Special Standing Committee
Tuesday 20 November 2001
[Mr. David Hinchliffe in the Chair]
(The First Sitting of the Committee was held in private on
Tuesday 6 November 2001)
Examination of Witnesses
Memorandum from the Department of Health
KEY CHANGES
1. The Adoption and Children Bill was previously introduced to Parliament on 15 March 2001. It was referred to a Select Committee which held three public hearings and received evidence from adoption stakeholders and members of the public. The Bill fell at the dissolution of Parliament.
2. This paper sets out the substantive policy changes and additions incorporated in the version of the Bill introduced on 19 October. These fall into six main areas:
—adoption support—a widening of the assessment provisions and the introduction of new registration provisions;
—the placement provisions—changes to placement orders, in particular bringing them into closer alignment with the Children Act 1989;
—access to information about a person's adoption—where the Bill sets out new proposals in this area;
—intercountry adoption—the Bill incorporates new controls developed following the Government's review of the legislative framework earlier this year;
—special guardianship—the introduction of new provisions covering support services for these placements;
—devolution—the Bill now incorporates a range of measures in respect of Scotland, Wales and Northern Ireland.
3. Several of these changes have been made in response to evidence submitted to the Select Committee. In addition to the major policy changes highlighted, there have been a large number of drafting improvements to the Bill.
Right to an assessment for adoption support services (clause 4)
4. The White Paper Adoption: a new approach, published in December 2000, included a commitment to ``give all families adopting children, especially those who have been looked after, a new right to an assessment by their council for post-placement support''. Clause 4(1) of the previous version of the Bill underpinned this new right to an assessment for adopted children and their adoptive parents. It was intended that other people affected by adoption, such as birth parents and adopted adults, would continue to be able to approach their local authority and request adoption support services, as under the existing arrangements.
5. Concern was expressed by adoption stakeholders during Select Committee that the rights of everyone affected by adoption to have their needs for adoption support services considered should be made clear on the face of the Bill. In response to these concerns, clause 4(1) of the new Bill places local authorities under a duty to carry out an assessment of the needs for adoption support of all those listed in clause 3(1). The right to an assessment therefore now applies to children who may be adopted, birth parents and guardians of such children, prospective adopters, adopted children and adults, adoptive parents, birth parents and former guardians of adopted people.
6. It is anticipated that different types of assessments will be appropriate for different parties. The details of the various types of assessment will be set out in regulations made under clause 4(7)(b). These assessment procedures will be determined in consultation with stakeholders, as part of the work on the new framework for adoption support promised in the White Paper. Detailed proposals for this framework covering the range of services to be put in place, including financial support, as well as arrangements for assessment, are to be published for consultation in the spring.
Registration of adoption support providers (clause 8)
7. The Bill includes new provisions to allow organisations other than adoption agencies to provide adoption support services, whilst ensuring that organisations operating in this sector are properly regulated.
8. Clause 8 amends the Care Standards Act 2000 to require adoption support agencies to register with the registration authority (the National Care Standards Commission in England and the National Assembly in Wales) under Part 2 of that Act. An adoption support agency may be voluntary or profit-making, and both organisations and sole practitioners providing adoption support services will be required to apply for registration. These provisions will affect adoption support providers which are not currently subject to any form of inspection or regulation, such as post-adoption support centres and independent counsellors providing adoption support services. Adoption support providers which are already regulated through other means, such as local authorities, approved voluntary adoption agencies, NHS providers and the Registrar General, will be exempt from the new registration scheme in order to prevent unnecessary duplication of registration.
9. Registration will ensure that adoption support services are provided to an appropriately high standard by staff with the necessary training and expertise. Registered adoption support agencies will be able to provide birth records counselling under paragraph 2(1)(b) of Schedule 2 of the Bill, in line with the White Paper commitment to enable bodies other than approved voluntary adoption agencies to provide birth records counselling for adopted people. They will also be able to provide counselling in respect of information disclosed by adoption agencies under clause 60, as part of the new scheme for access to information underpinned by the Bill.
