Adoption and Children Bill

[back to previous text]

Tim Loughton: I agree with the Minister, but she rather misses the point. We do not need simplicity by having one-size-fits-all provisions. My hon. Friend the Member for North Dorset and I are not suggesting that the same time should be given for all the categories of people listed.

Jacqui Smith: Yes he is.

Tim Loughton: He is not. The Bill should allow simplicity of understanding. Without it, delay will be caused by solicitors and lawyers in the courts arguing over the interpretation of the Bill. That is the point that we have consistently been making.

Jacqui Smith: My reading of the amendments tabled by the hon. Member for North Dorset is that he is arguing that the time that the child has to spend with prospective adoptive parents before an application for an adoption order can be made should in all circumstances be 13 weeks. The amendment provides precisely that, in every circumstance, the period of time should be the same.

Mr. Walter: The Minister is correct; I am looking for simplicity by wanting 13 weeks, but that would be a minimum. I would expect that the courts would take account of the other matters when considering whether to make an adoption order. If the court felt that enough time had not elapsed, and I am sure that the adoption agency would have come to the same conclusion, more time would be required. I suggest that there may be circumstances, particularly when dealing with foster parents or step-parents, when a term of less than six months or a year would be more appropriate if we are to avoid delay.

Jacqui Smith: When I have made a little more progress, I shall come to specific exceptional circumstances. However, it is important that we go through in some detail the justification for the different time periods in the Bill. I hope that I shall be able to reassure members of the Committee by doing so.

Amendment No. 25 concerns the minimum period for which the child must have had his home with the prospective adopters before an application to adopt may be made. It applies in cases where the child has been placed through an adoption agency—that is, in agency cases. I am not sure whether Opposition Members are uninformed or whether they had mischievous reasons, but they tried to suggest a distinction between married and unmarried people. However, the real distinction is between agency and non-agency cases and between different sorts of non-agency cases. I shall explain the importance of that later.

The objective of the requirement for a minimum period is to ensure that the child and the prospective adopters have the opportunity to form a relationship such as to justify an application for adoption. Importantly, it would also ensure that the agency had sufficient opportunity to see the applicants with the child, as subsection (7) requires. The amendment would increase the period from the Government proposal of 10 weeks to 13 weeks.

The 13-week figure was included in the draft 1996 Bill. However, responses suggested that it could be cut. Hon. Members have echoed the concerns that have been expressed about the effect that the provision would have, particularly on baby adoptions. Those concerns reflect the fact that the period now runs up to the point of application for the adoption order, rather than the point at which the final adoption is made, as in the 1976 Act. There was concern that babies would be adopted later, despite the fact that speed can be especially important when a child is very young. We therefore took the view that the 13-week period could be cut to 10 weeks. Such a period would still provide sufficient opportunity for a relationship to be formed and for the agency to see the child with the applicants, while going some way towards counteracting any increase in the time before final adoption. That is the position on the time period for all agency placements. Hon. Members will be aware that much of the discussion about placement arrangements has focused on agency cases. We are talking about a large number of adoption circumstances.

Amendments Nos. 26, 27 and 28 concern the time periods that will apply in non-agency cases, and I hope that hon. Members will recognise that important distinction.

Mr. Djanogly: Is not the end result of the measures in the Bill that people are forced down the agency route? Will we not put more pressure on social workers and the court system, because people will turn to them for speedy determinations?

Jacqui Smith: This is not about forcing anyone to do anything. I shall come to why important differences in agency placements make it reasonable to apply a shorter period to them than to non-agency placements.

In something as significant as adoption, it is in the interests of the child's welfare to ensure that the child and applicant have had a proper opportunity to establish a relationship such as to justify the making of an application to adopt. That is particularly important in non-agency cases, in which there are none of the safeguards of placement through an adoption agency. The longer period that applies to non-agency cases will, therefore, be in the interests of the child's welfare.

For placements through an adoption agency, the agency adoption panel will have approved adoption as being in the child's best interests after thoroughly examining the issue. The prospective adopters will have been rigorously assessed, and the match between the child and the adopters will have been carefully considered. None of those safeguards are in place in non-agency cases. That is why the difference between agency and non-agency placements is important.

