Adoption and Children Bill

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Tim Loughton: At last.

Jacqui Smith: The hon. Gentleman cannot have it both ways. In one breath he complains that there is not enough information and in another, when I am trying to further his education, he complains that I have gone on for too long.

The hon. Gentleman's amendment proposes adding a subsection to proposed new section 14A that would mean that a children's guardian would have to be appointed by the court in any proceedings relating to the making, variation or discharge of a special guardianship order, unless it was satisfied that it was not necessary to safeguard the child's interests.

Proposed new section 14A sets out who may apply for a special guardianship order and the process for making an application. Applicants must give three months' written notice to the local authority of their intention to apply for an order. That is to ensure that the local authority can investigate and prepare for the court a report about the suitability of the applicants to be special guardians, and other relevant matters. We intend to set out which matters should be covered by the report, and to use the regulations to ensure that there is an appropriate process for assessing the suitability of prospective special guardians. We shall consult on how the assessment process should work.

However, it is envisaged that statutory guidance will require the results of earlier relevant assessments to be taken into account—for example, where the applicants are approved foster carers. The provisions allow the local authority to engage the assistance of other organisations in preparing assessment reports. The experience of voluntary adoption agencies in assessment might make them suitable organisations to assist local authorities in that way.

The court cannot make an order unless it has received a report covering the suitability of the applicants to be special guardians and the involvement of the social services in the process. The requirements for what the report should cover will ensure that the welfare of the child and his interests are investigated and reported to the court. The

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Government intend to set out in court rules that a CAFCASS officer be appointed in appropriate special guardianship proceedings. However, subject to consultation, we envisage a CAFCASS officer being appointed in most cases where the court considers making a special guardianship order. We shall want to consider carefully the circumstances in which an officer should be appointed in cases where the court considers varying or discharging such an order. That is particularly true where all the parties have given their consent, and it may not be appropriate for a CAFCASS officer to be appointed in such cases.

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We shall consult widely before the court rules come into effect. They will set out the circumstances in which CAFCASS officers must be appointed and their duties in each case. We shall listen carefully to the views of stakeholders on that important issue, but we do not believe that the Bill should prescribe the power to appoint CAFCASS officers, because such a power already exists in section 41(6) of the Children Act 1989.

The hon. Member for East Worthing and Shoreham alluded to the fact that proposed new section 14E(6) introduced in March would have had a similar effect to the amendment, but that that provision does not appear in the present Bill. We have consciously made that change for two reasons after further consideration and discussions with colleagues in the Lord Chancellor's Department. First, we have confirmed that the Children Act already provides the power to appoint CAFCASS officers. Secondly, we are convinced that the issue is best dealt with through court rules, rather than in the Bill, because that approach allows for greater flexibility. In a small number of cases, the involvement of a CAFCASS officer will not be necessary or desirable—for example, where there is no contention and all parties have given their consent to the special guardianship proceedings being used to consider the discharge of the order for an older child.

Opposition Members also raised the issue of children's ability to receive representation, and there are two broad options for independent representation. Either the children's guardian and legal advisers act in tandem to represent the child as a separate party to the proceedings or the CAFCASS officer provides a report to the court, which can cover the child's wishes and feelings. Older children can instruct their own lawyer if the court thinks that they are competent to do so, although that is very rare. Such children can receive public legal services funding.

In the light of those reassurances and of my explanation of the change to the Bill, I hope that the hon. Member for East Worthing and Shoreham will withdraw the amendment.

Tim Loughton: I am enormously grateful to the Minister for furthering my education, as she so uncondescendingly put it. I was not complaining half an hour ago about her explanation, although some of

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us rather lost the will to live part way through it. However, she took various interventions on matters that had nothing to do with the amendment, and I hope that we shall not impinge on your tolerance, Mrs. Roe, if we raise other matters in a clause stand part debate.

