Clause 92: Excepted payments

207.     Clause 92 provides that payments may be excepted from clause 91 in certain circumstances. The intention is allow payments to be made for reasonable expenses, such as legal and medical expenses in relation to an adoption, payments to a local authority or registered adoption society for expenses incurred for arranging for the adoption of a child whose country of origin is outside the UK, or for reasonably incurred travel and accommodation expenses where a child is being taken out of the UK for the purpose of adoption as permitted by clause 82(2).

208.     Subsection (1) provides that a payment is an excepted payment if it is made in compliance with a provision under this Bill, the Adoption (Scotland) Act 1978 or the Adoption (Northern Ireland) Order 1987. The payment of reasonable expenses for an adoption, proposed or actual, to a registered adoption society is excepted by subsection (2) if it is made by a parent or guardian of a child, or by a person who adopts or proposes to adopt a child. Subsection (3) provides that a payment for legal or medical expenses is an excepted payment if it is incurred by a person in respect of an application to a court for an adoption order, a placement order, or an order under clause 25 or 81. Subsection (4) provides that a payment made where a child is removed from the UK for the purpose of adoption is an excepted payment if the condition in clause 82(2) is met, and the payment is made for reasonably incurred travel and accommodation expenses.

Clause 94: Proceedings for offences

209.     Clause 94 sets out that proceedings for offences under clauses 9 and 56 are ordinarily to be brought by the registration authority. In England this will be the National Care Standards Commission and in Wales the National Assembly for Wales. Such offences can only be prosecuted by another body with the written consent of the Attorney General.

210.     All prosecutions of offences under this Bill are to be brought within six months from the date the prosecutor has sufficient evidence to do so and must not be brought more than three years after the commission of the offence. The usual time limit for prosecution is six months after the offence is committed (see section 127(1) of the Magistrates' Court Act 1980). However, in some cases offences may not come to light immediately, for example where they are uncovered by an inspection, and therefore the time limit has been increased.

Clause 95: Appeals

211.     Clause 95 applies the provisions relating to appeals in Magistrates' Courts in section 94 of the Children Act 1989 to the Bill.

Clause 96: Proceedings to be in private

212.     Clause 96 provides that proceedings under this Bill may be disposed of in chambers in the High Court, and must be heard and determined in camera in a county court. The position in Magistrates' Courts is that section 69(3) of the Magistrates' Courts Act 1980 will continue to apply and is amended consequentially in Schedule 3 to the Bill. This means that only those directly concerned with the case may be present during the proceedings.

Clause 97: Officers of the Service

213.     Clause 97 provides for an officer of the Children and Family Court Advisory and Support Service to act on behalf of a child in applications for making, varying and revoking placement orders; applications for making adoption orders and applications for the transfer of parental responsibility prior to an adoption abroad. The role of the officer is similar to that of the guardian ad litem who was replaced by virtue of an amendment to the Adoption Act 1976 by the Criminal Justice and Court Services Act 2000.

Clause 98: Right of officers of the Service to have access to adoption agency records

214.     The powers of an officer of the Children and Family Court Advisory and Support Service have been extended under clause 98 of the Bill, which creates a right to examine and take copies of an adoption agency's records relating to a proposed or actual application in respect of the child concerned. Any copy of such a document (or part of a document) will be admissible as evidence of any matter referred to in any evidence that the officer may give in the proceedings or any report he may produce to the court in those proceedings.

Clause 99: Evidence of consent

215.     Clause 99 provides for a document signifying consent to be admissible in evidence.

Clause 100: Effect of certain Scottish orders and provisions

216.     Clause 100 provides in subsection (1) that a Scottish adoption order will have the same effect in England and Wales as it has in Scotland. Subsection (2) provides that freeing orders including any revocation or variation to them are to have effect in England and Wales as they do in Scotland. Subsection (3) provides for it to be an offence in England and Wales to contravene the restrictions on removing a child who is living with prospective adopters where the adoption has been agreed or where the person applying for adoption has provided the home (the provisions in sections 27 and 28 of the Adoption (Scotland) Act 1978).

