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Session 2005 - 06|
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|Children And Adoption Bill [HL]|
These notes refer to the Children and Adoption Bill [HL] as brought from the House of Lords on 30th November 2005 [Bill 96]
CHILDREN AND ADOPTION BILL [HL]
1. These explanatory notes relate to the Children and Adoption Bill [HL] as brought from the House of Lords on 30th November 2005. They have been prepared by the Department for Education and Skills in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. This Bill is intended to assist in the implementation of the Green Paper Parental Separation: Children's Needs and Parents' Responsibilities (Cm 6273), published in July 2004 and available on the website www.dfes.gov.uk/childrensneeds.
4. The Green Paper was followed by Parental Separation: Children's Needs and Parents' Responsibilities: Next Steps (Cm 6452), published in January 2005, which set out the Government's response to the consultation on the Green Paper and its proposals for further work. Subsequent to that, the Children (Contact) and Adoption Bill was published in draft on 2nd February for pre-legislative scrutiny by an ad hoc joint committee of both Houses of Parliament. The scrutiny committee published its report on 12th April 2005, and The Government Reply to the Report from the Joint Committee on the Draft Children (Contact) and Adoption Bill (Cm 6583) was published on 8th June 2005.
5. The Bill provides the courts with new powers to promote contact and enforce contact orders made under section 8 of the Children Act 1989 ("the 1989 Act").
[Bill 96-EN] 54/1
6. The Bill also makes a number of provisions about intercountry adoption, including a statutory framework for the suspension of intercountry adoption from specified countries where there are concerns about practices in connection with the adoption of children.
7. Part 1 of the Bill extends only to England and Wales. Part 2 of the Bill extends to England, Wales and Northern Ireland. The Annex contains a summary of the effects on the powers of the National Assembly for Wales.
Part 1 - Orders with respect to children in family proceedings
8. Part 1 of the Bill adds to the powers of the courts when dealing with cases involving contact with children.
9. During the proceedings a court may, even if it does not make a contact order, direct a party to take part in an activity that would promote contact with a child. It may make similar provision by means of a condition in a contact order.
10. The courts' powers in cases involving breach of a contact order are increased by adding:
11. These powers are in addition to their powers as to contempt and their ability to alter the residence and contact arrangements as regards a child.
12. Part 1 also includes provision to reform the courts' existing power to make family assistance orders and imposes a duty on the Children and Family Court Advisory and Support Service (CAFCASS) and Welsh family proceedings officers to carry out risk assessments where they suspect a child is at risk of harm.
Part 2 - Adoptions with a foreign element
13. Part 2 makes provision for the Secretary of State to suspend intercountry adoptions from a country if he has concerns about the practices there in connection with the adoption of children.
14. It also makes other provision for the following other matters relating to intercountry adoption:
Part 3 - Miscellaneous and final
15. Part 3 makes a number of miscellaneous and final provisions, including consequential amendments and provision about the operation of regulations made under the Bill.
16. It also provides for Schedules 2 and 3, which make provision for minor and consequential amendments and repeals, to have effect.
COMMENTARY ON SECTIONS AND SCHEDULES
Part 1 - Orders with respect to children in family proceedings
Clause 1 - Contact activity directions and conditions
17. Clause 1 inserts a series of new sections 11A to 11G after section 11 of the 1989 Act. Inserted section 11A of the 1989 Act makes provision for courts to make orders for 'contact activity directions' where a court is considering whether to make a contact order (or to vary or discharge a contact order).
18. This allows the court to direct a party to the case, at any stage in proceedings prior to a final order being made as to contact, to undertake activities promoting contact (or 'contact activities'). The type of activities covered by this heading may include, in particular, those referred to in section 11A(5) of the 1989 Act, such as programmes, classes and counselling or guidance sessions which may assist with establishing, maintaining or improving contact with a child. Other possible activities are programmes designed to address a person's violent behaviour in order to facilitate contact and information sessions about arrangements for contact, including information sessions about mediation. Section 11A(6) prevents a contact activity direction being used to require mediation or medical or psychiatric treatment.
