The Minister had just responded to the two Opposition amendments, which are designed to add birth parents to the list of people eligible to request assessments for support services for special guardianships and to make representations to local authorities. The Minister's response was interesting. She said that there were fundamental differences between adoption support services and those required for special guardianship. She also said that the

amendment was not required because local authorities had a general duty to give support to families generally and to promote the welfare of children living in their area.

In closing, the Minister referred to section 16 of the Children Act 1989, claiming that it already did what we want the amendment to achieve. I have examined that section: it relates to family assistance orders and is only partly relevant to clause 110. She also said that the facility was ''not greatly used'' in any case, but it was, at least, available. We will not press the amendment to a vote, but it is worth putting it on the record, and the Minister should be aware, that although the power may well be available, unless it is actually specified in the Bill it will have very low or nil priority for local authorities, whose resources are stretched to provide all the other support services for which the Bill specifically legislates. That is the problem.

Although I do not think that the Minister has made a convincing enough case that what we are asking for is fully covered in the Bill, I hope that her comments make it implicitly clear to local authorities that there is a requirement—one that should be a priority and cannot be ignored.

I said that these were probing amendments. The Minister has not given us categorical reasons why birth parents should not be included in respect of the delivery of services, but she is satisfied that those services will be available through other means. I hope that she is correct. Despite the reservations that I have expressed, 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. 253, in page 60, line 17, leave out 'decide whether to'.

We are back on familiar territory. The amendment deals with the thorny subject of the local authority deciding whether or not it should be in the business of providing support services. You might recall an earlier debate—I am not sure whether you were in the Chair, Mr. Stevenson, as it was such a lengthy debate that it straddled both yourself and Mrs. Roe in the Chair—[Laughter.] That was probably a bad turn of phrase. It is about time someone's mobile phone went off.

The question we dealt with in relation to clauses 4 to 12 was that of adoption support services. We all agree that they are necessary, and an important feature of the Bill is that it beefs them up. However, there was concern at that stage of consideration. Although the Bill makes due provision for the making of assessments of need for adoption support services, which is fine, it then goes a bit wobbly, for want of a better word, about ensuring that if an assessment of need is made, the support services should actually be provided.

Subsection (3) of proposed new section 14F says that

''Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.''

Consistent with our amendments to the adoption support services part of the Bill, amendment No. 253 would leave out ''decide whether to''. If the Minister thinks that local authorities should have the flexibility to decide that, having identified the need for support services, they are not going to provide them, in what scenarios does she think that that would be justified? The problem is that if the requirement for special guardianship support services is not specifically stated in the clause, as was the case with adoption support services, it will assume a low priority for local authorities, which have many pressures on their resources to meet other requirements in the legislation.

The Minister had due notice of the thrust behind the amendment some weeks ago. No doubt she will trot out the same excuses as she did last time.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I rise to support my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). It is vital that we ensure the right level of support services in connection with special guardianship orders.

Special guardianship orders may work very well in the majority of cases, but I can envisage cases in which there is a great deal of stress between guardians and birth parents and various problems and tensions build up. In extremis, an application can be made to the court to vary or even to discharge the SGO. That is obviously rather formal, but in some cases it may be the last resort.

In essence, we must put in place services to provide the counselling and help that are needed. That is what concerns me, because it goes to the heart of what we have to do to help children. Once an adoption has taken place, little can be done legally to help the child. In the case of SGOs, a great deal could be done, but going through the legal hoops will be traumatic, difficult and awesome. A proper support service would provide vital back-up. That is why I support the amendment.

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

Not only is this territory thorny, as the hon. Member for East Worthing and Shoreham said, but it has been well and truly tramped over. Opposition Members are repeating the points they made during our debates on adoption support services—points that were well countered not only by me but by some of my hon. Friends—and the debate on whether the right to assessment should lead automatically to a right to provision, and the extent to which the measure is out of line with the principles governing the provision of public services.

Proposed new section 14F of the 1989 Act makes provision for local authority support services for special guardians and children subject to special guardianship orders. Under subsection (1), each local authority must arrange to provide support, including counselling, advice and information, and such other services as are prescribed in regulations. Regulations will be made prescribing the circumstances in which, at the request of special guardians and children subject to

special guardianship orders—following the lead of the hon. Member for North-West Norfolk (Mr. Bellingham), perhaps we can now call them SGOs—local authorities must carry out an assessment of that person's need for special guardianship support services.

The hon. Gentleman raised issues that I suspect would be more appropriately covered by the assessment process. I made it clear this morning that we would set out the type of process that should be gone through during such assessments and preparation. That process is important in relation to SGOs.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

If two children were in similar circumstances except for the fact that one was adopted and the other was the subject of special guardianship, would one of them be entitled to more help than the other?

