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(b) to give the agency any information it may require for the purpose of the assessment.
(5) Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies.
(6) In relation to a child brought into the United Kingdom for adoption in circumstances where this section applies, regulations may, in respect of a case where any requirements imposed by the regulations are not complied with, modify the reference to 13 weeks in section 13(1).
(7) If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if—
(a) he has not complied with any requirement imposed by virtue of subsection (4), or
(b) any condition required to be met by virtue of subsection (5) is not met,
before that time, or before any later time which may be prescribed.
(8) A person guilty of an offence under this section is liable—
(a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both,
(b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.
(9) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the National Assembly for Wales".
7B (1) In section 58 of the Adoption Act 1976 (restrictions on advertisements)—
(a) after subsection (1) there is inserted—
"(1A) Publishing an advertisement includes doing so by electronic means (for example, by means of the internet).",
(b) in subsection (2), for the words following "conviction" there is substituted "to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both".
7C In section 52 of the Adoption (Scotland) Act 1978 (restriction on advertisements)—
(a) after subsection (1) there is inserted—
"(1A) Publishing an advertisement includes doing so by electronic means (for example, by means of the internet).",
(b) in subsection (2), for the words following "conviction" there is substituted "to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both".'
No. 318, in page 98, line 20, at end insert—
- Advertising—[Jacqui Smith.]
Schedule 5
Amendments made: No. 319, in page 99, line 17, at end insert—
'Adoption (Scotland) Act 1978 (c.28).
Section 16(1)(a)(ii).
Section 52.
In section 53(2), the words "England and Wales or".
In section 65(1), in the definition of "order freeing a child for adoption", paragraph (a) and the word "and" immediately following that paragraph.'
No. 65, in page 99, line 18, column 2, at beginning insert—
'In section 71(1) the words "(other than proceedings under the Adoption Act 1976)".
In section 71(2) the words following "(a) and (b)".'.
No. 41, in page 99, line 20, column 2, at beginning insert—
'In section 1(8), the words following "section 50"'.
No. 267, in page 99, line 40, column 2, at end insert—
'In section 26(2)(e) and (f), the words "to consider"'.
No. 42, in page 100, line 18, column 2, at end insert "Section 7(3).'
No. 288, in page 100, line 18 column 2, at end insert "Section 14".
No. 268, in page 100, line 29, column 2, at beginning insert—
'Section 12(5)(b) and the preceding "and"'.
No. 289, in page 100, line 30, at end insert—
'This Act.
In Schedule 4, paragraphs 2A, 2B, 7A, 7B, and 7C.'
No. 300, in page 100, line 30, at end insert—
'This Act.Section 84(3A).'.—[Jacqui Smith.]
Clause 127
Amendment made: No. 234, in page 71, line 32, at end insert—
'( ) A statutory instrument containing regulations under section 61(2) made by the Scottish Ministers is to be subject to annulment in pursuance of a resolution of the Scottish Parliament.
( ) The power of the Department of Health, Social Services and Public Safety to make regulations under section 61(2) is to be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)); and any such regulations are to be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 as if they were statutory instruments within the meaning of that Act.'.—[Jacqui Smith.]
Clause 128
Amendment made: No. 226, in page 72, line 32, leave out from "19" to end of line 33 and insert—
'(and has not withdrawn the consent) unless he has given a notice under subsection (4)(a) of that section which has effect'.—[Jacqui Smith.]
Clause 129
Amendments made: No. 91, in page 73, line 3, at end insert—
'or of Her Majesty to make an Order in Council by virtue of section 116'.
No. 92, in page 73, line 10, at end insert—
'In relation to an Order in Council, "enactment" in this subsection includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament'.—[Jacqui Smith.]
Clause 130
Amendments made: No. 235, in page 73, line 26, at end insert—
'( ) Proceedings for an offence alleged to have been committed under this Act by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings in England and Wales or Northern Ireland, any rules of court relating to the service of documents have effect as if that body were a corporation.
( ) A fine imposed on an unincorporated body on its conviction of an offence under this Act is to be paid out of the funds of that body.
( ) If an unincorporated body is charged with an offence under this Act—
(a) in England and Wales, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates' Courts Act 1980 (procedure on charge of an offence against a corporation);
(b) in Northern Ireland, section 18 of the Criminal Justice Act (Northern Ireland) 1945 and Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 (procedure on charge of an offence against a corporation),
have effect in like manner as in the case of a corporation so charged.'.
No. 236, in page 73, line 27, after "body" insert "(other than a partnership)".
No. 237, in page 73, line 31, at end insert—
'( ) Where an offence under this Act committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.'.—[Jacqui Smith.]
Clause 131
Amendments made: No. 248, in page 74, line 12, at end insert—
"'enactment' includes an enactment comprised in subordinate legislation".
No. 257, in page 74,, leave out lines 24 and 25.
No. 272, in page 74,, leave out lines 35 and 36.
No. 47, in page 74, line 48, at end insert—
'( ) Any power conferred by this Act to prescribe a fee by Order in Council or regulations includes power to prescribe—
(a) a fee not exceeding a prescribed amount,
(b) a fee calculated in accordance with the Order or, as the case may be, regulations,
(c) a fee determined by the person to whom it is payable, being a fee of a reasonable amount.'.—[Jacqui Smith.]
This amendment covers the definition of where a child has his home or is placed and responds to a point raised in Committee by the hon. Member for North Dorset (Mr. Walter), which I undertook at the time to consider.
Clause 131 sets out the correct interpretation of various terms used in the Bill. Currently, subsection (2) provides that, in determining where a child has his home or is to be placed, any temporary absence by the child at school, hospital or elsewhere is to be disregarded. The hon. Member for North Dorset was keen to ensure that the courts could also discount temporary absences by the adoptive applicants in determining where a child has his home or is placed. We have looked at this matter, and we agree that it is important to provide the flexibility sought by the hon. Gentleman, to ensure that temporary absences by other parties, such as the adoptive applicants, could be excepted where appropriate.
The advice that we have received is that the most flexible way of doing that would be to remove subsection (2) entirely, which would leave the question of where a child had his home and with whom as an issue of fact to be determined by the court in each case. Advice to me suggests that the current subsection (2), which dates from the Adoption Act 1976, is unnecessary and might indeed have a restrictive effect on references to a place where a child has his home that are not covered by the exceptions listed. That would also be a risk with any amendment that attempted to exclude temporary absences by the adopters on the same basis.
The case law on "had his home" has it that this is a matter of fact to be determined in each case. It presumes regular occupation with some degree of permanency, but does not require continuous presence. It allows the court to take account of, and disregard when appropriate, any temporary absence for whatever reason by the child or any other party, but also enables the court to consider, rightly, the impact of any very lengthy absence. Government amendment No. 227 therefore seeks to deliver the same objective as the amendments tabled by the hon. Gentleman in Committee, but in a more effective manner.
On that basis, I hope that the House will feel able to support the amendment.
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