Adoption and Children Bill

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The Chairman: With this it will be convenient to take new clause 2—Considerations applying to the exercise of powers—

    `(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child other than in proceedings under Part IV of the Children Act 1989.

    (2) The child's welfare throughout his life shall be the paramount consideration.

    (3) At all times when any question with respect to the adoption of a child arises, the court or adoption agency shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

    (4) The court or adoption agency shall have regard in particular to—

    (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

    (b) his physical, emotional and educational needs;

    (c) the likely effect on him (throughout his life) of any changes in his circumstances;

    (d) his age, sex, background and any characteristics of his which the court considers relevant;

    (e) any harm which he has suffered or is at risk of suffering;

    (f) the relationship which the child has with relatives (including mother, father, siblings or half-siblings) and any other person in relation to whom the court or adoption agency considers the relationship (legal or otherwise) to be relevant, including:

    (i) the likelihood of any such relationship continuing and the value to the child of its doing so,

    (ii) the capability of any such person to meet the child's needs,

    (iii) the wishes and feelings of any such person regarding the child.

    (g) the range of powers available under this Act and under the Children Act 1989 and the principle that the court shall not make any order unless it considers that making the order would be better for the child than not doing so.

    (5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background, subject to the proviso that such consideration shall be secondary to the matters to be considered in subsections (2) and (3).

    (6) In this section, ``coming to a decision relating to the adoption of a child'' in relation to a court includes—

    (a) coming to a decision in any proceedings other than those under Part IV of the Children Act 1989 where the orders that might be made by the court include an adoption order or placement order or the revocation of a placement order or an order dispensing with parental consent,

    (b) coming to a decision about granting leave in respect of any action which may be taken by an adoption agency or individual under this Act other than the initiation of proceedings in any court.'.

Jacqui Smith: We have rightly had a lengthy debate on amendments to clause 1, because it sets out the heart and overarching provisions of the Bill. As detailed in our White Paper ``Adoption: A New Approach'', the Government believe that children should come first in adoption and that their interests and welfare should be the paramount consideration. Clause 1 enshrines that principle in law and contains key overarching provisions that apply to the rest of the adoption provisions of the Bill. Whenever a decision is taken on the adoption of a child under those provisions, courts and adoption agencies will be bound by the obligations set out in clause 1. It makes the child's welfare the paramount consideration for a court or adoption agency and brings adoption legislation into line with the Children Act 1989. It was included in the 1996 draft Bill and has been widely welcomed.

One important difference from the 1989 Act is that the court or agency must consider the child's welfare throughout his life. That recognises the lifelong impact of adoption. We debated the issue of delay, and the Government are determined to bear down on harmful delays in the process, which is why subsection (3) obliges courts and adoption agencies to bear in mind at all times that, in general, delays in making a decision is likely to prejudice the child's welfare. In a manner similar to section 1 of the Children Act, subsection (4) provides a checklist—I use that word again, but perhaps we need to think about our phraseology—of issues that courts and agencies must consider in determining the child's welfare. Although similar to the list in the Children Act, the checklist includes factors that the Government believe should be taken into account in arriving at any decision on the adoption of a child.

We will come to the question of the relationship between the provisions in the Children Act and the proposals in the Bill when we debate new clause 2. Would it be appropriate, Mrs. Roe, for me to deal with issues relating to new clause 2 now?

The Chairman: We are considering new clause 2, so if the Minister wants to mention those issues, this is the time to do so.

Tim Loughton: The Minister is thinking, ``I don't know what I'm going to say.''

Jacqui Smith: The hon. Gentleman is concerned that I might undermine what will clearly be a wonderful speech from him in favour of new clause 2. Nevertheless, Mrs. Roe, I shall follow your advice and consider it in a moment.

The checklist in clause 1 is specially tailored to adoption. The matters to which the court or agency must have regard include the child's wishes and feelings according to their age and understanding—we have had a significant debate on that issue today—their sex, background, age, particular needs and any other characteristics that the court or agency consider relevant. They must also take account of adoption's impact on the child; the impact of leaving their family and becoming a member of a new one, which is of particular importance in considering the Adoption and Children Bill; any harm that the child has suffered or is at risk of suffering; the child's relationship with their relatives or any other person that the court or agency considers relevant; the prospects of that relationship continuing and its benefits to the child; the wishes and feelings of relatives or relevant persons; and the ability of such persons to provide the child with a secure home and otherwise to meet their needs.