10. Provision of adoption support services without being appropriately registered will be an offence under section 11 of the Care Standards Act 2000, punishable by a maximum penalty of a fine not exceeding level 5 on the standard scale (£5000) and/or imprisonment for a term not exceeding six months.
11. The Government made clear its intention to introduce provisions to this effect at the time of introduction of the previous version of the Bill in March.
Placement Orders (clause 20)
12. A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority. A local authority must apply for a placement order where they are satisfied that a child should be adopted, but the parents do not consent to placement or have withdrawn their consent.
13. In response to points raised in consultation on the previous version of the Bill, the Government has restricted the ability to seek placement orders to local authorities only. Previously this was also open to voluntary adoption agencies. This change was made in recognition of concerns that it is inappropriate for voluntary organisations to be able to apply to the court to have a child compulsorily placed for adoption against the parent's wishes.
14. A further change has also been made to this clause to provide that a court may not make a placement order unless the child is already subject to a care order, or the court has the power to make a care order under section 31(2) of the Children Act 1989. In order to be able to make a care order (and therefore a placement order) the court must first be satisfied that the child is suffering, or likely to suffer, significant harm, and also that the harm or likelihood of harm is attributable to the care being given to the child or likely to be given to him if no order were made not being that reasonably expected of a parent, or the child is beyond parental control.
15. Linking the making of placement orders with these provisions in the Children Act 1989 is intended to deliver on the Government's undertaking to align adoption law with the Children Act. The same threshold for compulsory intervention in family life is to apply where a local authority seeks authority to place a child for adoption without parental consent as applies where an authority seeks to take a child into care under a care order. Where a court considers the `significant harm' threshold is met, it will then consider whether a placement order should be made. The provisions in clause 1 of the Bill will apply—the child's welfare will be the paramount consideration, the court will apply the welfare checklist set out in clause 1(4) and the court will have to consider its full range of powers and will only make the order if it is better for the child than not to do so.
16. This change has also been made in response to consultation on the previous version of the Bill. Several stakeholders in their evidence to the Select Committee expressed concern that children could be placed for adoption against the parent's wishes without this threshold being met. This was felt to be inappropriate given the widely understood and accepted principles of the Children Act.
Access to Information (clauses 53 to 62)
17. The new version of the Bill aims to provide for a more consistent approach to access to information held in adoption agency records, and to information held in birth records. The Bill provides for a single point of access to identifying information through adoption agencies, as the bodies best placed to provide the support and counselling needed for this sensitive task. This new scheme seeks to recognise the interests of all those involved and to take account of their views wherever possible. The provisions are new and the Government would welcome views on whether they strike the right balance.
18. Further information about the new scheme for access to information is provided at Annex A.
Intercountry Adoption (clauses 80 and 83)
19. The Bill includes new tighter controls on intercountry adoption. The need for improved safeguards was highlighted by the high profile Internet twins case earlier this year. The Government made clear its commitment to further consider the controls needed for intercountry adoption at the time of introduction of the previous version of the Bill.
20. Chapter 6 of the Bill incorporates many of the measures in the Adoption (Intercountry Aspects) Act 1999 and extends those measures with new safeguards and penalties. The 1999 Act will largely be repealed in respect of England and Wales when the Bill is enacted.
21. Clause 80 restates the restriction in section 14 of the 1999 Act in respect of British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the UK with the intention of adopting the child in the UK, unless the person complies with prescribed requirements and meets prescribed conditions. It also introduces a new offence where a child is brought into the UK after being adopted overseas by a British resident within the previous six months, where the British resident has not complied with prescribed requirements and met prescribed conditions. This is in addition to the provision included in the March version of the Bill. It is intended that in both cases regulations will require the British resident to be assessed and approved as suitable to adopt by a UK adoption agency prior to bringing the child into the UK.