217.     Again these offences are to be prosecuted in the Magistrates' Court and the maximum penalty, set out in subsection (3), is three months' imprisonment, or a fine not exceeding level 5 on the standard scale, or both.

218.     Subsection (4) allows for orders made under section 29 of the Adoption (Scotland) Act 1978 to return or not to remove a child to have effect in England and Wales as if they were orders of the High Court.

Clause 101: Effect of certain Northern Irish orders and provisions

219.     Clause 101 provides in subsection (1) for an adoption order made in Northern Ireland to have effect in England and Wales. Subsection (2) makes the same provision as clause 100(3) in respect of the parallel provision in the Adoption (Northern Ireland) Order 1987 on restrictions on removal of a child where an adoption order is agreed or an applicant for adoption has provided a home (Articles 28 and 29 of the Adoption (Northern Ireland) Order 1987). Similarly subsection (3) allows for orders made under Article 30 of the Adoption (Northern Ireland) Order 1987 to return or not to remove a child to have effect in England and Wales as if they were orders of the High Court.

Clause 102: Use of adoption records from other parts of the British islands

220.     Clause 102 allows any document that can be used as evidence in Scotland, Northern Ireland, the Isle of Man, or any of the Channel Islands, under the provisions set out in this clause, also to be used as evidence in England and Wales. This clause replaces section 60 of the Adoption Act 1976 which did not extend to the Isle of Man or Channel Islands.

Clause 103: Orders made in the Channel Islands or the Isle of Man

221.     Clause 103 enables regulations to be made that provide for orders made by a court in the Isle of Man or in any of the Channel Islands that have the same or similar effect to any order that can be made under Part 1 of the Bill (for example a placement or adoption order), to have effect in England and Wales as if they were such orders.

Clause 104: Avoiding delay

222.     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 any directions that are necessary to ensure that that timetable is adhered to.

Clause 105: Service of notices etc.

223.     Clause 105 provides that any notice or information required to be given under the Bill may be given by post.

Part 2 - Amendments of the Children Act 1989

224.     Part 2 amends the Children Act 1989. Regulations under this group of clauses will be made by the Secretary of State in England and the National Assembly in Wales. The National Assembly for Wales (Transfer of Functions) Order 1999 (TFO) transferred the functions of the Secretary of State under the Children Act 1989 to the Assembly so far as those functions are exercisable in Wales. Clause 130(1) provides that the TFO is to be treated as referring to the Children Act 1989 as amended by this Bill. Consequently, the Assembly has the regulation making power given to the Secretary of State in the Children Act 1989, in relation to Wales.

Clause 106: Parental responsibility of unmarried father

225.     Clause 106 amends section 4 of the Children Act 1989 to provide that a father who is not married to the mother at the time of the child's birth is to have parental responsibility if registration or re-registration of the birth takes place according to the provisions of the Births and Deaths Registration Act 1953 and equivalent provisions for Scotland and Northern Ireland. Parental responsibility granted to an unmarried father under these provisions may only be terminated by the order of a court. Applications for the termination may be made by any person who has parental responsibility for the child or, with leave, the child.

Clause 107: Acquisition of parental responsibility by step-parent

226.     Clause 107 inserts section 4A into the Children Act 1989 to enable a step-parent to acquire parental responsibility for a child of his spouse. This may be acquired either by agreement between the step-parent and the parents who have parental responsibility for the child, or by order of the court. This measure is intended to provide an alternative to adoption where a step-parent wishes to acquire parental responsibility for his or her step-child. It has the advantage of not removing parental responsibility from the other birth parent and does not legally separate the child from membership of the family of the other birth parent.