19. Section 11B of the 1989 Act provides that a contact activity direction may only be made where there is some dispute about the provision about contact that the court is considering whether to make, i.e. whether to make a contact order, or what its detailed provisions for contact should be. It also provides that the court cannot order a child to take part in an activity, unless that child is the parent of the child concerned. The court cannot order an individual to take part in an activity unless that individual is habitually resident in England and Wales. If an individual who is subject to a contact activity direction ceases to be habitually resident in England and Wales, the contact activity direction will cease to have effect.
20. Section 11B also provides that contact activity directions cannot be used in proceedings where an application for an "excepted order" is being considered. This means that a contact activity direction may not be made in cases where an adoption order is being considered at the same time as a contact order, or in cases where, post-adoption, a court is considering making, varying or discharging a contact order in relation to someone who, but for the adoption, would have been a relative of the child. These exceptions for adoption cases will not apply where the adoption is, or was, by a partner of one of the child's parents or by a couple, one member of which is a parent of the child.
21. Section 11C of the 1989 Act provides for a court to make a 'contact activity condition' when making or varying a contact order under section 8 of the 1989 Act. The condition will require a person to take part in a contact activity. Section 11C(5) provides that the activities that may be required by a contact activity condition are the same as those that may be required by a contact activity direction. The following may be subject to a contact activity condition:
22. Section 11D of the 1989 Act provides that a contact order which is an "excepted order" (see section 11B) may not impose a contact activity condition. As with contact activity directions, the court cannot require a child to undertake a contact activity condition (unless the child is a parent of the child concerned), nor can a person who is not habitually resident in England and Wales be subject to a contact activity condition.
23. Section 11E of the 1989 Act sets out what steps the court must take before it makes a contact activity direction or condition. It makes clear that a court can only make such directions or conditions if it is satisfied that:
24. A court is also required to consider the likely effect of the contact activity on the person who would be required to undertake it, taking into account in particular any conflict with the person's religious beliefs and the times when he or she works or attends an educational establishment. The section provides that a court may ask a CAFCASS officer 1 to provide information on the matters specified in section 11E.
1 References in these Notes to CAFCASS officers should be read as referring equally to Welsh family proceedings officers in relation to Wales.
25. Section 11F of the 1989 Act enables the Secretary of State, or the National Assembly for Wales, as appropriate, to make provision by regulations authorising the Secretary of State or the National Assembly for Wales (depending on the ordinary residence of the child) to make payments to assist some of those required to undertake contact activities in paying the charges or fees of those providing the activities. Regulations may provide that the activity provider must have been approved by the Secretary of State (or the National Assembly for Wales) in order for financial assistance to be provided in respect of their activities.
26. Regulations may set a maximum amount of financial assistance that will be paid per contact activity, may set a sliding scale to determine how much assistance people get depending on their financial circumstances, and may provide for payments to be made direct to activity providers rather than to individuals.
27. Section 11G of the 1989 Act provides that a court may ask a CAFCASS officer to monitor compliance with contact activity directions or conditions and to report to the court on failure to comply.
Clause 2 - Monitoring contact
28. In addition to the power to ask a CAFCASS officer to monitor compliance with contact activity directions and contact activity conditions under new section 11G, section 11H of the 1989 Act, inserted by clause 2, provides that a court may ask a CAFCASS officer to monitor compliance with a contact order, and to report to the court on such matters relating to compliance as the court may specify. The court may ask the CAFCASS officer to carry out this role for a period of up to a year. The court may not request monitoring of an order which is an "excepted order". Those who can be subject to monitoring are:
Clause 3 - Contact orders: warning notices
29. Clause 3 inserts new section 11I into the 1989 Act, which provides that whenever a court makes or varies a contact order, it must attach a notice warning of the consequences of failing to comply with a contact order. (The consequences of failure to comply may be an enforcement order, financial compensation order, or use of courts' existing sanctions for contempt.)
Clause 4 - Enforcement orders
30. Clause 4 inserts provision in the 1989 Act for a court to make an "enforcement order" (sections 11J to 11N of the 1989 Act). An enforcement order imposes an unpaid work requirement on a person who has breached a contact order. Before making an enforcement order, the court must be satisfied beyond reasonable doubt that the person was in breach of the contact order. A breach of a contact activity condition, or of a condition attached to a contact order under section 11(7) of the 1989 Act, constitutes a breach of a contact order. The court may not make an enforcement order if it is satisfied that the person in breach of the contact order had a reasonable excuse for breaching the order. In proving that there was a reasonable excuse, the burden of proof will fall upon the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
31. Enforcement orders may only be made in response to an application by the following:
32. Section 11K of the 1989 Act provides that a court may not make an enforcement order against a person unless the person has received a copy of a notice under section 11I of the 1989 Act, or has been otherwise informed of its terms. It also provides that an enforcement order cannot be made against anyone who was aged under 18 at the time of the breach in question, or in relation to a breach of an "excepted order".