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

It would depend on the assessment. We pursued this morning the question of whether or not the services that might be available to support special guardianship would be similar to those available for adoption support, and we said that it would depend on the circumstances of the case. If, for example, financial support were needed to ensure the stability of the placement, I suspect that the two children would receive the same services; on the other hand, if counselling were needed to prepare for the fact that adoption meant a complete move away from the birth family but special guardianship did not, there would be differences.

The important point is that parents and children involved in both special guardianship and adoption support cases have the right to an assessment. That right is the same for both. What results from that assessment is the subject of debate, which is why local authorities should have the discretion to decide whether and how to provide those support services.

The Government intend to use the regulations to ensure that local authorities put in place a range of support services, including financial support, to be available when appropriate for special guardians and children subject to special guardianship orders. In practice, as I suggested, many of the services for adoption support will be relevant to special guardianship.

As I said, we are already working on a new framework for adoption support. We will consult widely on our proposals for the framework later this year. In that consultation, we will raise the particular needs of special guardians. We will also consult stakeholders on the regulations that put in place special guardianship support services to ensure we get the detail of those services right.

The Government believe that when the assessment of need for special guardianship support identifies a need for such support, local authorities are best placed to decide, based on need and the resources available locally, whether to provide services to individuals, and, if so, which services. That is not an inappropriate

form of decision making given the range of services for which local authorities are responsible. As the Committee is aware, the issue was discussed in some detail when we considered clause 4. The same principles apply under clause 110. First, it is an appropriate decision for a local authority to make. Secondly, it is inappropriate to set the provision of special guardianship services above decisions to be made on other services when the same principle, about the right to an assessment and a decision on provision, forms the model for those services.

Proposed new section 14F(4) requires local authorities that decide to provide special guardianship support services following an assessment, when the circumstances fall within what is prescribed by regulations, to prepare a plan for the provision of such services and to keep that plan under review. Regulations made under new section 14F(5) will set out requirements on the manner and frequency of reviewing such plans.

The amendment would require local authorities to provide special guardianship support services that a person has been assessed as needing. As I have said before, it is not needed. The amendment would make the provision of special guardianship support services unique among public services, and it would undermine the legitimate decision-making role of local authorities. As I have argued successfully before, it is not appropriate.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 4:45, 15 Ionawr 2002

The Minister has not mellowed over the past few weeks. She may have won the battle on numbers in Committee, but she has not won the war of minds. She did not convince us that adoption support services should merely be an option for local authorities to choose to apply to people whom they have clearly identified as being in need of such services. She says that special guardianship support services would be unique if the amendment were accepted, but they would not be unique if she had agreed to the common-sense approach of our amendments to the clauses on adoption support services.

However, we shall not get any further with the Minister now, and I am sure that hon. Members would like to go on to other more important parts of the Bill. Rather than repeat the arguments again today, we shall save those battles for Report stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I beg to move amendment No. 245, in page 60, line 17, at end insert

'and provide for a review of a decision not to provide special guardianship support services.'.

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

With this it will be convenient to discuss amendment No. 254, in page 60, line 17, at end insert

'and provide a written explanation of their reasons if those support services will not be forthcoming.'.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

The amendments represent a fallback provision. We were fearful that the Government would not accept the previous amendment. That they did not is a pity, because I

believe that local authorities should be obliged to provide those services. Now that they will not have that clear legal obligation, it makes sense to oblige them to provide for a review of any decision not to provide those support services, and to give a written explanation of why the services are not to be forthcoming. That is not asking a great deal.

The Minister and her colleague, the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Doncaster, Central (Ms Winterton), have on several occasions expressed their wish to break down the barriers of officialdom and to remove from decision making the aura of remoteness that often characterises public perception of local government. It is important that decision making and what goes on in social services departments be made more user friendly.

Will Ministers not agree that the cost of implementing the amendments would be negligible, but that they would give a clear signal that the Government believe in being as open as possible and in communicating with the public? That is especially important when a decision on something like providing support services goes against a family or an individual. In such circumstances those making the decision they should at least appear compassionate. I very much hope that the Minister will accept these two modest amendments, which will probably cost nothing but will show the Government in the best possible light.

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

As the hon. Gentleman says, the amendment makes statutory the provision of a written explanation. I do not believe that that is appropriate. When, following an assessment of needs, a local authority decides not to provide special guardianship support services, a complaint may be made to the local authority under the procedures established in proposed new section 14G of the 1989 Act, which I outlined briefly this morning. Amendment No. 254 would require local authorities, when they decide not to provide special guardianship support services following an assessment under proposed new section 14F(2), to provide a written explanation of their reasons for not doing so. That is not a matter for primary legislation.

