|Adoption and Children Bill
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): An underlying theme of the Bill is uniformity of best practice. A problem with existing adoption law is that the level of service is determined by where one lives. It is like postcode prescribing. One might have a good service, a poor service, or even no service at all, so it is not a bad thing to cover these issues in the Bill. We heard earlier—and will hear again, I am sure—that it is not good to defer too much to secondary legislation and that this Committee should deal with such concerns.
The clause states clearly that ``due consideration'' must be given; it is only right that that should be so. As a person whose first language is Welsh, I welcome the fact that linguistic background has been included. It is an important issue in many parts of Wales. Many other languages are spoken in the UK, and they can be important from an early age.
The hon. Member for North Dorset gave the example of a young child as a reason for opposing the subsection. The hon. Member for Erewash more or less stole the Minister's thunder. Clause 1(2) states the paramountcy principle, with which we all agree. We then go on to subsection (4)(d), which clearly lists factors such as
Thus, the matter of age is dealt with at that point, possibly with a bit more emphasis on it than when we come to subsection (5). It may be that the hon. Gentleman's genuine misgivings are ill founded.
I am not one of those people who regularly signs up to a politically correct agenda, whatever that is. We know of examples of bad practice; that is why we are debating improvements in the Bill. However, it is important to get as much as we can in the Bill, because that will inform good practice. The one thing that we in the Committee want to ensure is that our legacy promotes good practice in the future. On that basis, I strongly disapprove of the amendment. The argument for it has been sincere and well presented, but it is preferable to refer to such matters in specie in the Bill rather than once again allowing a situation in which good practice will be adopted in some places but not in others.
Mr. Djanogly: I do not want to enter into the politically correct debate, which has gone backwards and forwards several times. I accept that there are circumstances in which faith or language, as the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said, may be relevant factors in determining how someone should be placed. A three-year-old could have been brought up in an extremely religious environment. Whether or not the parents had abused the child and, in effect, prepared the way for adoption does not affect whether the child is still observant of its faith. I accept that it can be a relevant issue, albeit in a minority of circumstances in this day and age.
The key point made by my hon. Friend the Member for East Worthing and Shoreham was that it is a question of speed. The phrase that he used was ``facilitating, not excluding adoption''. The problem is that the clauses could be used to slow down the process of adoption, which we want to see speeded up. Might it not be a wise approach to say that, if a child's background is such that it should be a relevant consideration and they have been placed on the national register, the ethnic aspects that should be taken into consideration will have been advertised? If someone does not reply to the advertisement within a set period, an effort has been made, but has failed. Perhaps we should then move on and the question whether this is an important issue should be considered differently. If an effort has been made to advertise the ethnicity, but a placement has still not become available within a set time, ethnicity should become a less important issue. Getting the adoption moving should then become the more important issue.
My only other point relates to the drafting. Clause 1(4) and (5) appear to say much the same thing. I note that the ``must have regard'' provision in subsection (4) applies to both courts and adoption agencies, whereas subsection (5) applies only to adoption agencies. On the basis of subsection (4), I do not see a need for subsection (5), but as they are both in the Bill, why cannot the wording of the two be made compatible?
The Minister of State, Department of Health (Jacqui Smith): We have returned this afternoon to a lively debate, which is getting to the heart of some of the important issues relating to the legislation. However, the debate on amendments Nos. 1 and 19 has been less about what hon. Members want in the legislation and more about what they want to remove. I have some problems with that, which I shall come to later. The arguments on amendment No. 24 are more complicated, but I shall address those, too.
The argument for amendments Nos. 1 and 19 is that the Bill should not mention a need for the adoption agency to give due consideration to religious persuasion, racial origin and cultural and—if we understand the amendments' intention correctly—linguistic background. That would be a backward step in terms of the approach that we want and the balance of issues that should be considered, with certain provisos about paramountcy and the weight that they are given.
It is important that subsections (3) and (5) be read together. That is their legal effect. The obligation in subsection (3) on adoption agencies to have regard to the potentially harmful effects of delay is an overarching provision that applies across all decisions relating to the adoption of a child, including the placement decision.
I spoke previously about some of the other action that the Government are taking, alongside the Bill's provisions, to ensure that delay is minimised. Those aspects show how important the Government consider the need to minimise delay. I shall return to that and to how else we can ensure that subsection (5) does not lead to disproportionate delay.
