Children and Adoption Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Children and Adoption Bill [HL]

Children and Adoption Bill [HL]
Part 1 — Orders with respect to children in family proceedings
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Risk assessments
7
Risk assessments
After section 16 of the Children Act 1989 (c. 41) insert—
“16A
Risk assessments
(1)
This section applies to the following functions of officers of the Service
5
or Welsh family proceedings officers—
(a)
any function in connection with family proceedings in which
the court has power to make an order under this Part with
respect to a child or in which a question with respect to such an
order arises;
10
(b)
any function in connection with an order made by the court in
such proceedings.
(2)
If, in carrying out any function to which this section applies, an officer
of the Service or a Welsh family proceedings officer is given cause to
suspect that the child concerned is at risk of harm, he must—
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(a)
make a risk assessment in relation to the child, and
(b)
provide the risk assessment to the court.
(3)
A risk assessment, in relation to a child who is at risk of suffering harm
of a particular sort, is an assessment of the risk of that harm being
suffered by the child.”
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Transitional provision
8
Transitional provision
(1)
This section applies to any contact order under section 8 of the Children Act
1989 made before, and in force on, the relevant date.
(2)
For so long as a contact order to which this section applies continues in force
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on and after the relevant date without being varied, the circumstances in which
a notice under section 11I of the Children Act 1989 is to be attached to the
contact order include—
(a)
where an application for such a notice to be attached to the contact
order is made by a person who, as regards the order, falls within any of
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paragraphs (a) to (d) of section 11J(5) of the Children Act 1989;
(b)
where, in any family proceedings, a question arises with respect to the
contact order.
(3)
Where the person proposing to apply under subsection (2)(a) is the child with
respect to whom the contact order was made, subsections (6) and (7) of section
35
11J have effect in relation to the application under subsection (2)(a) as they
have effect in relation to an application under section 11J for an enforcement
order.
(4)
If a failure to comply with a contact order to which this section applies occurs
while the contact order continues in force as described in subsection (2), each
40
of sections 11K(1) and 11P(1) of the Children Act 1989 is to have effect, in
relation to the failure, as if for paragraphs (a) and (b) there were substituted “a
notice under section 11I relating to the contact order”.

Children and Adoption Bill [HL]
Part 2 — Adoptions with a foreign element
13

(5)
In this section “relevant date” means the day on which sections 3 to 5 come into
force.
Part 2
Adoptions with a foreign element
9
Declaration of special restrictions on adoptions from abroad
5
(1)
This section applies if the Secretary of State has reason to believe that, because
of practices taking place in a country or territory outside the British Islands (the
“other country”) in connection with the adoption of children, it would be
contrary to public policy to further the bringing of children into the United
Kingdom in the cases mentioned in subsection (2).
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(2)
The cases are that a British resident—
(a)
wishes to bring, or cause another to bring, a child who is not a British
resident into the United Kingdom for the purpose of adoption by the
British resident, and, in connection with the proposed adoption, there
have been, or would have to be, proceedings in the other country or
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dealings with authorities or agencies there, or
(b)
wishes to bring, or cause another to bring, into the United Kingdom a
child adopted by the British resident under an adoption effected,
within the period of twelve months ending with the date of the
bringing in, under the law of the other country.
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(3)
It is immaterial whether the other country is a Convention country or not.
(4)
The Secretary of State may by order declare, in relation to any such country or
territory, that special restrictions are to apply for the time being in relation to
the bringing in of children in the cases mentioned in subsection (2).
(5)
Before making an order containing such a declaration the Secretary of State
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must consult—
(a)
the National Assembly for Wales, and
(b)
the Department of Health, Social Services and Public Safety in
Northern Ireland.
(6)
A country or territory in relation to which such a declaration has effect for the
30
time being is referred to below in this section as a “restricted country”.
(7)
The Secretary of State must publish reasons for making the declaration in
relation to each restricted country.
(8)
The Secretary of State must publish a list of restricted countries (“the restricted
list”) and keep the list up to date.
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(9)
The restricted list and the reasons are to be published in whatever way the
Secretary of State thinks appropriate for bringing them to the attention of
adoption agencies and members of the public.
(10)
In this section—
(a)
“British resident” means a person habitually resident in the British
40
Islands, and the reference to adoption by a British resident includes
adoption by a British resident and another person,