I agree that it would be good practice for local authorities to provide a written explanation of their reasons for not providing adoption support services or special guardianship support services following an assessment, but the matter should be covered in guidance to local authorities. In some cases, depending on the needs of the person who has been assessed, it might be more appropriate to provide a verbal explanation.

The amendment also impinges on the issue of how people are able to make representations and complaints. The Government are improving the Children Act complaints procedure. We undertook a consultation exercise that resulted in a range of improvements to the procedure, and through clause 111 we are amending the complaints procedure established under the 1989 Act. The Bill implements the changes that require primary legislation.

In addition, new regulations will be developed and guidance issued to local authorities. I can assure the hon. Gentleman that the new special guardianship complaints procedure will reflect those developments, enabling a person who has been refused special guardianship support provision to make representations. That is explicit in the legislation. It is good practice to ensure that transparency surrounds decisions on special guardianship support, but that is more appropriately covered in guidance than via the inflexible approach of incorporating it into legislation. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

Anyone who has had cause to make a complaint against local authorities will know that they can go to all sorts of lengths to obfuscate and delay to make the process as difficult and as painful as possible. The Minister says that guidance can be in put place; I hope that there will be full guidance on the complaints procedure and on what local authorities should do in the circumstances. However, that is no substitute for setting down a clear, well defined process in the Bill.

We are not talking about the average local authority, as the Minister knows, because most will handle the matter compassionately and get it right. We are talking about the small percentage of local authorities that will not behave as she would like. Some will fall below the expected standards of service. It is about those local authorities that I am most concerned.

The Minister says that she would like written explanations in the majority of cases, but that verbal explanations may sometimes be more appropriate. Will she elaborate and tell me in which cases verbal explanations would be more appropriate? Obviously, some people might not be able to read, and people from different ethnic backgrounds might not understand English.

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

The hon. Gentleman answers the question himself—[Interruption.]

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

Order. There are conversations taking place here and there that even I can hear, and I am slightly hard of hearing. Please keep it down.

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

However many people consider something good practice, it is not necessarily appropriate to make provision inflexibly, as proposed in the amendment. That is my major concern and why I oppose the amendment.

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)

If I heard the Minister correctly, she said that proposed new section 14G of the Children Act 1989 nearly covered the point made in the amendment. It covers special guardianship support services provided, and so relates to complaints about the level or frequency of support services. So far as I can see, it does not explicitly or implicitly cover a refusal to supply those services, which is the point of the amendment.

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

I will correct myself if I am wrong, but I think I said that there were two approaches. First, in many cases it might be appropriate to give a written explanation to a person who, following assessment, was not to receive special guardianship support services, but I do not think it appropriate to put a requirement in legislation. Secondly, complaints would be dealt with by the specific points about representations on special guardianship support services covered in proposed new section 14G.

I understand the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) to be suggesting that proposed new section 14G implies that one could complain about only the nature of the provision of service, and not about whether one had been granted access to services following an assessment. The new section makes it clear that regulations may be made under it, so the procedure can be set out in regulations, not only in guidance. I will correct myself if I am wrong, but my understanding is that it covers refusal to provide services.

To answer the point made by the hon. Member for North-West Norfolk, reasons for refusing the provision of services could be given orally when the request was for advice or guidance only. It would hardly be appropriate to go through the lengthy process of writing down reasons why it was not possible to provide services in such cases.

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

I will. New section 14G(1) states:

''Every local authority shall establish a procedure for considering representations . . . about the discharge of their functions under section 14F''.

That obviously covers whether local authorities provide special guardianship support services, as well as how they do so.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I would like the Minister to say a quick word about the precise circumstances in which she envisages a verbal explanation being more appropriate than a written explanation.

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

The hon. Gentleman can keep asking me and I can keep repeating what I have said, or he can accept what I have said, which covered a wide range of situations.

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

I accept what the Minister has said.

It has been important to debate the subject, because local authorities will carefully consider what has been said in Committee. The subject is important and no laughing matter. On the basis of our debate and the Minister's positive response—which falls short of accepting the amendment—I intend to seek the Committee's leave to withdraw the amendment.

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)

With respect, I am not convinced by the Minister's reply, despite the advice given to her. The words

''discharge of their functions under section 14F'' mean a local authority's provision of support services under that new section. We have been discussing the inability or unpreparedness of local government to provide those services, which is totally different.

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

Would the hon. Gentleman care to advise his hon. Friend to read proposed new section 14F(3)?

