Adoption and Children Bill

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Jacqui Smith: To respond to the hon. Lady's last point first, providing for the care order and placement order to run in parallel could lead to legal confusion because, for example, they are subject to different rules for discharge and revocation, for removing the child, and for contact with family members and others. We have taken the simplest approach in line with the principle that children should be subject to the fewest number of orders to provide them with the necessary protection.

Sandra Gidley: One of the themes running through our discussion is that of trying to make the Bill mirror the Children Act as closely as possible, so what is the reason for having different discharge rules and regulations?

Jacqui Smith: I shall come to those points later.

The amendment would require the court to make a care order whenever it made a placement order, unless the child was already subject to a care order. Under clause 28, the care order would be instantly suspended for the duration of the placement order, but if the placement order were revoked, the care order would automatically revive, placing the child in the care of the local authority. The current provisions provide the court with the flexibility to make the most appropriate arrangements on the discharge of a placement order, taking account of its full range of powers. Amendment No. 38, as the hon. Lady said, provides that the making of a placement order does not suspend any pre-existing care order.

To come to the important point about protecting the child, the Government believe that the amendment is unnecessary. The placement order provides the local authority with all the powers it needs: it has parental responsibility for the child and, as with care orders, it may, if necessary, restrict the parents' ability to exercise their parental responsibility. Under clause 33, no one other than the authority may remove the child from the placement unless that is done under a specific legal power or the child is arrested. As placed children will be looked-after children, the authority will be under the same general duties set out in section 22 of the Children Act to safeguard and promote the child's welfare, appropriately modified for adoption this is the important point through regulations made under clause 51. If a placement order were revoked, any pre-existing care order would automatically revive, so the child would continue to be protected.

The hon. Lady asked why the placement order is separate from the care order and the implication of her question was why not just use a care order? The care order is not specific. The placement order is intended to ensure that when placement for adoption is planned and parents have not consented, there is a court decision specifically on that matter. That is one way in which it is specifically related to the needs of adoption. The other issue, as the hon. Lady rightly said and as I have suggested, is that modification will be necessary through regulations made under clause 51.

The hon. Lady asked why there are different discharge arrangements, and we will come to that when we consider clause 23. However, the limits on discharge for placement orders allow the local authority time—12 months—in which to find an adoptive placement if the court has decided that the child should be placed. I hope that I have reassured the hon. Lady that distinctively different provisions and considerations are necessary for placement orders.

11 am

Mr. Dawson: In circumstances where the threshold conditions have been proved, would not the arrangement that my hon. Friend describes leave a child in an unfortunate limbo if a placement proves impossible to find and they do not have the legal backing of a care order?

Jacqui Smith: There are three possible scenarios. First, a care order could already be running; if so, the care order would come back into operation if the placement order were revoked. Secondly, a local authority could apply simultaneously for a placement order and a care order. Thirdly, an application could be made to revoke a placement order, in which case the local authority would know as much and could apply for a care order.

Because there are different adoption circumstances, it is necessary to make separate provision through placement orders. So far as running both types of order simultaneously is concerned, we need, as I have said, to limit the number of orders and the complexity of the system.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): The hon. Member for Lancaster and Wyre makes a very important point. Where the placement order breaks down—the third option to which the Minister referred—there is an obvious and immediate need for a care order, but what about the child's welfare during the gap between the cessation of the placement order and the application for a care order? What happens if the local authority does not act quickly enough? There is a potential limbo, which is the valid point that the hon. Gentleman was addressing.

Jacqui Smith: It is a valid point, but I have given a valid response. If the local authority was concerned about that problem at the time of application, it could apply for both a placement order and a care order—[Interruption.]

The Chairman: Order. If the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) wants to intervene, he must do so in the appropriate manner.

Jacqui Smith: As I was saying, the local authority could apply for a placement order and a care order at the same time. In effect, the care order would not operate while the placement order was in force, but would spring into life if the placement order were revoked. Alternatively, because the local authority would be aware of an application to revoke the placement order, it could act quickly to ensure that the care order was in place.

Mr. Llwyd: In a perfect world, the Minister is right.

Sandra Gidley: I still feel that the provision is unnecessarily complex and will give rise to difficulties in practice. However, it is not worth pressing the matter to a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 96, in page 14, line 6, after `with', insert

    `and every effort has been made to inform each parent or guardian or other persons holding parental responsibility.'.

In the true tradition of probing, this is another probing amendment. It deals with consultation on placement orders and its purpose is to plug any potential loopholes and ensure that everyone is satisfied that they have had ample opportunity to make their representations on the process and to be kept informed about the stage that it has reached and what is still to come.

If the court decides to go ahead with a making a placement order regardless of the consent of the parent or guardian—I am still keen to get the Minister's clarification regarding other persons with parental responsibility—is that consent, in effect, overruled by default if the parent or guardian has not appeared on the scene to make a rejection of consent order? The Bill should ensure that the process cannot proceed by default because for some reason the parent or guardian was not traced. Should the consent of both parents or both guardians be obtained? A birth father—more likely than a birth mother—may for various reasons have disappeared from the scene, leading to the circumstances that made an adoption necessary in the first place.

It should be incumbent on the court to ensure that each parent or person with parental responsibility has been informed about the process that is taking place and the stage that it has reached; otherwise, the whole procedure could take place in the ignorance of certain key individuals. I am sure that that would happen in only a minority of cases, but we are trying to plug the loophole so that nobody can say that they were left in the dark and that had they been properly informed, their views would have been different, or they could have made representations to the court on why their consent should not be dispensed with.

The issue requires probing and clarification. Which of the parents or parental responsibility candidates need to have their consent dispensed with, and to what lengths will the court go before it makes that decision?

Jacqui Smith: I hope to be able to reassure and educate the hon. Gentleman. The amendment seems to be designed to ensure that the courts cannot make a placement order unless every effort has been made to notify the parents and everyone else with parental responsibility. The arrangements for notification are set out in clause 126, which provides that the court rules must require certain persons to be notified of the date and place where the application will be heard, and of the fact that unless the person wishes or the court requires it, the person need not attend. The people who have to be notified are those whose consent is needed for the making of the placement order, in so far as they can be found.

In the light of the Opposition's confusion on Tuesday, it might be useful to remind them who those people are. Under the Bill, the list of people whose consent is required for the making of a placement order or an adoption order follows the model of the Adoption Act 1976. First are the natural parents of the child who have parental responsibility. Under the Children Act 1989, mothers automatically have parental responsibility, as do married fathers; unmarried fathers can acquire parental responsibility either by marrying the mother of their child or, under section 4 of the Act, by agreement with the mother or by a court order. Under clause 106 of the Bill, they will also acquire parental responsibility automatically if they jointly register the birth with the mother.

The second person whose consent is required is any guardian of the child. That means a guardian who may be appointed under section 5 of the 1989 Act to act in the event of the parent's death. I think that that covers the point made by the hon. Member for North-West Norfolk (Mr. Bellingham) on Tuesday. Once the Bill is enacted, special guardians will also be included.

Those individuals are the only people who can consent to the adoption of a child under the 1976 Act. Under the Bill, they are the people who can consent to a placement order or an adoption order. Other people may have parental responsibility—as we have discussed, it is possible for parental responsibility to be shared—but it would not be appropriate for those others to consent to adoption or a placement order.

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