Mr. Walter: The Minister may be moving on to this, but let me give an example of what might be regarded as an agency case: the prospective adoptive parents might be the child's foster parents. They would not qualify for the 10-week period under the Bill; they would have to wait six months. There is surely a discrepancy in that regard.

Jacqui Smith: I thank the hon. Gentleman for that, but he is mistaken. Foster parents who want to adopt will be able to take two routes: a non-agency route, with the time scales that I am about to discuss, and an agency route, which I have outlined. [Interruption.] That is most certainly what the Bill says, and that is the intention. It is open to local authority foster carers to take an agency route.

Amendment No. 26 concerns the residence period for step-parents. The 1996 draft Bill proposed introducing a three-year residence requirement for step-parents. However, given that such adoptions involve one of the child's birth parents, the residence period need not be as long as that for non-agency stranger adoptions. That is why the Bill provides for the period to be six months. Step-parent adoption involves severing the legal relationship between the child, the other birth parent and the wider circle of relations. There should be a route whereby step-parents can acquire legal parental responsibility for a child of their spouse without disrupting wider legal relationships. That is why clause 107 provides a new route to enable a step-parent to acquire parental responsibility for the child of their spouse by agreement between the step-parent and all those with parental responsibility or by order of the court.

The amendments also raise the issue of local authority foster carers who take a non-agency route. The clause states that they can apply to adopt a child who has been with them for 12 months, whether the local authority approves or not. As I tried to spell out earlier, it would be open to them to apply earlier as an agency case, with the agreement of the local authority. That is similar to the position in the 1976 Act, under which an adoption order may not be made in non-agency cases—including those involving local authority foster carers—unless the child has been with the adopters for 12 months. As with all the residence requirements in the Bill, the 12-month period now runs up to the point of application, not the point at which an order may be made. That is a more sensible approach, given the variable length of court proceedings. We have shortened the time for foster carers that was proposed in the 1996 draft Bill, which provided that they could not begin to give notice of their intention to adopt without the local authority's consent unless the child had been with them for three years.

Amendment No. 27 would allow foster carers to apply to adopt a child without the approval of the local authority when the child had been with them for 13 weeks. That would be a substantial change from the position in current legislation, in which, in foster carer non-agency cases, an adoption order may not be made until the child has made his home with at least one of the applicants for 12 months. That change could risk creating a deterrent to families that use voluntary accommodation under section 20 of the Children Act 1989, as they might perceive that a foster carer could apply to adopt their child after 13 weeks.

3 pm

We also need to consider the interests of the child. For something as significant as adoption, it is important that the child and applicant have a proper opportunity to establish a relationship that justifies the making of an application to adopt. That is especially important in non-agency cases, as I suggested, when none of the safeguards of placement through an adoption agency apply, and when the child has not been matched or placed with the foster carers with a view to adoption.

Local authority foster parents will be able to seek formal approval from the local authority as prospective adopters for children for whom they are caring. Clause 19 provides that the authority may leave the child with them if they are approved as prospective adopters. That counts as an agency placement under the placement provisions. If a local authority does not approve them as prospective adopters or agree to them adopting, the foster carers can still seek to adopt a child for whom they are caring by independently giving notice of their intention to apply to adopt the child as a non-agency case, providing that the child has been with them for a year. The one-year period relates to such cases.

A point was made about specific circumstances. If the child has been with the foster carers for less than a year but they still want to apply to adopt without the authority's agreement, they can seek the leave of the court to make an earlier application under clause 41(6).

Amendment No. 28 deals with other non-agency applications, which could include those when private foster carers or relatives proposed to adopt the child. The Bill provides that the application may not be made unless the child has lived with the prospective adopters for three of the previous five years. That was the approach suggested in the 1996 draft Bill, and it was generally supported in the consultation on this Bill. It is broadly consistent with the provisions in the Children Act 1989 that govern applications for residence orders, under which anyone with whom the child has lived for three of the previous five years is entitled to apply automatically.

The amendment would cut the residence order to 13 weeks, even though an adoption order may currently not be made in non-relative or non-agency cases unless the child has been with the adopters for a year. The Government cannot accept the amendment for broadly the reasons that I have given, which were about what was in the child's interest in non-agency cases.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 29 November 2001