Photo of Henry Bellingham Henry Bellingham Ceidwadwyr, North West Norfolk

Indeed. I would like to read it in the light of our amendment having been accepted, but that will not be the case, so 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. 248, in page 60, line 25, leave out 'may' and insert 'must'.

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

With this it will be convenient to take the following amendments: No. 246, in page 60, line 29, leave out 'may'.

No. 249, in page 60, line 29, after 'particular', insert 'will'.

No. 250, in page 60, line 30, leave out 'or' and insert 'and'.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

We continue in a similar vein, and I am not optimistic about our chances, given the previous foray. However, we will go through the motions.

Our efforts to beef up the provisions were appropriate in relation to adoption support services—[Interruption.]

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

Order. Will hon. Members please take their conversations outside? They are a bit distracting.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I cannot say too many times that if measures are not put in primary legislation, they will not be treated as a priority by the local authorities that provide the services if their resources are stretched, as is often the case. The Bill messes about with wishy-washy language, stating:

''The Secretary of State may by regulations make provision''.

What does that actually amount to? There must be a ''must'' requirement, and amendment No. 248 would introduce one.

Amendments Nos. 246 and 249 go together and relate to proposed new section 14F(6). Again, we want to strike out ''may'', but this time we would replace it with ''will''. I do not know what argument there can be about those amendments, because we are simply saying that the regulations ''will'' make provisions for the whole list of items in paragraphs (a) to (h). I cannot understand why the Bill should not be beefed up in that way.

Amendment No. 250 refers to subsection (6)(a). The change from ''or'' to ''and'' may seem purely semantic to some people, but the regulations must detail both what assessment will be carried out and how it should carried out. I cannot understand why it should be an either/or scenario. If provisions are made about the

way in which an assessment is carried out, we need to know the details of that assessment; likewise, if there is provision detailing the sort of assessment to be carried out, we need further qualification of how that will be done.

Our amendments may be small, but they would beef up a clause with which we all agree. We want to give the clause a few more teeth.

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

The arguments relating to the ''must'' and ''may'' amendments are twofold. First, hon. Members need reassurance that the Government intend, as they have publicly stated, to put in place what is necessary to ensure that there are special guardianship support provisions. Secondly, there are technical questions about whether it is appropriate to use ''may'' or ''must'' in relation to regulations.

First, to convince people that the Government are serious about these matters, it is worth pointing out that we made a positive decision to include in the part of the Bill that relates to special guardianship a component that deals specifically with special guardianship support services. That shows the importance of the provision of those support services to making special guardianship a success. We included in that component a right to an assessment for children or special guardians; that right was not in the White Paper, so we have gone further than we originally proposed.

In proposed new section 14F(1), we make it clear that each local authority must make arrangements for the provision of special guardianship support services in its area, and outline what those arrangements should include. The regulations will give more detail about services and do not relate to the fact that something is to be provided.

The amendments refer to particular subsections of the clause. Subsections (2) to (8) of proposed new section 14F govern the assessment process for the special guardianship support services and, when special guardianship support services are to be provided, the arrangements for their provision.

Subsection (5) gives the Secretary of State the power to make regulations governing the provision of assessments for special guardianship and the preparation and reviewing of plans for the provision of special guardianship. Subsection (6) specifies the matters that regulations made under subsection (5) may cover: they include the type of assessment made, the way in which plans are drawn up, and the considerations to which local authorities are to have regard.

The amendments would require the Secretary of State to make regulations under subsection (5) rather than give him a permissive power to do so. That is inappropriate. I have tried to spell out before why it is inappropriate; perhaps I shall have more success this time. To put into legislation that the Secretary of State ''will'' produce regulations is to take it for granted, to presume, or to guarantee that Parliament will approve any regulations that the Secretary of State sets out to make. That would mean that the Secretary of State might not be able to comply with the duty placed on him by the Bill to make the regulations. Therefore,

something that was laid down in legislation might not be capable of being delivered if Parliament refused to allow the making of the regulations.

The argument is a circular one. I do not expect that the regulations referred to in the provision will be rejected by Parliament, but it would be illogical to set up a potential circle, whereby it was impossible to deliver what was laid down in legislation.

The amendments to subsection (6) would compel the Secretary of State to make regulations in all the areas listed in paragraphs (a) to (h). That would undermine the flexibility of the current approach, which allows the Secretary of State to consider which areas require regulation and to prepare draft regulations for consultation with interested parties and stakeholders before laying them before Parliament for its consideration.

Amendment No. 250 is puzzling, although I understand the thinking of hon. Member for East Worthing and Shoreham. I assure him that his amendment does not make much difference to the Secretary of State's power to make regulations about the assessment process. The use of the word ''or'' does not in this case mean that it would be possible to make regulations either only about the type of assessment that was to be carried out, or only the way in which it was to be carried out. I assure the hon. Gentleman that it is possible to make regulations that cover both.

