Adoption and Children Bill

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Mr. Llwyd: The comments of the hon. Member for East Worthing and Shoreham have a great resonance. He related his personal circumstances and the breakdown of his parents' marriage. It was the very issues he raised in that respect that drove me to table an amendment to the Bill that became the Family Law Act 1996, which stated that

    ``In making the decision, the Court shall also have regard, on the evidence before it, to

    (a) the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed.''

In that debate, I spoke about consent orders in divorce—when everything was decided down to who had care and control of the dog, but no one discussed matters directly with the young children who were, so to speak, in the eye of the storm. It was exactly the sort of poignant situation that the hon. Gentleman describes that drove me to amend the law in 1996.

Although amendment No. 15 may look like a simple probing amendment, it is important. The hon. Gentleman is right to say that all that the authorities require might be found on paper. However, if we are serious about the paramountcy of the welfare of the child and young person throughout his or her life, as is claimed in the clause, we must recognise that the decisions are momentous and the child or young person should be interviewed about them one to one. That may be an obvious point, but the amendment is worthy. I hope that the Minister will give an assurance in her response.

Jacqui Smith: I have considerable sympathy with the views expressed by the hon. Gentlemen, but the Bill already provides what is needed. I hope that I will be able to give Committee members the assurances they are right to want about the nature of children's involvement in the decision making.

The Government believe that the child's wishes and feelings should be actively sought and fully taken into account at all stages of the adoption process. That is a key value that underpins our national adoption standards, which specify that

    ``every child should have his wishes and feelings listened to, recorded and taken into account. Where they are not acted on, the reasons for doing so will be explained to the child and properly recorded''.

The Bill underpins that principle. Under clause 1(4)(a), courts and adoption agencies will be under a positive legal obligation to ascertain the child's wishes and feelings about all decisions relating to adoption, and to take them into account in the light of their age and understanding. They must do that. It is a legal obligation.

The hon. Member for East Worthing and Shoreham raised the spectre that it may be possible to do that without directly consulting the child. I assure him that I do not believe that it would be possible to do that without direct consultation: that must be done if the child is old enough. It is arguable that direct consultation with a baby would not be especially enlightening, but the principle that prompted the amendment is right. The assumption must be that even relatively young children have a view and that it must be taken into account.

Mr. Hilton Dawson (Lancaster and Wyre): I agree entirely with my hon. Friend. Does she agree that it might be worth examining the case for separate representation of children throughout the proceedings? It is set out that the children will be represented separately at placement order stage and on application, and that they can be represented separately at the adoption order stage. Would it not be in line with her comments and those of other Committee members about the importance of listening to children to provide in the Bill for their right to separate representation throughout the process?

Jacqui Smith: My hon. Friend makes an important point, which I will touch on in a minute. He is right to say that the Bill provides for children to have the right to be party to proceedings on a placement order and for them to be able to be party to proceedings on an adoption order. No doubt we will consider that issue in more detail when we discuss the directly relevant clauses.

Following the points about the importance of agencies taking into account the fact that even relatively young children have a view about the process and about the way in which agencies will be expected to ascertain that directly, the precise procedure will be set out for adoption agencies in regulations and guidance, and for the courts in court rules and guidance. I assure the Committee that the new adoption agencies regulations that we will make to accompany the Bill's implementation will place explicit obligations on agencies to consult the child. I agree with the hon. Member for Meirionnydd Nant Conwy that that involves talking to them face to face.

Mr. Shaw: Does my hon. Friend also agree that in some circumstances direct consultation and hard-and-fast rules might place undue pressure on a child, for example, if the child is in a stable foster placement awaiting a permanent placement. From a child's perspective, the decision may be very difficult, so to make the provision hard and fast, as amendment would, might not always be in the child's best interest.

Jacqui Smith: My hon. Friend makes an important point, which brings us back to the difficult balances that need to be struck in relation to individual children and the necessity of ensuring that professionals acting within regulations and guidelines are nevertheless able to reflect those children's circumstances.

