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Mr. Speaker: I have already made a study, and we reached only Question 10. I agree that ministerial replies to supplementaries are far too long. They should be brief, and so indeed should the supplementary questions. I hope that Ministers take note—we should get further down the Order Paper than Question 10.


Regulation of Child Care Providers

Mr. Geraint Davies, supported by Ms Debra Shipley, Jane Griffiths, Ms Karen Buck, Mr. Brian H. Donohoe, John Austin, Ms Julia Drown, Mr. Frank Cook, Chris McCafferty, Linda Perham, Ms Oona King and Siobhain McDonagh, presented a Bill to make provision about child care providers: And the same was read the First time; and ordered to be read a Second time on Friday 21 June, and to be printed [Bill 140].

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Orders of the Day

Adoption and Children Bill

[3rd Allotted Day]

As amended in the Standing Committee, further considered.

Clause 81

Restriction on bringing children in

3.34 pm

The Minister of State, Department of Health (Jacqui Smith): I beg to move amendment No. 59, in page 44, line 21, after "are" insert "natural".

Mr. Speaker: I remind the House that with this we are discussing Government amendments Nos. 60, 61, 29, 298, 299, 255, 38, 27, 28, 306 and 39.

Jacqui Smith: The amendments are largely linked to the Bill's inter-country provisions, which are an important part of the package of measures that the Government are putting in place to ensure that inter-country adoption takes place only where, as a minimum, the same safeguards as for domestic adoptions have been applied.

Clause 81 re-enacts the restrictions in the current legal framework that make it a criminal offence for British residents to bring a child into the United Kingdom for the purposes of adoption—in other words, intending to adopt them in the UK—unless they comply with prescribed requirements. The Adoption of Children from Overseas Regulations 2001 make it a requirement that prospective adopters apply to a local authority or voluntary adoption agency to be assessed and approved under similar procedures as those followed in domestic adoptions, and to have a certificate of eligibility issued by the Secretary of State.

The clause also extends the restrictions to include British residents bringing a child into the UK whom they have adopted outside the British islands within the past six months and do not intend to adopt in the UK, thereby closing an important loophole. It is our intention that the prescribed requirements and conditions that must be met by people wanting to bring a child into the UK for the purposes of adoption—prospective adopters—should be similar to those made under the current legal framework: that the prospective adopters apply to, and are assessed by, an adoption agency in the UK; that while going through the assessment process the prospective adopters provide as much information as requested by the agency; that the prospective adopters agree to the carrying out of police and medical checks; that the case is referred to an adoption panel; that the home study assessment and such other information as is required by the overseas authority is sent to the central authority—the Department of Health in England and the National Assembly for Wales—so that it can be checked that the proper procedures were followed and all the relevant information collected before a certificate of eligibility is issued on behalf of the Secretary of State and sent to the relevant overseas authority; and that within 14 days of arrival in the UK with a child that they intend to adopt, notice of an intention to adopt is given to the local authority in whose area the prospective adopters reside.

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The effect of those provisions is that the prospective adopters must first be assessed and approved as suitable to adopt in the UK before adopting overseas. If they do not do that, they are guilty of an offence. We will, of course, consult on draft regulations and guidance that set out the requirements that must be met prior to bringing them into force.

Clause 81 also increases the penalties for those found guilty of breaching the restrictions on bringing, or causing to bring, a child into the country. At present, the maximum penalty on conviction is three months' imprisonment or a fine of £5,000, or both. We have strengthened that so that there is a maximum penalty in a magistrates court of six months' imprisonment and/or a fine of £5,000, and the possibility of an even higher penalty if the magistrates court refers the case to a Crown court, or if the defendant enters a plea of not guilty and elects for a Crown court trial. In such cases, the maximum penalty will be 12 months' imprisonment or an unlimited fine, or both.

Finally, clause 81 allows us to apply with modifications and disapply the provisions in chapter 3 on inter-country adoption cases. It is our intention to modify the provisions to provide that, where the proper procedures have been followed, children brought to the UK for adoption spend at least six months living with their prospective adopters prior to an application being made for an adoption order, and at least 12 months where they have not. We also intend to ensure that children adopted from overseas are able to obtain access to information that the agency holds about them, although the exact nature of such information will vary depending upon the procedures in the child's state of origin. Clause 121 makes similar provision for Scotland to that made by clause 81 in respect of England and Wales.

Clause 84 allows us to put in place arrangements for the recognition in England and Wales of adoption orders made overseas. It permits the Secretary of State to make an order specifying the adoption orders to be included. The clause also allows the Secretary of State to make regulations setting out the criteria that an overseas country's procedures must meet in order for the country to be included in the list of countries whose adoptions are recognised—sometimes known as the designated list.

The current designated list was created in an order made in 1973. It was amended in 1993 to add China, but other than that it has remained unchanged. It has always been our stated intention to review the designated list. However, that is not possible without changes to primary legislation, as the removal of a country from the list would automatically remove recognition of adoptions made before the review, which would undermine the status of children and adults adopted in the past from countries included on the list. Clause 122 makes similar provision for Scotland to that made in clause 84 in respect of England and Wales.

Government amendments Nos. 59 and 60 seek to clarify the definition of the word "parent", as referred to in clause 81, in relation to overseas adoption. The policy intention is for the restrictions provided for by clause 81 not to apply where the adopter or prospective adopter is a natural parent of the child. Those amendments respond to concerns expressed by stakeholders that the term

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"parent" includes an adoptive parent, and therefore that the provision in clause 81(1)(b), which imposes the restrictions that I explained, is nullified by subsection (2), which provides that those restrictions do not apply to a parent of the child.