22. The new Bill puts in place tougher penalties for those seeking to circumvent the safeguards in clause 80. A person not following the proper procedure will be liable on summary conviction to up to six months' imprisonment and/or a fine not exceeding £5,000 or, in the event of the case being referred to the Crown Court, up to twelve months' imprisonment and/or an unlimited fine.
23. Clause 83 has been amended to allow the Government to ensure that in the future adoption orders made overseas will only be recognised in the UK when the systems in that country meet criteria set out in regulations. A new designated list will be established based on clear criteria. The criteria will include ensuring that proper consents have been given by the birth parents, that the prospective adopters have been assessed and approved as suitable to adopt, and that no profit has been made from the process.
Clause 110 -Support for Special Guardianship Placements
24. New section 14F of clause 110 makes provision for local authority support services for special guardians and children subject to special guardianship orders. The White Paper Adoption: a new approach made clear that special guardians should have access to the full range of support services, including, where appropriate, financial support, to help the placement succeed. The Government made clear its intention to introduce provisions to this effect when the previous version of the Bill was introduced in March. New section 14F fulfils this commitment.
25. Section 14F places local authorities under a duty to make arrangements to provide support services for special guardianship placements. The support services will include counselling, advice and information, and other services as prescribed in regulations. It is intended that the services prescribed in regulations will include financial support.
26. 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 that person's needs for special guardianship support services. The Government has indicated its intention to consult widely with stakeholders in developing the regulations on support services for special guardianship placements.
27. The provisions on special guardianship support in section 14F are very similar to the provisions in clauses 3 and 4 dealing with adoption support. As with adoption support services, the local authority may carry out an assessment of need at the same time as an assessment of that person's needs for any other purpose. The intention is to facilitate the joined up planning and provision of public services support.
Devolution (clauses 113, 115 to 119 and 120)
28. The new Bill includes changes in respect of Wales, Scotland and Northern Ireland.
29. In respect of Wales, the Adoption Register provisions (clauses 115 to 119) now provide for the register to be established and run jointly by the Secretary of State and the National Assembly for Wales.
30. The Scottish Parliament has confirmed that it is content for the Bill to cover Scotland in respect of the enhanced intercountry adoption controls. Clause 120 therefore provides in Scots law for new restrictions along the lines of those in clause 80. It is intended to bring forward a complementary Scottish provision on the designated list during the passage of the Bill. It is also intended to add provisions to cover the cross border effects of the placement provisions.
31. The restrictions on advertising in clause 113 apply to both Scotland and Northern Ireland. It is also intended to extend the reform of the designated list to Northern Ireland
ANNEX A
Access to information about a person's adoption
Introduction
1. The Bill includes new provisions governing the disclosure to adopted people of background information held by the adoption agency in connection with their adoption, the disclosure of identifying information and for access to their birth records. The provisions also cover the disclosure by the adoption agency of information to birth relatives and others. Many of these provisions are new, and the Government would welcome views on whether it has achieved the right balance.
2. This annex briefly describes the:
—current position
—provisions as set out in the Bill as introduced in March
—changes made in the new Bill
Current position
3. Regulations1 provide that adoption agencies may disclose information in its possession, as it thinks fit for the purposes of carrying out its functions as an adoption agency. This enables for example adoption agencies to disclose information to:
—an adopted person about his background, although the guidance advises that this would not include the information recorded on the birth certificate as disclosure of this is provided for separately in the Adoption Act 1976;
—and to birth parents, information about the adopted child's progress. The guidance indicates that the child's new identity and whereabouts should not be disclosed.
4. The regulations thus give a wide discretion to adoption agencies and there are variations in practice. In many cases this works well. In some cases agencies have passed on sensitive identifying information without consulting the person who would be identified.
5. Section 51 in the Adoption Act 1976 provides that an adopted person aged 18 or over could obtain on request the information necessary for him to obtain a certified copy of his birth certificate from the Registrar General, which identifies the birth parents. In 1975, Parliament, in recognition that there was less stigma associated with adoption and of the need for more openness, decided to remove the guarantee of complete confidentiality given to birth parents who had previously placed their children for adoption. Until then, adopted persons were not statutorily able to find out information about their parents.