Clause 108: Section 8 orders: local authority foster parents

227.     Clause 108 amends section 9 of the Children Act 1989. Section 9(3) provides that local authority foster carers may not seek leave of the court to apply for a section 8 order (including a residence order) in respect of a child unless they have the consent of the local authority, they are a relative of the child, or the child has been living with them for three years. The amendment replaces the period of three years with a one year period. This is intended to align the position with the residence requirement for local authority foster carers giving notice of their intention to adopt a child living with them (see clause 43(4)).

Clause 109: Residence orders: extension to age of 18

228.     Clause 109 amends section 12 of the Children Act 1989 to empower the court to direct in an appropriate case that a residence order made in favour of someone who is not the parent or guardian of a child may be extended until the child reaches the age of 18. At present a residence order ceases to have effect when the child reaches the age of 16, unless the court is satisfied that the circumstances are exceptional. Clause 109 further provides that where the court has directed that the order may be so extended, an application to vary or discharge the order may only be made with the leave of the court. The intention of this measure is to provide a further means of delivering enhanced security where the holder of a residence order who is not the child's parent is caring for the child on a long term basis.

Clause 110: Special guardianship orders

229.     Special guardianship orders are intended to meet the needs of children who cannot live with their birth parents, for whom adoption is not appropriate, but who could still benefit from a legally secure placement.

230.     Clause 110(1) inserts new sections 14A to 14G into the Children Act 1989 to provide for a new special guardianship order. The new sections provide for who may apply for an order, the circumstances in which orders may be made, the nature and effect of special guardianship orders, and for local authority support services for special guardians.

231.     New section 14A provides for who may apply for a special guardianship order and the application process. The person in whose favour a special guardianship order is made is a 'special guardian'. People may apply jointly to become special guardians. They need not be married. Subsection (2) provides that special guardians must be 18 or over and that the parents of a child may not become his special guardian. Subsections (3) to (5) make provision about who may apply for an order. A court may make a special guardianship order in respect of any child on the application of:

• any guardian of the child;

• anyone who holds a residence order with respect to the child, or has the consent of all those in whose favour a residence order is in force;

• anyone with whom the child has lived for three out of the last five years;

• where the child is in the care of a local authority, anyone with the authority's consent;

• in any other case, anyone who has the consent of all those with parental responsibility for the child;

• anyone else, including the child, who has the leave of the court to apply.

232.     The effect of subsection (4) is that local authority foster parents may apply with the leave of the court if the child has lived with them for a year. Under subsection (6) the court may also make special guardianship orders in any family proceedings concerning the welfare of a child if they consider an order should be made, even if no application has been made. Family proceedings are defined in section 8(3) of the Children Act 1989 and include adoption proceedings under this Bill. 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.

233.     Subsections (7) onwards set out the application process. Applicants must give 3 months' written notice to the local authority of their intention to apply for the order. The local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters. Regulations may prescribe matters to be covered in the report. The local authority may arrange for someone else to carry out the investigation or prepare the report under subsection (10). It is intended to use these arrangements to ensure a proper assessment process is followed for special guardians. The court may not make an order unless it has received a report covering the suitability of the applicants. It is intended to provide in secondary legislation that an officer of the Children and Family Court Advisory and Support Service (CAFCASS) is to be appointed in appropriate special guardianship proceedings.

234.     New section 14B provides that before making a special guardianship order the court must consider whether a contact order (for example, to enable continued contact with the child's birth parents) should be made at the same time. The court may also on making the special guardianship order give leave for the child to be known by a new surname and give permission for the child to be taken out of the United Kingdom for any period longer than three months.

235.     New section 14C sets out the effect of special guardianship orders. Subsection (1) gives the special guardian parental responsibility for the child. The special guardian may exercise parental responsibility to the exclusion of others with parental responsibility, save in those circumstances where the law provides that the consent of all parties with parental responsibility may be or is required (for example, the sterilisation of a child) (subsection 2(a)). Subsections (3) and (4) provide that while an order is in force the child may only be known by a different surname or be removed from the UK for longer than three months with the consent of all those who have parental responsibility, or with the leave of the court.