I hope that with those assurances, a further explanation of the legitimate use of ''may'' to provide a permissive power to make regulations, and a commitment from the Government to ensure that the special guardianship support services become a reality after full consultation with stakeholders, the hon. Gentleman will feel able to withdraw his amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I was not optimistic about the Minister's response, but I thought I might give it a go and then have the argument on another day. However, in seeking to make her case more forcefully one more time, the Minister has given us the most appalling arguments that we have yet heard from her.

The Minister said that in requiring the Secretary of State to make regulations, we might bind him to something that he might not be able to deliver, because Parliament might not agree to it. If Parliament believes that regulations that the Secretary of State wants to impose are duff regulations, should it not have the right to say so? That is the thrust of the Minister's argument, and it is another example of the terrible arrogance of a Government who regard Parliament as an encumbrance and a nuisance. They have to go through the processes, but they think that everything should be done by provisional regulations for which they do not even need a Committee's approval.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

Perhaps we can understand the reasoning behind the Government's decisions on this matter in the light of the highly effective activities of our hon. Friend the Member for Stone (Mr. Cash), who has shown repeatedly that statutory instruments brought before the House are

legally invalid. One of the Ministers in the Room has experienced that at first hand. That may be the reason why they resist the wording that we suggest.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

My hon. Friend is right.

This debate has greatly annoyed me and it will anger people outside the Committee as well. It is another example of the Government's tendency to deal with as much legislation outside Parliament as possible. The Minister described the situation that would prevail if the amendment were accepted, in which Parliament would have a say in the regulations, as illogical and potentially circular. That is a terrible indictment of the way in which the Government perceive the democratic parliamentary process.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health 5:15, 15 Ionawr 2002

I am sorry that I did not make myself clear. The Government take precisely the opposite position. If we were to go down the route prescribed by the hon. Gentleman, it could be argued that the Secretary of State is bound to make regulations even if Parliament petitioned to annul them under the negative resolution procedure.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is entirely a matter for Parliament to decide. It is for a Standing Committee to decide how to approach the regulations. However great the Government's majority may be, Parliament has a right to scrutinise regulations that are an essential part of legislation such this Bill. I am afraid that the Minister's arguments are a red rag to a bull.

The Minister continued her circular argument in relation to amendment No. 250. To paraphrase, she said that using the word ''or'' rather than ''and'', as we would like, does not mean that a choice must be made between one option or the other, but that ''or'' could mean ''and''. I understand her remarks to mean that ''or'' does not mean ''or'', but that it can mean ''and''. By that logic, the Bill should use ''and'', which cannot mean one or the other.

That was the logic, or lack thereof, of the Minister's argument. On that basis, and because of the flimsiness of her response on this occasion compared with the rather more robust response to the other amendments in the group, I would like to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Rhif adran 9 Adults Abused in Childhood — Clause 110 - Special guardianship orders

Ie: 5 MPs

Na: 10 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I beg to move amendment No. 244, in page 60, line 28, at end insert—

'which regulations must at all times bear in mind, that, in general, any delay in provisions of special guardianship support services is likely to prejudice the child's welfare.'.

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

With this it will be convenient to consider amendment No. 255, in page 60, line 42, at end insert—

'as long as the well-being of any person with regard to special guardianship support services is not affected and there is no avoidable delay.'.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I shall be brief, because we have to a large extent rounded this buoy already with our corresponding amendments on the issue of resourcing support services for adoption.

The question is whether we want special guardianship orders to work. Such orders deal, in almost every case, with an older child. The majority of adoptions nowadays are not of babies but of older children, and I suspect that special guardianship orders will nearly always be made in respect of older children. The sort of special circumstances that the Committee discussed earlier are more likely to apply to older children. For such children it is even more important that the support services should be in place.

We have already debated the value or lack thereof of providing for an assessment, but not backing it up with resources. Departing from the amendment just for a second, Mr. Stevenson, I am one of those who questioned whether it was worth having a compulsory assessment if there were no compulsory resources. The specific services that the assessment shows are needed will require specific resources, and an overall lack of resources is the only possible reason for refusing to provide them.

The same argument applies with a vengeance to special guardianship orders. There is, however, one additional argument in favour of such orders. I expect the clause stand part debate to be short, because all parties support it. When we come to that debate, I expect that we will be told that most special guardianship orders occur within a few local authorities. That should not be the case, because the decision should be child-centred. However, I suspect that a few local authorities—the same ones that are resistant to adoption—may see such orders as an easy way out.