Children and Adoption Bill [HL]
Part 2 — Adoptions with a foreign element
14

(b)
“the Convention” means the Convention on Protection of Children and
Co-operation in respect of Intercountry Adoption, concluded at The
Hague on 29th May 1993,
(c)
“Convention country” means a country or territory in which the
Convention is in force.
5
10
Review
(1)
The Secretary of State must keep under review, in relation to each restricted
country, whether it should continue to be a restricted country.
(2)
If the Secretary of State determines, in relation to a restricted country, that there
is no longer reason to believe what is mentioned in subsection (1) of section 9,
10
he must by order revoke the order containing the declaration made in relation
to it under subsection (4) of that section.
(3)
Before making a determination under subsection (2), the Secretary of State
must consult—
(a)
the National Assembly for Wales, and
15
(b)
the Department of Health, Social Services and Public Safety in
Northern Ireland.
(4)
In this section, “restricted country” has the same meaning as in section 9.
11
The special restrictions
(1)
The special restrictions mentioned in section 9(4) are that, except as mentioned
20
in subsection (2) of this section, the appropriate authority is not to take any step
which he or it might otherwise have taken in connection with furthering the
bringing of a child into the United Kingdom in the cases mentioned in section
9(2) (whether or not that step is provided for by or by virtue of any enactment).
(2)
But nothing in subsection (1) prevents the appropriate authority from taking
25
those steps if, in any particular case, the prospective adopters satisfy—
(a)
the appropriate authority, or
(b)
in relation to Northern Ireland, in a case which is not a Convention case,
the Secretary of State,

that the appropriate authority should take those steps despite the special
30
restrictions.
(3)
The Secretary of State may make regulations providing for—
(a)
the procedure to be followed by the appropriate authority (or, if
subsection (2)(b) applies, the Secretary of State) in determining whether
or not he or it is satisfied as mentioned in subsection (2),
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(b)
matters which the appropriate authority (or the Secretary of State) is to
take into account when making such a determination (whether or not
he or it also takes other matters into account).
(4)
In this section—
“the appropriate authority” means, in a Convention case, the Central
40
Authority in relation to England, to Wales or to Northern Ireland (as
the case may be), and in any other case—
(a)
in relation to England and Wales, the Secretary of State,
(b)
in relation to Northern Ireland, the Secretary of State (for the
purposes of steps which he takes) or the Department of Health,
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Children and Adoption Bill [HL]
Part 2 — Adoptions with a foreign element
15

Social Services and Public Safety in Northern Ireland (for the
purposes of steps which it takes),
“Central Authority” is to be construed in accordance with section 2 of the
Adoption (Intercountry Aspects) Act 1999 (c. 18) (“the 1999 Act”) or, in
relation to Northern Ireland, section 2 of the Adoption (Intercountry
5
Aspects) Act (Northern Ireland) 2001 (c. 11 (N.I.)) (“the 2001 Act”),
“Convention case” means a case where—
(a)
the child is intended to be adopted under an adoption order
which, by virtue of regulations under section 1 of the 1999 Act
or section 1 of the 2001 Act (as appropriate) is made as a
10
Convention adoption order, or
(b)
the child is intended to be adopted under an adoption effected
under the law of a Convention country outside the British
Islands, and certified in pursuance of Article 23(1) of the
Convention,
15

and “the Convention” and “Convention country” have the meanings given by
section 9(10).
12
Imposition of extra conditions in certain cases
(1)
The Secretary of State may make regulations providing—
(a)
for him to specify in the restricted list, in relation to any restricted
20
country, a step which is not otherwise provided for by or by virtue of
any enactment but which, by virtue of the arrangements between the
United Kingdom and that country, the appropriate authority normally
takes in connection with the bringing in of a child where that country is
concerned, and
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(b)
that, if such a step has been so specified in relation to a restricted
country, one or more conditions specified in the regulations are to be
met in respect of a child brought into the United Kingdom in either of
the cases mentioned in section 9(2) (reading the reference there to the
“other country” as being to the restricted country in question).
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(2)
Those conditions are in addition to any provided for by virtue of—
(a)
section 83 of the Adoption and Children Act 2002 (c. 38) (restriction on
bringing children in), or
(b)
Article 58ZA of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/
2203 (N.I. 22)) (restriction on bringing children in),
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or under or by virtue of any other enactment.
(3)
A person who brings, or causes another to bring, a child into the United
Kingdom is guilty of an offence if any condition required to be met by virtue
of subsection (1)(b) is not met.
(4)
Subsection (3) does not apply if the step specified in the restricted list in
40
relation to any country had already been taken before the publication of the
restricted list.
(5)
A person guilty of an offence under subsection (3) is liable—
(a)
on summary conviction to imprisonment for a term not exceeding 12
months (in England and Wales) or 6 months (in Northern Ireland), or a
45
fine not exceeding the statutory maximum, or both,
(b)
on conviction on indictment, to imprisonment for a term not exceeding
12 months, or a fine, or both.

Children and Adoption Bill [HL]
Part 2 — Adoptions with a foreign element
16

(6)
In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates’ court’s
power to impose imprisonment), the reference in subsection (5)(a) to 12
months is to be read as a reference to 6 months.