236.     The intention is that the special guardian has clear responsibility for all the day to day decisions about caring for the child or young person and for taking decisions about his upbringing. But the order retains the basic legal link with the birth parents, unlike adoption. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent or not to the child's adoption or placement for adoption (subsection 2(b)). Subsection (5) provides that the special guardian must also take reasonable steps to inform them if the child dies.

237.     New section 14D provides that, unlike adoption orders, special guardianship orders can be varied or discharged on the application of:

• the special guardian;

• the child's parents or guardian (they may only apply after one year and only with the leave of the court and leave is to be granted only if there has been a significant change of circumstances since the order was made);

• the child (with the leave of the court);

• if a care order is made in respect of the child, the local authority can apply to discharge the special guardianship order;

• anyone who has a residence order in respect of the child.

238.     Subsection (2) provides that the court may, during any family proceedings in which a question arises about the welfare of a child who is subject to a special guardianship order, vary or discharge the order in the absence of an application.

239.     New section 14E makes supplemental provisions, including allowing the court to set timescales for proceedings involving special guardianship applications.

240.     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 are prescribed in regulations (subsection (1)). Regulations will be made prescribing the circumstances where local authorities must, at the request of special guardians and children subject to special guardianship orders, carry out an assessment of that person's needs for special guardianship support services (subsection (2)). It is intended to use these regulations to ensure that local authorities put in place a range of support services, including financial support, to be available where appropriate for special guardians and children subject to special guardianship orders. Subsections (4) to (9) 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 assessment of that person's needs for any other purpose (subsection (8)). Again, the intention is to facilitate joined up planning and provision of public services support. There is provision for local authorities to delegate assessments and the provision of special guardianship support services to other local authorities or prescribed persons (subsection (7)).

241.     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. Subsection (3) provides that in considering representations local authorities must follow any regulations made by the Secretary of State. It is intended to use these 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 as amended by clause 111 (paragraphs 245 to 249).

242.     Subsections (2) to (4) amend sections 1 and 5 of the Children Act 1989. Subsection (3) amends section 1 to apply the welfare checklist to special guardianship applications. Subsection (4) amends section (5) to make provision about the appointment of guardians for children after the death of a special guardian.

243.     Further provision about special guardianship is made in Schedule 3. Schedule 3 amends the provisions added to the Children Act 1989 by the Children (Leaving Care) Act 2000 to place a duty on local authorities to consider whether to provide advice and assistance to former looked-after children aged between 16 and 21 subject to special guardianship orders, including support for employment, education and training. Where the authority determines the child is in need of advice and assistance that the special guardian cannot give him, the authority is placed under a duty to advise and befriend him and may also provide him with assistance, for example in respect of education and training.

244.     Schedule 3 also provides that a special guardianship order when made discharges any existing care order, related contact order or any order made under section 8 of the Children Act 1989 (such as a residence order). However, if the need arises, a care order or a residence order may be made while a special guardianship order is in force. If made, the special guardianship order is not automatically discharged but the local authority concerned or person in whose favour the residence order is made will have the right to apply for discharge or variation of a special guardianship order by new section 14D.

Clause 111: Inquiries by local authorities into representations

245.     Clause 111 amends sections 24D and 26 of the Children Act 1989 by making further provision for inquiries carried out by local authorities into representations about services provided under that Act. This clause enables regulations to be made to impose time limits for the making of representations, to provide for an informal resolution stage and to extend the complaints procedure to services provided under Parts 4 and 5 of the 1989 Act.

246.     Subsection (1) enables the Secretary of State to make regulations imposing time limits on the making of representations under section 24D(1) of the 1989 Act. Section 24D was inserted into the 1989 Act by the Children (Leaving Care) Act 2000.