33. Section 11L of the 1989 Act provides that in deciding whether to make an enforcement order, the court must be satisfied that the making of the order is necessary to secure compliance with the order in question and that the order is proportionate, given the seriousness of the breach.
34. That section also requires the court, before making an enforcement order, to obtain and consider information about the person on whom the order would be imposed, and the likely effect of the order on him including, in particular, any conflict with his religious beliefs, or times at which he is at work or attending an educational establishment. The court must be satisfied that the enforcement measure is available within the local justice area in which the person subject to the enforcement order resides. The court may ask a CAFCASS officer to provide the information required under this section. When considering making an enforcement order, the court must take into account the welfare of the child concerned.
35. Section 11M of the 1989 Act provides that the court may ask a CAFCASS officer to monitor, or arrange for the monitoring of, a person's compliance with an enforcement order, and to report to the court on failure to comply and on any unsuitability to undertake the unpaid work.
36. Section 11N of the 1989 Act provides that where an enforcement order is made, the court must attach a notice warning of the consequences of breaching that order. The possible consequences are the imposition of a new enforcement order, or making the existing order more onerous (paragraph 9 of Schedule A1 of the 1989 Act, as inserted by Schedule 1, refers), the making of a financial compensation order or the use of existing sanctions for contempt.
37. Clause 4 also introduces Schedule 1 which inserts Schedule A1 to the 1989 Act.
Schedule 1 - Enforcement orders
38. Schedule A1 to the 1989 Act, inserted by Schedule 1 to the Bill, makes further provision about enforcement orders.
39. Paragraphs 2 and 3 of Schedule A1 to the 1989 Act modify Chapter 4 of Part 12 of the Criminal Justice Act 2003 ("the 2003 Act") so as to make further provision about enforcement orders under section 11J of the 1989 Act. As well as a number of detailed technical changes to ensure the operation of those provisions, it specifies that the maximum number of hours of unpaid work that may be required is 200, rather than 300, which is the maximum that may be required by a criminal court.
40. Part 2 of Schedule A1 to the 1989 Act gives powers to the court to amend or revoke an enforcement order.
41. Paragraph 9 of Schedule A1 provides that, if the terms of an enforcement order are breached, the court may (in circumstances specified in paragraph 9) amend the original order to make it more onerous, or impose another enforcement order.
Clause 5 - Compensation for financial loss
42. Sections 11O and 11P of the 1989 Act, inserted by clause 5, allow the court to require a person who has caused financial loss to another person as a result of breaching a contact order (which would include breaching a condition attached to a contact order), to pay compensation up to the amount of the loss. The court must take into account the welfare of any child concerned, and the financial circumstances of the person in breach, when making such an order.
43. Applications for an order under section 11O may be made only by a person falling within one of the following categories:
44. Section 11P of the 1989 Act makes provision for when a court may not make an order for financial compensation. This includes cases where the person in breach did not receive a notice under section 11I and was not otherwise informed of its terms or where the contact order is an excepted order.
Clause 6 - Provision as to family assistance orders
45. Clause 6 amends section 16 of the 1989 Act so as to enable family assistance orders (FAOs) to be used more often and for a longer duration. The requirement that FAOs be made only in exceptional circumstances is removed, and the maximum duration of such orders is extended from six to twelve months.
46. The amendments also provide that where an FAO is to be in force at the same time as a contact order with respect to a particular child, the FAO may direct the CAFCASS or local authority officer carrying it out to give advice and assistance about improving and maintaining contact.
47. Finally, the amendment made to section 16(6) of the 1989 Act by subsection (5) provides that FAOs may direct the CAFCASS or local authority officer concerned to report to the court on matters regarding any section 8 order 2 which is in force at the same time, including whether the order ought to be varied or discharged.