Mr. Julian Brazier (Canterbury): I am most grateful to the hon. Lady for giving way so early in her speech. Hon. Members understand the point that she is making, but will she explain why she feels it necessary to use the word "natural", rather than "genetic"? The term "natural parent" suggests that birth parents are the only parents who are natural. Surely adoptive parents would be natural. Why not use a more narrowly defined word, such as "genetic"?

Jacqui Smith: We understand from our discussions on the Bill that there are a lot of sensitivities about the nature of birth parents and their relationship with the child and the nature of adopters. It is generally recognised, however, that the use of the phrase "natural parent" conveys what is necessary. I suspect that we will continue to discuss some of the sensitivities involved in the use of such terms.

In response to those concerns, and following further consideration of the wording of clause 81, we seek to make amendments Nos. 59 and 60 to clarify the meaning of the word "parent".

Amendment No. 61 will provide a power to impose functions on a local authority where notice of intention to adopt has been given to the authority in respect of a child brought into the United Kingdom under clause 81(1)(a). The amendment will ensure that the maximum possible protection is conferred on children brought into the United Kingdom for the purposes of adoption. Where subsection (1)(a) applies, a person who brings a child into the United Kingdom for the purposes of adoption will be required to give a local authority notice of his or her intention to adopt within 14 days of returning to the United Kingdom.

In such a case, the intention is to impose specific functions on local authorities by regulation, following full consultation. The regulations are likely to require a local authority to visit the child, to inspect premises, to require specified information in respect of the child and prospective adopters and to monitor the child. In summary, amendment No. 61 will afford the maximum protection to be conferred on a child brought into the country for the purposes of adoption.

Amendment No. 27 is similar to amendments Nos. 59 and 60. It will ensure that the Scottish restrictions in clause 121—on bringing a child who is not habitually resident in the British isles into the United Kingdom—do not apply to a natural parent or relative.

I shall now deal with the amendments—in particular, amendment No. 29—that we have tabled to the defence provisions. We tabled the amendments to ensure that the clauses comply with the way in which the courts are now interpreting defences in the light of article 6 of the European convention on human rights, which states:

As several amendments follow the same principle, I am sure that hon. Members are paying close attention.

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3.45 pm

The amendments change the legal burden in the defence provisions to an evidential burden to comply with recent court judgments. When a person is charged with an offence in contravention of a clause that provided a defence, he will not have to prove the matter set out in that defence on the balance of probabilities. The change means that if there is sufficient evidence that a defence provision may apply to the case before the court, it will be for the prosecution to prove beyond reasonable doubt that it does not. We consider that to be the appropriate balance in the light of convention case law.

To counterbalance that change in the burden of evidence, the amendments also amend the formulation of "did not know or have reasonable cause to believe" currently in the Bill, to "did not know, and had no reason to suspect", which provides a higher test. Amendment No. 29 applies to the offence of arranging the removal of a child from the United Kingdom for the purpose of adoption, in contravention of clause 83, and I have explained the principles behind that.

Amendments Nos. 298 and 299 substantially amend clause 84. In Committee, I set out our plans to bring into force some of the Bill's provisions before full implementation. As part of the early work, we intend to begin the process of reviewing the designated list, but we want to do so in light of the regulations that will prescribe the requirements. The review will involve bilateral discussions with countries to decide which ones should be included in the list on the basis that their adoptions are likely to meet the requirements set out in regulations. Having completed the review, the Secretary of State may make an order that adoptions made in those countries from the date that the order is made are to be overseas adoptions for the purposes of the 1976 Act and the Bill, which means that they will be recognised in the UK. As it stands, we cannot begin the review against those prescribed requirements before the commencement of the Bill as a whole, and we are keen to get on with it.

I stated in Committee that I would table an amendment on Report to allow us to set in place the new arrangements in 2003, should we be in a position to do so. The revised clause 84 will enable the review to begin in advance of the commencement of the Bill as a whole. However, the review of the designated list is likely to be a time-consuming process and we will not be able to complete it in respect of some countries by the time it comes fully into force. So the amendments to clause 84 also provide the necessary flexibility to continue to recognise adoptions from those countries currently on the designated list that have not yet been reviewed.

Amendment No. 298 largely replaces what is now clause 84. Amended subsection (1) re-defines overseas adoption for the purposes of the Bill and the 1976 Act. Subsection (2) enables the Secretary of State to make regulations prescribing the requirements that should be met by an adoption that is made after the commencement of the regulations for it to be an overseas adoption. Those are likely to be: that the law in the overseas country ensures that the child has been freely given up for adoption and that that has not been induced by payment or compensation of any kind; that the overseas country makes attempts to place the child in a family in their own country; that it confirms that inter-country adoption is in

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the child's best interests; that the domestic and inter- country adoption arrangements and requirements are the same; and that profit is not made from the process.

Those are the main requirements in the amendments on the inter-country provisions. The key consideration is that the Bill already significantly strengthens and clarifies the position on inter-country adoption. Its additional restrictions and tougher penalties will protect vulnerable children overseas by acting as a deterrent to those who do not want to go through the proper assessment and approval procedures. It should also help us to ensure that a consistent service is provided to those who wish to adopt overseas, and that they are helped to navigate the often complex procedures. The amendments will provide for the Bill to go even further to strengthen the safeguards and procedures for children who are adopted overseas, and I commend them to the House.

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