This subsection does not extend to Northern Ireland.
5
(7)
In this section—
(a)
“the appropriate authority” has the meaning given by section 11(4),
(b)
“restricted country” and “restricted list” have the same meanings as in
section 9.
13
Power to charge
10
After section 91 of the Adoption and Children Act 2002 (c. 38) insert—
“91A
Power to charge
(1)
This section applies to adoptions to which—
(a)
section 83 applies, or
(b)
regulations made under section 1 of the Adoption (Intercountry
15
Aspects) Act 1999 apply.
(2)
The Secretary of State may charge a fee to adopters for services
provided or to be provided by him in relation to adoptions to which
this section applies.
(3)
The Assembly may charge a fee to adopters for services provided or to
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be provided by it as the Central Authority in relation to adoptions to
which this section applies by virtue of subsection (1)(b).
(4)
The Secretary of State and the Assembly may determine the level of fee
as he or it sees fit, and may in particular—
(a)
charge a flat fee or charge different fees in different cases or
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descriptions of case, and
(b)
in any case or description of case, waive a fee.
(5)
But the Secretary of State and the Assembly must each secure that,
taking one financial year with another, the income from fees under this
section does not exceed the total cost to him or, as the case may be, to it
30
of providing the services in relation to which the fees are imposed.
(6)
In this section—
references to adoptions and adopters include prospective
adoptions and prospective adopters,
“Central Authority” is to be construed in accordance with section
35
2 of the Adoption (Intercountry Aspects) Act 1999,
“financial year” means a period of twelve months ending with 31st
March.”
14
Other amendments relating to adoptions from abroad
(1)
In section 83 of the Adoption and Children Act 2002 (c. 38) (restriction on
40
bringing children into the United Kingdom), in subsection (1)(b), for “six”
substitute “twelve”.

Children and Adoption Bill [HL]
Part 3 — Miscellaneous and final
17

(2)
The amendment made by subsection (1) applies only in relation to a child
adopted under an external adoption (see section 83(3) of the Adoption and
Children Act 2002) effected after subsection (1) comes into force.
(3)
In Schedule 8 to the Children Act 1989 (c. 41) (privately fostered children), in
paragraph 5 (as amended by paragraph 73 of Schedule 3 to the Adoption and
5
Children Act 2002), after sub-paragraph (c) add—

“or while he is a child in respect of whom a local authority have
functions by virtue of regulations under section 83(6)(b) of the
Adoption and Children Act 2002 (which relates to children brought
into the United Kingdom for adoption), or corresponding functions
10
by virtue of regulations under section 1 of the Adoption
(Intercountry Aspects) Act 1999 (regulations to give effect to Hague
Convention on Protection of Children and Co-operation in respect of
Intercountry Adoption).”
Part 3
15
Miscellaneous and final
Miscellaneous provisions
15
Minor and consequential amendments and repeals
(1)
Schedule 2 (minor and consequential amendments) has effect.
(2)
Schedule 3 (repeals) has effect.
20
Final provisions
16
Regulations and orders
(1)
Any power to make regulations conferred by this Act on the Secretary of State
is exercisable by statutory instrument.
(2)
The power to make and revoke an order under section 9(4) is also exercisable
25
by statutory instrument.
(3)
A statutory instrument mentioned in subsection (1) or (2) is to be subject to
annulment in pursuance of a resolution of either House of Parliament.
(4)
Regulations made under this Act may make different provision for different
purposes.
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(5)
A power to make regulations under this Act (as well as being exercisable in
relation to all cases to which it extends) may be exercised in relation to—
(a)
those cases subject to specified exceptions, or
(b)
a particular case or class of case.
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Short title, commencement and extent
35
(1)
This Act may be cited as the Children and Adoption Act 2005.
(2)
Except as provided in subsection (3), the preceding provisions of this Act shall
come into force on such day as the Secretary of State may by order made by

Children and Adoption Bill [HL]
Part 3 — Miscellaneous and final
18

statutory instrument appoint; and different days may be appointed for
different purposes.
(3)
Section 13, so far as relating to adoptions and prospective adoptions in relation
to which the National Assembly for Wales may charge a fee under section 91A
of the Adoption and Children Act 2002 (c. 38), shall come into force on such
5
day as the National Assembly for Wales may by order made by statutory
instrument appoint; and different days may be appointed for different
purposes.
(4)
Before making an order under subsection (2) the Secretary of State must
consult the National Assembly for Wales.
10
(5)
Before making an order under subsection (2) bringing sections 9 to 12 into
force, the Secretary of State must consult the Department of Health, Social
Services and Public Safety in Northern Ireland.
(6)
Subject to subsections (7) and (8), this Act extends to England and Wales only.
(7)
The amendment or repeal of an enactment has the same extent as the
15
enactment to which it relates.
(8)
The following provisions of this Act extend also to Northern Ireland—
(a)
sections 9 to 11;
(b)
section 12(1) to (5) and (7);
(c)
section 16;
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(d)
this section.
(9)
Nothing in this Act shall impose any charge on the people or on public
funds, or vary the amount or incidence of or otherwise alter any such charge
in any manner, or affect the assessment, levying, administration or
application of any money raised by any such charge.
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