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In relation to Scotland, "the prosecutor" is to be read as "the procurator fiscal".'.—[Jacqui Smith.]
Brought up, and read the First time.
Jacqui Smith: I beg to move, That the clause be read a Second time.
Mr. Speaker: With this it will be convenient to discuss the following: Government amendments Nos. 30, 31, 233, 62, 63, 32, 144 and 145.
Amendment No. 130, in clause 128, page 72, line 13, leave out from "that" to end of line 14 and insert—
'the person may attend and be heard.'.
Amendment No. 131, in page 72, line 32, leave out from "and" to "at" in line 33 and insert—
'who has not given notice under subsection (4) of that section.'.
Government amendments Nos. 235 to 237.
Jacqui Smith: The amendments deal with offences and proceedings relating to adoption, and new clause 14 has its roots in the scrutiny by the Special Standing Committee. Clause 95(2)(a) sets a three-year time limit for bringing proceedings for all offences under the Bill. The net effect of that is to extend the time limit for summary only offences from the standard six months to three years, and to place a three-year time limit on the either-way offences, which are not normally time limited.
Members of the Special Standing Committee will recall that concerns were expressed about the three-year time limit. Offenders could escape prosecution, it was suggested, if the offence came to the attention of the authorities more than three years after it was committed. Under the operation of the current three-year inspection cycle, inspectors could discover too late that an offence had been committed immediately after their last inspection. Members of the Committee also suggested that unlawful activities might not come to light until several years after the offences were committed.
As we undertook to do, we have examined those concerns and we agree that issues need to be addressed by amendment. We considered when each offence would be likely to come to the attention of the authorities. In that context, we concluded that the Bill deals with three groups of offences, each of which we intend to provide for differently.
The first group comprises offences under clauses 81 and 83, relating to issues involving inter-country adoption, which we have just discussed. Each contains an either- way offence triable before a magistrates court or a Crown court, which provides for a higher penalty than the Bill's summary only offences. As there would have to be exceptional reasons for placing a time limit on an either-way offence, we shall remove the current time limit on the two either-way offences.
In the second group, all the other offences are summary only and may be tried only in a magistrates court. We are removing the time limit from most of those—in a moment I shall explain which summary offences will be treated differently—as we would expect the adoption agency or prosecuting authority to receive information or notice soon after the offence was committed.
Such offences are linked to activities in which the agency is involved, and it should soon learn of an offence or expect to be informed by others involved—for example, where the court orders the prospective adopters to return the child to the agency or the birth parents remove the child from the prospective adopters without the leave of the court. Therefore, we shall remove the three-year time limit, allowing the standard six-month time limit for most summary only offences to apply automatically.
To reiterate, those are offences that we would expect to be discovered within that six-month time limit. However, as members of the Committee pointed out, some may go unnoticed by the adoption agency or other authorities where an agency is not involved in making arrangements
for an adoption. In the bipartisan spirit in which we are considering the legislation, although that will not happen often, I have to say that it was the hon. Member for East Worthing and Shoreham (Tim Loughton) who raised the issue in Committee. Moreover, the agency may itself commit an offence soon after an inspection visit, and that may not be discovered until three years later when the next visit takes place.We considered extending the time limit to four years to provide for the three-year inspection cycle, but we were concerned that cases in which, for example, arrangements are made for the private adoption of a baby or an infant, or even of an unborn child, might be missed. The offence could be concealed, perhaps until the child needed to enter primary school. The new clause therefore sets a new time limit of six years for bringing proceedings for offences under clauses 9, 57, 90, 91, 92, and 119.
We think that that will provide sufficient scope to bring prosecutions against those who arrange private adoptions. The prosecuting authorities will be able to decide that if no harm has come to the child, it is not in the public interest to prosecute the parents. However, the longer time limit provides sufficient scope for the authorities to bring prosecutions against those who arranged or facilitated that private adoption. That is why we decided to set a time of six years.
The new clause extends to Scotland as well as to England and Wales, as it imposes a time limit in respect of clause 119 that extends to Scotland.
Government amendments Nos. 30, 31 and 32 relate to my earlier arguments about the series of amendments that change the legal burden in the defence provisions to an evidential burden to comply with recent court judgments on that point. I know that hon. Members were listening carefully when I outlined the reasons for that. To counterbalance the change in the burden of evidence, the amendments also amend the formulation used in the clause—that someone
- "neither knew nor had reasonable cause to believe"—
- "knew or had reason to suspect",
Government amendments Nos. 144 and 145 will ensure that only an evidential burden is placed on the defendant, and that clause 115(3) is compatible with article 6 of the European convention on human rights. They also align the clauses with the defences for electronic distribution of advertisements in the Tobacco Advertising and Promotion Bill.
I now turn to Government amendments Nos. 62 and 63. When clause 97, which was then clause 96, was considered in Committee on 4 December, we—I am using the royal we, because I was not present on that day—agreed to consider the drafting of the clause. The Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Doncaster, Central (Ms Winterton), set out the following areas for examination: first, whether there should be an automatic bar on the identification of children in the county court and the High Court to match that already in place in the magistrates court; secondly, whether county courts should have the ability to revert to open court in individual cases; and thirdly, whether to tighten the wording of the clause to ensure the anonymity of those involved in adoption proceedings.
Amendment No. 62 deals with the second of those points. The Government have considered whether county courts should have the ability to sit in open court in individual cases, and we believe that it is important that the family courts have sufficient flexibility to carry out their duties without unnecessary bureaucracy and without causing unnecessary delay. It would be undesirable for a case that is being dealt with at an otherwise suitable court centre to be transferred to the High Court solely to allow judgment that does not even identify the child concerned to be given in public. Amendment No. 62 gives county court judges the discretion to hear adoption proceedings in public when they consider it appropriate to do so—for example, where it is in the child's best interests or in the public interest.
Through amendment No. 62 we are modernising and clarifying the language used in the Bill by substituting for the phrases "in chambers" and "in camera" the phrase "in private". That clarifies the policy intention by ensuring that only those concerned with the case are present and that the public are not admitted. Recent case law has again stressed that "in chambers" is not the same as "in private", so non-parties could seek to enter a hearing in chambers. The amendment updates the clause with the more modern terminology of
- "heard and determined in private",
On the first point raised in Committee, the Government have considered the issue of the identification of children involved in adoption proceedings, and we believe that there should be an automatic bar on the identification of children in the county court and the High Court to match that already in place in the magistrates court. Amendment No. 63 therefore inserts in the Children Act 1989 a reference to the Bill, to align the protection of children under that Act and the Bill.
That will ensure that children are protected at all levels of courts by making it an offence to publish any material that is intended to identify, or likely to identify, first, any child as being involved in any proceedings before the courts in which any power under the Bill may be exercised by the court with respect to that or to any other child or, secondly, an address or school as being that of a child involved in any such proceedings.
I believe that the amendments have fulfilled the commitment that my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department made in Committee to consider the points that arose, and I hope that in the light of that explanation, hon. Members will support the new clause.
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