The clause makes the child's welfare the paramount consideration in all decisions, including whether to dispense with the birth parents' consent to adoption of their child; I suspect that we will be considering that issue in more detail when we reach clause 50. Subsection (5), which we debated in the last half an hour or so, provides that in placing a child for adoption, agencies must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background. We have had a good debate on the reasons for that provision and I do not intend to add to it now.

In giving due consideration to those factors, agencies will of course be bound by the obligation under subsection (3) to bear in mind the prejudicial impact of delay on the child's welfare and, in that regard, they will have to strike a balance. The clause further provides that the court may make an order—such as an adoption or placement order—only if it considers that to do so would be better for the child than not to do so. The court must consider all its powers under the Bill and under the Children Act, including its alternative courses of action. Those points follow the principle set out in the Children Act, and ensure detailed assessment of the alternatives that should be taken into account in considering the child's welfare.

As we discovered during the very useful debate on the amendments, clause 1 deals with many important issues and, as I suggested earlier, is at the heart of our approach to this major reform of adoption. In setting out in clause 1 the paramountcy of the child's welfare and other issues, we believe that we have achieved the right balance in relation to the difficult decisions that professionals and courts have to make about the child's placement.

5.45 pm

I want to explain why we oppose new clause 2, which, although I have not had the privilege of hearing the hon. Member for East Worthing and Shoreham explain why it would be a good thing, seems to seek to replace clause 1 with another version that draws heavily on the wording of section 1 of the Children Act. Clause 1 is modelled on section 1 of the Children Act in order to achieve our objectives of broadly aligning the principles of the legislation. The proposal has been specifically tailored for adoption and applies whenever a court or agency is coming to any decision about the adoption of a child.

In seeking directly to follow the Children Act, the new clause would undo some of those important changes. Moreover, it is inappropriately structured. The reason for the difference in our approach is that section 1 of the Children Act applies only to the courts, whereas much of clause 1 also applies to adoption agencies. The new clause does not take that into account effectively. Subsection (4) applies both to courts and adoption agencies, whereas the Children Act checklist applies only to courts.

The new clause mixes references to the duties on courts and adoption agencies and misses the target in several respects. For example, under proposed new subsection (4)(d), the adoption agency would no longer have to consider the child's age, sex, background and other relevant considerations. That cannot be right. The change would narrow the range of needs that the court or agency has to consider. The formulation in clause 1 was intended to allow agencies and courts to focus on any of the particular needs of the child, whatever their nature; for example, their religious, linguistic or cultural needs. In contrast, proposed new paragraph (c) is wide and unspecific in referring to any change in circumstances. Clause 1 applies to a decision on the adoption of a child, hence the wording in subsection (4)(c), which focuses the court and agency on the lifelong effect of adoption.

Proposed new subsection (4)(f) gives a limited definition of relatives that is unnecessary, as the Bill already includes siblings and half-siblings. It also suggests that subsection (4)(f)(ii) be shortened to remove references to considering relatives' willingness, as well as their ability,

    ``to provide the child with a secure environment in which the child can develop''.

We included those words in recognition of the special importance in adoption cases of considering the child's needs for permanence, security and stability, and not only whether their general needs can be met. The parent's willingness and ability to provide such an environment is likely to be a central point in cases where the court is considering dispensing with parental consent. That is another reason why subsection (4)(f)(ii) obliges that it be given explicit consideration.

Finally, new subsection (4)(g) is in the wrong place. It does not belong in the checklist, because it concerns the court's powers, not the child's welfare, and it is not relevant to adoption agencies in so far as it relates to the making of an order. That is why clause 1 locates the matter separately in subsection (6).

I await with interest the hon. Gentleman's explanation of the objectives of new clause 2. However, I would argue that the right approach to take in aligning the legislation is not simply to use an identical form of words to the Children Act, but to ensure that the Bill applies the principles and general philosophy that underpin the Act in a manner that reflects the special and different nature of adoption. That is the purpose of clause 1, which is why I ask that it stand part of the Bill and that the Committee rejects new clause 2.

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