6. Section 51 has worked well in the vast majority of cases. However, since the 1976 Act there have been concerns about a small number of cases where there could be a risk to birth parents if they were traced through the birth records. In 1991, a court case2 was brought against the Registrar General's refusal to disclose the necessary information for a certified copy of a birth certificate to be obtained by a man with a personality disorder who had been adopted and was thought to be a danger to the woman who would be revealed as his natural mother.
7. The case went on to the Court of Appeal which decided that although the Registrar General has a duty to provide the information necessary for a person to obtain a birth certificate, he should not comply if to do so would:
—enable a person to benefit from a serious crime committed by him or to benefit from a serious crime he intended to commit
—or if circumstances were such that there was a current and justified apprehension of a significant risk that he might in the future use the information to commit a serious crime.
8. However, the Registrar General often does not have sufficient information about the adopted person or his birth family and so is not well placed in trying to reach a decision to withhold birth records where there is the possibility of a serious crime being committed. Nor are birth relatives able to take legal action to prevent the Registrar General from releasing identifying information unless they become aware that the adopted person is trying to trace them. Some birth relatives have experienced distress at having their identifying details passed on to the adopted person and they have complained that they were not asked for their consent.
9. Regulations3 currently provide that as soon as practicable after an adoption order is made, the adoption agency must provide the adopters with such information about the child as the agency considers is appropriate. The type and form of the information disclosed under this provision is not specified.
10. Guidance advises that agencies should be able to pass on to the adoptive parent much of the material held on the child's case record, while seeking to respect the confidential basis on which information may have been supplied. The adopters must be advised when they receive this information that it should be passed to the child when the adopters consider it is the right time to do so but in any event not later than the child's eighteenth birthday.
The Adoption and Children Bill, March 2001
11. The Adoption White Paper included a commitment to provide adopted people with consistency of access to information about their family history and their adoption. When the Adoption and Children Bill was published in March it included a new right for adopted people to have access to a standard package of background information from their adoption agency records when they reach the age of 18 about their former lives. In most cases, it is envisaged that adopted people will be able to obtain the information they need about their birth family. However, there might be circumstances where information identifies an individual against their wishes. The Bill was therefore drafted to provide for identifying information to be given if the individual's consent was forthcoming.
12. Where the information would identify an individual, for example birth parents, clause 49 of the Bill provided that such information could not be released by an adoption agency or the court without the consent of the individual concerned. In their evidence to the Select Committee several organisations expressed concern that there was no provision for the adoption agency to have discretion to override these objections.
13. However, clauses 63 and 64 mirrored section 51 in the Adoption Act 1976 in giving adopted people automatic access to their birth record, as described in paragraph 5.
New provisions on the disclosure of information
14. The Government has put forward proposals in the new version of the Bill that seek to create a new system for access to information. It would provide a single point of access to identifying information4 through adoption agencies and would apply to adoptions made after the Bill is implemented. As many of these provisions are new the Government would like to hear views on whether they strike the right balance.
15. The provisions are based on the following objectives:
—to ensure consistency of access to information for adopted people about the background to their adoption, a commitment made in the White Paper
—to give every individual involved in a person's adoption a right to express their wishes about the sensitive information that identifies them
—to give adoption agencies the discretion in exceptional circumstances to determine whether to override a decision to withhold or disclose identifying information
—and to balance the agency's exercise of discretion by providing a right for an independent review of the adoption agency's determination.