I was grateful for the Minister's eventual explanation of the circumstances in which CAFCASS officers could be appointed, and it was useful to put those on the record. I am encouraged by her undertaking to consult widely on the use of such officers and on court proceedings. Uncharacteristically, she also went further towards explaining properly why the provisions in the draft Bill were changed. The proof of the pudding will be in the eating, when we see what happens with respect to court rules, but if what is envisaged is in the interest of greater flexibility, there is something to be said for it.

I am grateful for the explanation that has been given and sorry that my amendment took so much of the Committee's valuable time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 257, in page 60, line 12, after 'guardian', insert


    (c) a birth parent'.

The Chairman: With this, we may take amendment No. 258, in page 61, line 25, after 'guardian', insert


    (c) birth parents'.

Tim Loughton: These are also probing amendments. All our remaining amendments to the clause are targeted on support services. We have previously debated the importance of adoption support services and such support services will have no less importance when applied to special guardianship. The amendments would add a third category to the prescribed persons who may, under proposed new section 14F(2), at their own request have an assessment of their needs carried out or, under new section 14G(1), formally make representations, including complaints, to a local authority. Under the Bill, prescribed persons would be, first, a child with respect to whom a special guardianship order was in force and, secondly, a special guardian. We want birth parents to form the third category.

An interesting representation was made by the Family Rights Group to the effect that birth parents who kept up a contact arrangement with their children who were the subjects of a special guardianship order would obviously retain a closer interest in their children's welfare than would the birth parents of a child who had been adopted and responsibility for whose welfare had moved to a completely different sphere. Such parents are not accorded under proposed new sections 14F(2) and 14G(1) any right to assessment for support or any facility to make representations or complain, yet the effect of a special guardianship order would be to exclude them

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from decision making, although some contact would be likely.

Surely, in view of that, the birth parents would need adoption support services to explain to them the procedure that was coming into effect and how they would fit into it with respect to future contact. It would be a big decision for them. After the order had been made, problems might arise with the contact provisions, giving rise to the need for counselling, support services for domestic problems, or other such help. If there is a case for other people involved in the special guardianship order process to have special guardianship support services and the facility to make representations, I do not see why birth parents should be left out altogether. Unless that is specified in primary legislation, I fear that it will be a low, if not non-existent, priority for local authorities to provide either of those two services for birth parents. That is the point of this probing amendment. Birth parents will play a greater role in special guardianship than that played in any adoption by those whose child is adopted, so why, apparently, have they been excluded from the process altogether?

Jacqui Smith: Proposed new section 14F(2) provides that the local authority may, and in prescribed cases must, make an assessment for special guardianship support services at the request of

    ''a child with respect to whom a special guardianship order is in force''—


    ''a special guardian''.

As I said, proposed new section 14G sets out that the local authority shall establish a procedure for considering representations and complaints from those two groups about the way in which the local authority discharges its duties under proposed new section 14F.

Although many of the services required to support special guardianship will be similar to those required to support adoption, as I suggested in response to an intervention from the hon. Member for Canterbury, there are fundamental differences between special guardianship and adoption, particularly in that special guardianship does not have a lifelong effect. Special guardianship involves neither the permanent loss of a child to adoption, nor the same complex issues relating to tracing relatives and obtaining information that we discussed in detail last week and which will be covered by the adoption support provisions. Some special guardianship orders will be made with the consent of all the parties, but others will clearly be contested.

Nevertheless, the Government believe that, because of the fundamental difference between adoption and

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special guardianship, access to support for special guardianship should be more restricted than access to similar services for adoption. Our priority is to support the child and young person and his or her special guardians, and the provisions reflect that. In practice, many of the birth parents whose child is made the subject of a special guardianship order will already be in touch with social services. Some children may remain in the department's care. In such cases, depending on their need for services, the department may be able to help them.

The hon. Member for East Worthing and Shoreham raised the issue of support for contact. The local authority has a general duty under section 17 of the Children Act 1989 to provide services for children in need, their families and others. In particular, they have a duty to safeguard and promote the welfare of children living in their area and, so far as is consistent with that duty, to promote the upbringing of such children by their families.

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