Certain authorities have, over the years, resisted adoption for various reasons. I could run off a long list of names, but the excellent league table that the Government have been publishing for several years shows clearly who they are. I suspect that, under pressure, they will consider special guardianship orders as an alternative to adoption. I am sorry if that sounds cynical. A particular reason to accept the amendment is that would go some way to create a strong disincentive to consider guardianship orders in such a light. To be blunt, it would mean that the authorities would know that they would have to pay for and resource special guardianship. That would make them think.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

With respect, the hon. Gentleman is in error. Children are likely to be made the subject of special guardianship when they already have relationships with the adults who are caring for them, but have on-going links with their birth families. They may be older children, or there may be other circumstances that would make it inappropriate to sever those links via adoption. Adoption is a completely different route. The hon. Gentleman's arguments are not supported by that example.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I want to reply to both the hon. Lady's points, and do so clearly, but I am in a difficult position, because I find myself wanting to discuss clause stand part before I discuss the individual amendments.

I support the underlying principle of the special guardianship order. Every member of the Committee supports it, as far as I know. It is designed to deal with precisely the kind of circumstances that the hon. Lady has succinctly summarised. We agree on all of that. However, I fear that those authorities that have over the years proved extremely resistant to using adoption—to a scandalous extent, as academic studies and the league tables show—will misuse the provision on special guardianship orders to avoid using adoption. That is my concern.

The extra argument in favour of amendment No. 244, in addition to the arguments analogous to those for the amendments that we tabled on adoption, is that knowing that they will have to provide proper resources will provide local authorities with an incentive to think hard before they send children down that route. That is all that I was saying. I hope that what the hon. Lady said in her intervention is true, but I am not convinced that she is right in respect of every authority.

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 support the amendments. It is never a bad thing to remind ourselves of the fact that delay can be detrimental, although perhaps the hon. Member for Canterbury (Mr. Brazier) has fully elucidated the reasoning behind the amendments. I do not say that local authorities will cause, or will want to cause, delay, but it is good if such matters are incorporated in legislation. It reminds practitioners that there is a need for speed, in accordance with the best interests of the child.

Looking at the question of dealing with matters promptly, there is no doubt that delay can prejudice the welfare of a child or young person. The hon. Member for Sheffield, Heeley (Ms Munn) might be right to say that many cases will involve existing relationships. That is all well and good. However, many will not, so there will be situations in which delay could cause harm. The whole Committee agrees on the welfare of the child being the paramount consideration. The provision is another manifestation of our belief that we should look to the welfare of the child or young person.

I was in practice in family law before the enactment of the Children Act 1989. I witnessed a sea change after its introduction. That ground-breaking piece of

legislation has been referred to extensively today, and will be again. The greatest thing about it was that it enshrined the principle that lawyers, social workers and all those involved in the practice of family law should bear in mind that timetables are vital. That, above all, was how it revolutionised the practice of family law. Some of us were a bit laissez faire about when the next court appearance would be; now everything is scheduled. Anyone who appears before a judge on an application without having done his spadework and obtained his reports is in for a rocket, and rightly so; the procedure has been tightened up.

This amendment follows those lines. It is not mischievous; it will not incur any financial penalty. It merely serves as a reminder that delay can be detrimental to the children in these circumstances. Surely that is worthy of further consideration.

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

We seem to have gone rather wide of the amendment. The hon. Member for Canterbury has again expressed his concern that special guardianship might be used as a way to avoid using adoption. I understand that concern, and responded to it earlier.

Throughout all our proceedings on the Bill and through the incentives, pressures and signals sent to local authorities, we have made very clear the Government's commitment to increasing the number of adoptions. Our intention is to provide people with an alternative route to security and stability, not to give them a way out of promoting adoption. I hope that the hon. Member for Canterbury recognises that in the light of many of our earlier discussions in which I referred, for example, to the Government's use of the national adoption standards and other measures.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons) 5:30, 15 Ionawr 2002

Yes, of course I accept that in full. My concern does not stem from the Government's approach or their policy. It is prompted only by the approach of a small number of local authorities. I hope that the Minister will keep a close eye on the good figures and the detailed statistics that are provided. That was my underlying extra point.

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

Let us now discuss the points raised by the amendments. Proposed new section 14F makes provision for local authority support services for special guardians and children, subject to special guardianship orders. Under subsection (1), each local authority must arrange to provide support, including counselling, advice and information, and such other services as are prescribed in regulations. The Government intend to use that power to make regulations to ensure that local authorities make available a range of support services, including financial support where appropriate, for special guardians and children subject to special guardianship orders.