We need to make clear in the adoption agency regulations the explicit obligations on agencies to consult the child, to record the child's views, to ensure that the child's views are considered in the decision making process—for example, by adoption panels—and, where those views are not acted upon, to establish the reasons why not.

Tim Loughton: What does it take away from the Bill to add the few words that I have suggested?

Jacqui Smith: What is important, as the my hon. Friend the Member for Chatham and Aylesford has pointed out, is that it might be to use a variety of ways when consulting the child. We can envisage cases in which some flexibility will be needed about the way in which the child is spoken to and involved in the decision making process. To provide that flexibility within a very clear framework is difficult. I hope that the hon. Gentleman accepts my assurances about other ways in which we can achieve our shared objective.

Liz Blackman (Erewash): In a case involving a child who has a severe disability, consulting the child might be difficult—depending on the degree of the disability. Making the provision hard and fast does not take into account such a scenario.

Jacqui Smith: My hon. Friend makes an important point about the complexity of this situation. That is why it is right that such matters are dealt with in guidance and regulations.

Mr. Llwyd: I was rather expecting the age-old parliamentary word ``otiose'', so the Minister's response is rather disappointing. On the one hand, she is saying there will be one-to-one consultation; on the other, she is saying we are not going to put such a requirement in the Bill. I cannot understand why. Referring to the intervention by the hon. Member for Erewash, if the child has difficulty expressing himself, that will surely be taken into account by the professional who is interviewing the child.

Jacqui Smith: The hon. Gentleman argues against himself: he cannot simultaneously argue that such matters will be taken into consideration by the professional and that the requirement needs to be stated explicitly on the face of the Bill.

Perhaps I am failing, but I am attempting to be helpful by spelling out the extent to which I agree that it is almost inconceivable that one can ascertain a child's views and wishes without talking to them directly. The process does not lend itself to being spelled out on the face of the Bill; instead, we need to set out the framework and the expectations more clearly in our regulations and guidance. That is why as we prepare the new regulations we will carefully consider what we need to do to ensure that the need to consult the child actively and in advance of making decisions is better represented than is the case in existing regulations. We certainly need to make improvements in that respect.

11.30 am

Procedure for adoption agencies will be included in the regulations and guidance. Court rules will provide that a children's guardian must be appointed to represent the child. The guardian's duties will include ascertaining the child's views through direct contact and reporting them to the court. It is good judicial practice—I defer to my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department—to consult the child, if he or she is of sufficient age and understanding, in a sensitive and informal manner so that the judge can directly hear from the child. Clause 1(4)(a) obliges the courts to consider the child's views in reaching a decision. Court guidance will cover the need to explain how the child's views were taken into account in reaching a decision, thus creating a further lever to ensure that those views are ascertained, considered and reported.

I hope that hon. Members accept the importance of setting out in regulation and guidance the ways in which we ascertain children's views and wishes. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Tim Loughton: I started by saying that this was a probing amendment, but I am emboldened to think that it is more important than that by the contribution of the hon. Member for Meirionnydd Nant Conwy and the Minister's inadequate reply to my intervention.

Having bared my personal experiences, I should say that there was no argument about where the dog went when my parents split up. No one spoke to the dog, but it ended up with me. A happy arrangement was brokered and these days all parties get on like a house on fire with their respective families.

The Minister did not give a convincing argument against the wording I propose being added. Accepting the amendment would make my intentions, with which she concurs, more explicit. She referred to regulations and suggested that the Government might examine them in more detail, but we have had no sight of those regulations, no indication of when they might be available, and no idea of the input. We cannot take on face value an assurance that the regulations will be considered and that some improvements might be made to pander to my amendment.

It is inconceivable there will be circumstances in which all the processes and orders can be carried out without someone physically evaluating the wishes and comments of the child, even if that child has severe disabilities. Subsection (4)(a) takes that into account by considering

    ``the light of the child's age and understanding''.

It is a material part of the order that the level of understanding is ascertained through an interview. It is deeply arrogant to suggest that in certain circumstances, however rare, those proceedings can take place without the child's having been sat down for a meaningful conversation at some stage. That is why I can see no downside to amending subsection (4).

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