16. The intention is for the system to work generally as follows:
a) to deliver on the White Paper commitment, there should be standard package of information about a person's adoption and his background5 which is held by the adoption agency which:
i) provides information about others, such as birth parents and siblings, but does not identify them6
ii) is disclosed7 to the adopters as soon as possible after the adoption order
iii) is available8 as a right to the adopted person when he reaches the age of 18
b) that the adopted adult will be able to ask for identifying information about anyone involved in their adoption and to have it disclosed9 to them by the adoption agency provided:10
i) the birth parents11 have not objected to the disclosure of information that would identify them. This would include whether they have a specific objection to the disclosure of the information on the birth certificate. It is envisaged that in majority of cases the birth parents will be willing for the birth certificate to be made available through the adopted person's adoption agency12. The adopted person will have information about their date and place of birth, whether there is an objection or not.
ii) or consent has been granted by anyone else who would be identified
c) that the birth parents and others will be able to ask for identifying information about anyone involved in the adoption and to have it disclosed13 to them by the adoption agency provided14 consent has been granted by the person who would be identified.
d) in exceptional circumstances, the adoption agency would be required15 through regulations and under guidance to exercise a discretion in determining whether to disclose or to withhold identifying information. Examples include where one of the birth parents objects to the release of identifying information but the other does not. Another might be where an adopted person has asked for identifying information, the birth relative has objected but the interests of the adopted person's health and welfare are such that he should have the identifying information.
e) where the adoption agency reaches a determination to disclose or withhold identifying information contrary to the expressed view of the relevant party, it is to be subject to a review by an independent panel which would be constituted under the power provided by clause 12 in the Bill. For example, an adopted person would have a right to ask for a review of a determination by the adoption agency to withhold the information.
17. Many adoptions are now made on an open basis. Open adoptions are adoptions where it is seen to be beneficial for the child for the exchange of information and or contact to take place between the birth and adoptive families. Often the child knows from an early stage that he or she has been adopted; the adoptive parents and the adopted person have identifying information about the birth parents; and the birth parents have identifying information about the adoptive family and the adopted child.
18. The measures in the Bill that provide for the safeguarding of identifying information are intended to provide for the minority of adoptions where the sharing of such information is not seen to be appropriate in the circumstances and to ensure that where sensitive information is shared the views and interests of all parties are considered. To ensure that arrangements for open adoptions are clear and that they are not hindered where there is agreement clause 54(6) provides for the disclosure of protected information and section 76 information where an agreement is reached that includes the adoption agency. The intention is to provide for means to underpin an agreement between the adoption agency, the adoptive parents and the birth parents for the sharing of identifying information where the agency considers that an open adoption agreement would benefit the child's welfare and best interests.
Notes:
1 Adoption Agencies Regulations 1983, regulation 15
2 R. V. Registrar General, ex p. Smith, [1991] 2 All E. R. 88
3 Adoption Agencies Regulations 1983, regulations 12 & 13A
4 Clause 54(3). Identifying information is defined as information where a person is named or otherwise identified, and information from which someone can be identified from that information if it is put together with other information that the agency releases.
5 Clause 55(4). Background information will include information such as the child's birth details, medical history, interests, any special needs and progress. Such information will assist the adopters in the care and upbringing of the child.
6 Clause 57(1)(b).
7 Clause 57.
8 Clause 58 (2).
9 Clause 58(5)
10 Clause 58(6)
11 Clause 61(3). Birth parents will be informed at the time of the adoption order of their right to object until such time as the adopted person applies for their identifying information.
12 The Registrar General will retain his duty to maintain the birth records of the adopted person. He will also retain his duty to maintain the Adopted Children Register and the Adoption Contact Register. Under clauses 58(5), 59(2) and 76(3) access to the birth records of the adopted person will be provided through the adoption agency, as the agency is best placed to undertake this sensitive task.
13 Clause 59(2).
14 Clause 59(3).
15 Clause 61(1)(a)
Mark Ferrero, Branch Head, Adoption and Permanance, Cathy Morgan, Section Head, Adoption and Permanence, James Paton, Bill Principal, Adoption and Children Bill, Directorate of Children, Older People and Social Care Services, and Sandra Walker, Assistant Director, Solicitor's Office Division C, Health and Personal Social Services, Department of Health; Amanda Finlay, Director of Public and Private Rights, Lord Chancellor's Department; and Kieron Mahoney, Office for National Statistics, called in and examined.
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