Regulations will also be made prescribing the circumstances in which local authorities must, at the request of special guardians and children subject to special guardianship orders, carry out an assessment

of an individual's needs for special guardianship support services. In practice, many of the services for adoption support will be relevant for special guardianship. We are already working on a new framework for adoption support, and will include special guardianship in that consultation.

Subsections (2) to (8) govern the assessment process and, where 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 individual's assessment for any other purpose. That is one of the ways in which we can overcome the concern about delay represented in the amendment.

For example, it will be appropriate for the assessment for services to happen at the same time as that for suitability. There does not have to be a special guardianship order before the needs assessment can start. It might be a good idea in some cases, so that prospective special guardians have an idea of the type and nature of the support that they would receive. To that extent, an assessment would not hold up the provision of support services; it might well promote it.

I assure the hon. Member for Canterbury that in the guidance that we issue to local authorities on the assessment procedure we shall make clear the need to avoid delay. On the wider issues that he raised, which fall more into the realms of performance management and concerns about services not being delivered properly, I assure him that if there were evidence of a council's failing to meet its statutory obligations or to deliver services as it should, we would take action to ensure that improvements were made. Such action would be decided case by case, depending on the seriousness of the failure. We would hope that, in many cases, performance assessment would have identified a failure in advance. I hope that that reassures him of the seriousness of our desire to ensure that local authorities do not delay the provision of adoption support services and that steps are taken so that that does not happen.

Amendment No. 255 relates to proposed new section 14F (6)(e), which enables regulations to be made setting out the circumstances in which local authorities, subject to conditions, may provide special guardianship support services. We intend to use regulations to enable local authorities to specify, when appropriate, that financial support must be spent on specified items or services. Those provisions are similar to those made for adoption support under clause 4(7)(f). I believe that we discussed examples of when it might be appropriate to set conditions. Financial support could be provided under the regulations on condition that the special guardians did not spend the money in any other way. For example, it might be provided in order to build an extension or to buy a larger vehicle.

Proposed new section 14F(6)(f) enables regulations to be made concerning the consequences of failure to comply with such conditions. We intend to make regulations enabling local authorities to recoup financial support that has not been spent

appropriately. That may be appropriate when a one-off grant has been paid for a specific purpose, but is unlikely to be appropriate for a regular allowance. We will consult stakeholders on the regulations to be made under these subsections to ensure that we get the detail right.

The amendments are not needed. The assessment process is not intended to delay the provision of special guardianship support services. Its purpose is to provide a way into the system, in order to prevent special guardian families from having to struggle to get the help and support that they need. Furthermore, the power to specify certain conditions on the provision of special guardianship support services is not intended in any way to compromise a person's well-being or to cause delay. In light of that explanation, I hope that the hon. Gentleman will withdraw the amendment.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I thank the Minister for that explanation. Once again, the amendments propose something that we would like in the Bill rather than in regulations. None the less, she has given us a full range of assurances on the regulations and on one aspect of performance management. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I, like all other hon. Members, support the concept of special guardianship. It will move the debate forward, provide a wider range of powers which will fit more circumstances, and be generally useful. However, the Committee should realise that not everyone feels the same. Indeed, many representations have been made against the clause. It is fit and proper that the problems that have been mentioned should be on the record. It is also fit and proper that the Government should address those problems.

It could be said that the provisions on SGOs could allow a bias against adoption. It has often been said that, in recent years, adoption has increasingly been seen as a measure of last resort. Professor Jackson, in her oral evidence to the Committee, referred to an anti-adoption culture. It is feared that some local authorities will use special guardianship orders to sideline adoption. Special guardianships deprive a child of the security of adoption, because they are not permanent. It is the permanence of adoption that provides the ultimate security for the child.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

My hon. Friend has recollected for me a point that I raised earlier. We heard evidence that about 30 years ago, in previous adoption legislation, a similar measure was produced, but that it was given up because there was so little interest in it. As someone who supports special guardianship orders in principle, my hon. Friend is right to put the case against them. The academic evidence about them was pretty lukewarm, and it is right that we should have a short discussion on the subject.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

For a child previously in care, special guardianship orders, unlike adoption orders, can be discharged by a court at the request of the local authority. Again, that attacks the concept of permanence. If special guardianship orders are to offer a permanence similar to adoption, as the Government have stated, why are the same restrictions not imposed on those who may apply for them? There is not even an upper limit on the number of individuals who can apply for special guardianship orders for the same child.

