Special Standing Committee
Tuesday 4 December 2001
[Mrs. Marion Roe in the Chair]
The Chairman: At its previous sitting, the Committee finished debating clause 52. Under the programme motion, we come next to clause 94.
Proceedings for offences
Tim Loughton (East Worthing and Shoreham): I beg to move amendment No. 131, in page 51, line 6, leave out subsection (1).
Welcome back, Mrs. Roe. As you said, we have finished clause 52—at least in parliamentary terminology. The Committee's debate on clauses 49 and 52 was somewhat curtailed—it lasted for one sentence before you brought the knife down, such is the nature of the programming constriction. About one fifth of the Bill has not been debated, yet in parliamentary terminology those clauses have been scrutinised. That is a great pity. On Thursday, we missed debating adoption by one person, revocation orders and other important matters.
We look forward this morning to being wowed by the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Doncaster, Central, (Ms Winterton), who has adorned our proceedings so far with her presence but not her words. It is worth pointing out that, so far, not a single Government amendment has been tabled. Never before have I served on a Committee during which the Government have not had to admit that they were not entirely perfect and that amendments were needed. The Minister of State, Department of Health, the hon. Member for Redditch (Jacqui Smith), ably if not verbally assisted by the Parliamentary Secretary, obviously scored a parliamentary coup—but we have many weeks yet to go.
Amendment No. 131 would simply strike out subsection (1), which states:
''Proceedings for an offence by virtue of section 9 or 56 may not, without the written consent of the Attorney General, be taken by any person other than the registration authority.''
It is slightly difficult, Mrs. Roe, to discuss clause 94 without mentioning clause 9, because those two clauses are contingent on each other. However, the programme motion means that we shall not be able to discuss clause 9 until late next week at the earliest. I remind the Committee that it deals with regulations on the functions of adoption agencies and local authorities and what penalties can be brought in if those regulations are broken. Clause 56, which we may not discuss until the new year, deals with contraventions of clauses 54 and 55, which deal with the thorny subject of the disclosure of protected information.
Clause 94 is about the proceedings that can be taken against various people committing offences that, at least for us, are not yet offences. We shall have to put ourselves in the hypothetical situation of determining that they will be offences if and when we come to those clauses. We are dealing with virtual reality: we shall be determining how proceedings can proceed without knowing whether proceedings against those proceedings can proceed. I think that the Committee has followed my thinking so far, even if the logic of the numbering of the clauses leaves a little to be desired.
Mr. Julian Brazier (Canterbury): One of the key points, which I think my hon. Friend may have missed, is that the background to the amendment is opposition to the minimal penalty set out in clause 9, which we will not debate until later.
Tim Loughton: That is a good point, to which I am sure we will return. The explanatory notes for clause 9, to which clause 94 and the amendment are linked, set the maximum penalty for an infringement of the regulations at level 5, which is a fine of £5,000. That is very important. Interested parties have expressed the view and Conservative Members are concerned that such penalties are not sufficient. We are considering penalties that have not been agreed by the Committee and which may or may not be debated later, yet clause 94 sets down exactly how the proceedings that will lead to the imposition of those penalties will happen.
The amendment is designed to find out why the Bill restricts proceedings so that no one except the registration authority can bring them without written consent from the Attorney-General. Many individuals, adoption support groups or family groups may be greatly aggrieved about the activities of an adoption agency or a local authority that may or may not have broken regulations, or passed on information that it should not have passed on, or failed to pass on information that it should have. Why private individuals or groups of interested parties should not be able to initiate action themselves is a mystery.
This is a probing amendment to ask the Parliamentary Secretary, on her debut performance in the Committee, why the terms of the clause are so limiting. Why will all the power be vested in the registration authority established by the Care Standards Act 2000? That legislation has only just been enacted and we are not entirely sure how it will work in many cases. No precedents have been established so far and a lot of controversy surrounds that Act. Perhaps the Parliamentary Secretary can enlighten the Committee with more detail of how proceedings by the registration authority will work in practice, because there is no history attached to that authority that we can examine to find that out.
Why does anybody else wishing to bring an action need the written consent of the Attorney-General? That suggests that the Attorney-General will give leave to private individuals or groups to initiate action in only a small minority of cases. Even if those individuals who are closest to the subjects of the adoption procedures, such as a birth relative or an adoptive parent, have a serious grievance against the way an adoption agency has acted on disclosure or non-disclosure of information, or some other breach of the regulations on support services, they cannot initiate proceedings relating to that grievance without special permission of the Attorney-General.