247.     Subsections (2) to (7) amend section 26 of the 1989 Act, which requires local authorities to establish a procedure for considering any representations about services provided by them under Part 3 of that Act. Under subsection (6), the Secretary of State may make regulations imposing time limits on the making of representations under that section.

248.     Subsection (3) amends section 26(3) of the 1989 Act to provide that every local authority must establish a procedure for considering representations in respect of "qualifying functions". The qualifying functions are listed at subsection (4). They include functions under Part 3 of the 1989 Act, which are covered by section 26(3) at present, and functions under Parts 4 or 5 of that Act as specified in regulations. The extension of the procedure to specified functions under Parts 4 and 5 of the 1989 Act will ensure that representations about the exercise of a local authority's functions in relation to children under that Act are brought within one child-centred procedure. The regulations will be used to extend the procedure to appropriate local authority functions under Parts 4 and 5 of the 1989 Act, without impinging on any matter which is subject to the jurisdiction of the courts.

249.     Subsection (5) provides that the requirement to involve an independent person in the complaints procedure is subject to the provisions in subsection (7). Subsection (7) enables regulations to be made providing that the requirement for an independent person does not apply in relation to the procedure for any informal resolution stage established in regulations. An informal resolution stage is currently required by the complaints procedure established in Directions made under section 7B of the Local Authority Social Services Act 1970.

Clause 112: Care plans

250.     Clause 112 amends section 31 of the Children Act 1989 to provide that a court may not make a care order until a care plan has been prepared by the local authority and considered by the court (subsection (1)). Subsection (2) inserts a new section 31A into the 1989 Act. This places a duty on the local authority in whose favour a care order is intended to be made to prepare a care plan within a timescale set by the court. Regulations will set out how the plan is to be drawn up and the information to be included (new section 31A(3)).

Part 3

Miscellaneous and Final Provisions

Chapter 1 - Miscellaneous

Clause 113: Restrictions on advertisements etc.

251.     Clause 113 is a restatement and amendment of section 58 of the Adoption Act 1976. Section 58 of that Act restricts the publication of advertisements indicating that the parent or guardian of a child want that child to be adopted, that a person wants to adopt a child, or that persons other than adoption agencies are willing to make arrangements for the adoption of a child. Clause 113 goes further than this. It imposes a new restriction on the distribution of such advertisements, on advertisements that a person is willing to remove a child from the UK for the purpose of adoption, and on the publication and distribution of information about how to make arrangements for the adoption of a child.

252.     Subsection (1) provides that a person must not publish or distribute an advertisement or information to which this clause applies. Subsection (2) provides that this clause applies to an advertisement that the parent or guardian of a child wants the child to be adopted, that a person wants to adopt a child, that a person is willing to take specific steps to arrange an adoption, as set out in clause 88, or that a person is willing to remove children from the United Kingdom for the purposes of adoption. Subsection (3) states that this provision also applies to information about how to do anything which, if done, would constitute an offence under clauses 82 or 89 and the mirror provisions of the Adoption (Scotland) Act 1978 and the Adoption (Northern Ireland) Order 1987, or to information about a particular child as a child available for adoption.

253.     Subsection (4) defines publishing and distribution. This provision covers all forms of publication and distribution, including electronic means such as the Internet. Subsection (5) provides that this clause does not apply to publication or distribution by or on behalf of an adoption agency. Under subsection (6) the Secretary of State may by order make any amendments of this clause necessary to take into account developments in technology relating to publishing or distributing advertisements or other information by electronic or electro-magnetic means.

254.     Any such order cannot be made without being approved by both the House of Commons and the House of Lords. Before exercising the power provided by subsection (6) the Secretary of State must, under subsection (7), consult the Scottish Ministers, the Department of Health, Social Services and Public Safety (in Northern Ireland) and the Assembly. Subsection (8) provides that an adoption agency includes a Scottish or Northern Irish adoption agency.