Furthermore, and finally, statistical evidence suggests that cohabiting couples are four times more likely to break up than married couples. Such relationships are not as stable as marriage. Research also shows that placing children with same-sex couples has an even poorer outcome; and by its very nature it deprives children of either a male or female role model in the home.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

I note that the hon. Gentleman is reading from the briefing note supplied by the Christian Institute. I have not seen such evidence. Yes, cohabiting couples are probably more likely to split up, but the hon. Gentleman is not comparing like with like. Many cohabiting couples do not regard their relationship as long term and are not thinking about children. If one isolates those couples who are thinking about children, I suspect that the figures would be different. Where is the evidence that adoption by same-sex couples results in a poor outcome for the children? We heard evidence—I thought that it was powerful—that occasionally children have been successfully placed in that sort of environment. We heard no evidence to the contrary.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

My hon. Friend the Member for Canterbury wants to address the same point.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I do not want to bore the Committee by going over ground that we have already covered. I will give the hon. Lady a copy of the Library's 1997 study of the subject. It is based on official statistics, which show that at the 10-year point, 85 per cent. of relationships break up where children are involved—[Interruption.]

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

Order. This sort of vicarious intervention does not help. If hon. Members want to intervene or to catch my eye, they are entitled to do so.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

The points made by the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Canterbury are both fair. The evidence suggests that cohabiting couples are more likely to break up than married couples. That is unarguable, and the Government should address the fact.

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

At the start of this debate, I spelled out the principles of special guardianship orders and said that they have been well received. However, although the arguments of the hon. Member for Huntingdon (Mr. Djanogly) against special guardianship orders were not strong, it is worth pursuing the matter briefly.

The hon. Gentleman once again said that the introduction of special guardianship orders might create a bias against adoption. As I have said in previous responses, that is most certainly not the Government's intention. Mechanisms are in place that will ensure that even if local authorities were considering the use of special guardianship orders as a way to avoid adoption—I cannot envisage why they would consider that appropriate—there would be ways in which a failure to deliver an increased number of adoptions could be highlighted and monitored. As I have spelled out, the Bill is intended to increase the use of adoption. Special guardianship is an alternative designed to meet the needs of children for whom adoption is not appropriate. As I suggested to the hon. Member for Canterbury, it may equally be seen as a more stable alternative to long-term fostering or a residence order.

The hon. Member for Canterbury raised the issue of why previous attempts to introduce something similar to special guardianship orders had failed. There may have been a variety of reasons why those initiatives were unsuccessful. First, the public perception of what was intended may have affected their success. It is also important to consider possible concerns about the extent to which support services would be provided to people entering into those arrangements. That is why the Government were right to include provisions in the Bill specifically relating to special guardianship support services. The intention is to ensure that, where special guardianship is appropriate but does not happen, the reason for not entering into it does not relate to insufficient support for those who might do so.

Furthermore, several of the Bill's provisions, including those on adoption support, are aimed directly at increasing the use of adoption. I think that everybody across the Committee has recognised that the provisions are important to increasing the number of people who feel able to adopt, which will help more adoptions to last. The independent review mechanism, in giving some right of redress to those people rejected as prospective adopters, will also encourage more people to come forward to adopt. The Adoption and Children Act register will ensure that we bring together, across the country, those who are willing to offer a home to a child and children looking for a home. It will facilitate more and quicker matches for adoption, so that more adoption can happen. Those provisions show that the Government certainly do not have a bias against adoption and have made significant progress in promoting it.

The hon. Member for Huntingdon raised some more points around the issue of special guardianship orders. First, he made the point that there was no upper limit on the number of people who can apply for a special guardianship order. There is no upper limit, but nor is there for other orders such as residence orders. However, it would be very unusual for more than two people to be granted a special guardianship order. Both the assessment process and the court

process would ensure that if an inappropriate number of people were applying for a special guardianship order it would be unlikely that they would get it.

Secondly, the hon. Gentleman raised a point about same-sex couples and special guardianship orders. The argument began with the extent to which it is appropriate for same-sex couples to take out special guardianship orders, but it will be up to the court, in accordance with the principle of the paramountcy of welfare, to make the order. There is no express provision about to whom an order may be made. It could be made to any two people, such as two sisters. Circumstances in which a special guardianship order would be appropriate include those in which the child's extended family have taken on responsibility for him or her. A range of different people could undertake special guardianship orders. The important thing is that it would be up to the court, in accordance with the principle of the paramountcy of welfare, to make the order.

I do not intend again to go over the arguments on the importance of special guardianship orders. As many members of the Committee have said, there is widespread support for the principle of special guardianship orders. There was widespread support in the consultation—the orders are seen as providing an important opportunity for children and young people to gain permanence and stability. In light of that, I hope that hon. Members will feel able to support the clause.

Question put and agreed to.

Clause 110 ordered to stand part of the Bill.