It is useful to refer back to subsection (2), which states:
That is the pre-eminent subsection of clause 1. It overrides all others, which addresses some of the concerns expressed by hon. Members. The child's welfare is paramount, so if the other checklist factors outweigh those in subsection (5), welfare comes to the fore. In other words, subsection (2) makes it clear that other considerations should be outweighed, so the balance is decided on the basis of the welfare of the child. If the paramountcy principle is the most important and overriding one in the clause, it is crucial to maintain it.
Mr. Robert Walter (North Dorset): Will the Minister confirm that she used the term ``checklist'' intentionally? I used it in my speech and was surprised that she used it. Is she suggesting that adoption agencies use a checklist of factors?
Jacqui Smith: No. It may be worth explaining, as the hon. Member for East Worthing and Shoreham said earlier, that subsection (4) has become known colloquially as the welfare checklist. If the hon. Member for North Dorset is suggesting that adoption agencies should avoid the tick box or checklist approach, I wholeheartedly agree with him and did not want to imply anything different.
Tim Loughton: As she says, the term ``checklist'' is a colloquialism, but it is a term used on page 8 of the Government's explanatory notes. What other parts of those notes are colloquial rather than what was intended?
Jacqui Smith: I do not think that I said that it was colloquial or necessarily wrong. I said that if the hon. Member for North Dorset was concerned about the implications of the term, that was not what I or the Government's explanatory notes intended to imply.
To continue my point about the paramountcy principle in subsection (2), subsection (5) cannot override that principle or the obligation to minimise delay. Adoption agencies will not be able to wait a long time to find a perfect match, which the hon. Member for Huntingdon (Mr. Djanogly) feared. Subsection (5) imposes a duty on the agency, in making a placement decision, to consider the listed factors—
The hon. Member for North Dorset suggested that the phrasing of the clause and current common adoption practice would preclude a child being adopted transracially. That is not true: it is neither the effect nor the intention of the clause. I shall explain later why the wording is helpful.
The hon. Member for North Dorset also asked whether age should be relevant to consideration of culture, religion and linguistic background. Of course a child's age may determine the extent to which due consideration is given to the background. That is part of the complexity of the position and it explains why clause 1(5) refers to ``due consideration''. In taking the child's circumstances into account, different weights may be attached to the listed factors. My hon. Friend the Member for Erewash made an important point, which is that they still have to be balanced with welfare under the rest of clause 1 and, dare I say it again, the checklist in subsection (4). We are talking about the balance achieved by the whole of clause 1. However, consideration of such factors must not occur at the expense of harmful delay. That is another reason why subsection (5) refers to ``due consideration''; it relates to the need to ensure that there is not undue delay.
The hon. Member for Romsey (Sandra Gidley) asked about the definition of ``due consideration'' and how we would ensure that local authorities did not use clause 1(5) as a means of delay. In law, due consideration is a subjective test and it will depend on circumstances. For example, more weight will be given to factors identified when the child is older. Our guidance makes the Government's position very clear, and it might be worth reading out the relevant section. I assure the Committee that circular LAC(98)20 ``Adoption—achieving the right balance'' contains statutory guidance for local authorities. It makes clear the harmful effects of delay, especially in such circumstances, and says:
That guidance is important in setting the context in which ``due consideration'' to those factors should be given.
The guidance is further backed up by the national adoption standards, which set our benchmark time scales to help agencies weigh up the question of matching versus delay, as I spelled out earlier. In particular, under standard A.8:
I hope that that overcomes some of the understandable concerns that hon. Members have expressed about the extent to which the provision might lead to delay.
I can also give a more positive reason for the inclusion of clause 1(5). It was called for during the consultation on the 1996 Bill, when there were suggestions that we needed to refer explicitly to the issues that we are considering, such as linguistic, religious and racial background, because in many cases they can have long-lasting implications for the child, including in later life and in relation to their identity and their feelings about their background. My hon. Friends the Members for Chatham and Aylesford and for Lancaster and Wyre outlined that.
Race, for example, has lasting implications for children's views of themselves and their background. It will continue to be significant throughout the life of even a relatively small child. The hon. Member for Meirionnydd Nant Conwy—I hope that the Committee notices that I use his full title, unlike some hon. Members—noted that language might also be significant for some children.
I have outlined the balance that is achieved in clause 1—the paramountcy of the welfare of the child is always the determining factor in decisions. I have also spelt out the statutory guidance that makes clear to local authorities the need to minimise delays for matching decisions, and I have explained how we intend to promote that intention through our national standards, so I hope that it is clear that we do not believe that the inclusion of clause 1(5) will be detrimental to children; it may positively allow their backgrounds to be represented in the difficult decisions that adoption involves. For those reasons, I hope that Opposition Members will feel able to withdraw their amendment.
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