We need to be assured also that the fledgling registration authority, which is largely untested, is wholly independent. It must act independently of the vested interests of adoption agencies, local authorities and social services departments, but in the early days it might be more inclined to give the benefit of the doubt to an adoption agency than to initiate proceedings.
We are working largely in the dark. We need to be fully assured that if the provisions of clauses 54 and 55 are abused as set out in clause 56 and if the regulations made under clause 9 are broken, action will be taken. For example, what if an adoption agency fails to make proper checks about the home of a pre-adopted child that had been taken into care, which resulted in harm coming to that child? The birth parent, who might have given up that child with consent, would be troubled if harm came to that child because the local authority had not carried out proper checks.
In the majority of cases, birth parents will be told that the registration authority believes that it does not have a case to answer, and they would be stymied; but in a small minority of cases, the Attorney-General might be minded to allow them to bring proceedings. When does the Parliamentary Secretary expect the Attorney-General to be minded to allow others to initiate such proceedings? What if an adoption agency had left it far too long before removing a child from a threatening situation, or the child had been the subject of a long-running placement order and still was not properly settled? Worse still, what if a child had been the subject of multiple placements or multiple fosterings? I mentioned last week evidence from an expert witnesses about a child who had been moved an incredible 256 times. I hope that the registration authority would pick up such cases early, but it may let go on less extreme cases.
Mr. Brazier: My hon. Friend has mentioned before the dreadful case in his constituency. Were that case to have been fought by an adoption agency—one must not prejudice sub judice proceedings—it is rather insulting to think that a level 5 fine could be imposed. We shall come to that later, but the idea that the case could not be prosecuted without the permission of the Attorney-General should the National Care Standards Commission choose not to prosecute, which would be the effect of the amendment not being accepted, is surely grossly unfair to the memory of that child.
Tim Loughton: I am grateful to my hon. Friend for reminding me of my constituency interest. On Second Reading, I alluded to the case of John Smith, the four-year-old who died last year at the hands of two prospective adoptive parents. They have been convicted and a derisory sentence of eight years each has been handed down. A host of problems ensued because of the joint enterprise restrictions, which I took up with the Minister, but that is a different subject. Many would say that those two got off lightly, but they have had the cheek to appeal, so I shall not go into it too closely.
In that case, no one outside the two prospective adopted parents has been prosecuted or penalised. A report has been published that easily drew to light all sorts of information about which the Brighton and Hove social services department was entirely oblivious. That information included the fact that the prospective adoptive father had been married twice before, and interviews with his two former wives raised concerns about threats of violence towards children and an episode with a two-year-old, as well as the fact that he had changed his name and that his wife had five criminal convictions. None of that had been brought to light by the local authority's social services department, which was responsible for placing the child for adoption.
In such a case, there are strong grounds for an aggrieved party, who could certainly be identified as the child's birth parent, to initiate proceedings. In my example, the child's birth parent sat through almost all the sittings of the trial and heard about the ghastly series of injuries that had been inflicted on the child. Fifty-four marks were identified on the poor child's body after he succumbed to his injuries, including adult bite marks and assorted other unspeakable wounds. The mother spoke out after the trial. Unsurprisingly, she was greatly distressed by what she had heard and what had gone on, however I do not believe that the woman has initiated any proceedings.
Only recently have we seen the independent report produced after the trial, which commented on the role of the Brighton and Hove social services department, the Worthing priority care trust in West Sussex, which is responsible for health visitors, general practitioners and others who were involved. I do not cast blame or make assertions as to where the system went wrong. The report rightly made several recommendations. The Brighton and Hove social services department and the Worthing priority care trust have made changes to their procedures, so we can hope that the problem will not happen again, but no one from the social services department has lost their job.
If the birth mother of the four-year-old wanted to initiate proceedings, she would have to rely on the registration authority to say that someone had breached the regulations, presumably under clause 9 in this case because there would have been no disclosure of information. If the authority declined to say that, she would have to ask the Attorney-General for an exceptional order for proceedings to be initiated. I do not think that she will do so. Even if she were minded to do so under the law as it stands, she would certainly not do so under the Bill, because she would have to go through an awful lot of hoops to get satisfaction.
That is a classic example of a close birth relative who feels that her son, whom she gave up for fostering and adoption, has not been properly looked after by the authorities to which he was entrusted. How does the Parliamentary Secretary think that clause 94(1) would improve the system of justice for individuals in the example that I have given, for whom the system patently failed? In that example, a child paid the ultimate price.
I apologise for taking so long to set out the principle behind the amendment, but it is important. My topical example goes to the heart of why we have grave doubts about whether the restrictions in subsection (1) would be for the best. I ask the Parliamentary Secretary to give some practical details of how she thinks that the system would work better without the changes that we suggest.