2 A section 8 order is an order under section 8 of the 1989 Act. A contact order is a section 8 order.
Clause 7 - Risk Assessments
48. Clause 7 adds a new section 16A to the 1989 Act, which requires CAFCASS officers to carry out a risk assessment and provide it to the court if, in the course of carrying out any function in private law family proceedings under the 1989 Act, the officer is given cause to suspect that the child concerned is at risk of harm. Private family law proceedings include applications for residence and contact orders and applications for enforcement of contact orders. The duty applies whenever an officer is involved in any function connected with such proceedings including, for instance, preparing a report of the court under section 7 of the 1989 Act, monitoring of contact orders as provided for by new section 11H of the 1989 Act or working on alternative dispute resolution. It also applies where an officer is carrying out functions under a family assistance order.
Clause 8 - Transitional provision
49. Clause 8 makes transitional provision as regards contact orders made before the commencement of clauses 4 and 5. The clause provides for two ways in which warning notices can be attached to such contact orders. Either a specific application can be made for a warning notice to be attached to the contact order, or the court must attach a warning notice to the contact order if the contact order is in issue in any family proceedings. Attaching a warning notice makes it possible to apply for an enforcement order or an order for financial compensation against the person given the notice.
Part 2 - Adoptions With A Foreign Element
Clause 9 - Declaration of special restrictions on adoptions from abroad
50. Clause 9 makes provision regarding the suspension of intercountry adoptions from countries where the Secretary of State has determined that it would be contrary to public policy to further the bringing of children into the United Kingdom by British residents in the cases specified in subsection (2). The provisions apply equally to adoptions from countries that are signatories to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at The Hague on 29th May 1993, and those that are not.
51. Subsection (2) provides that the cases to which the clause applies are, under paragraph (a), where a British resident wishes to bring or cause another person to bring a child who is not a British resident into the United Kingdom for the purposes of adoption by the British resident and there have been, or would have to be, some dealings with the country that has given rise to the concern; and, under paragraph (b), where a British resident wishes to bring or to cause another to bring a child into the United Kingdom having adopted the child abroad within 12 months of the date on which he brings the child in. The term British resident is defined in subsection (10).
52. Both these cases mirror the cases to which section 83 of the Adoption and Children Act 2002 (restriction on bringing children in) applies, subject to being amended by a provision in clause 14 of this Bill.
53. Subsections (4) and (5) provide that the suspension is achieved through a declaration made by order by the Secretary of State, following consultation with the National Assembly for Wales and the Department of Health, Social Services and Public Safety in Northern Ireland, that 'special restrictions' are to apply in relation to bringing children into the United Kingdom in the cases specified in subsection (2). The Secretary of State must publish his reasons for making the declaration and a list of 'restricted countries', a list known as the 'restricted list'. Subsections (7), (8) and (9) require the publication of both the list and the reasons in a way that the Secretary of State thinks appropriate for bringing them to the attention of adoption agencies and members of the public.
Clause 10 - Review
54. Clause 10 requires the Secretary of State to keep the restricted list under review. If the Secretary of State no longer has reason to believe that it would be contrary to public policy to further the bringing of children into the United Kingdom from a restricted country, he is required to revoke the order containing the declaration made in relation to that country. Before doing so, he must consult the National Assembly for Wales and the Department of Health, Social Services and Public Safety in Northern Ireland.
Clause 11 - The special restrictions
55. Clause 11 makes provision for the special restrictions that may be applied by virtue of clause 9. It provides that the appropriate authority is not to take any step which he or it may otherwise have taken to further the intercountry adoption.
56. The term 'appropriate authority' is defined in subsection (4). Who the appropriate authority is in a particular case will depend on whether or not the case is a Convention case that is conducted under procedures established under the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at The Hague on 29th May 1993. If it is a Convention case then the appropriate authority will be the Central Authority: that is, in relation to England, the Secretary of State, in relation to Wales, the National Assembly for Wales, and in Northern Ireland, the Department of Health, Social Services and Public Safety. If it is not a Convention case, then the appropriate authority in England and Wales is the Secretary of State, and in Northern Ireland is the Secretary of State and the Department of Health, Social Services and Public Safety, for the purposes of the steps in the process which each takes.
57. The effect of the restrictions is that the Secretary of State, the National Assembly for Wales or the Department of Health, Social Services and Public Safety would no longer process intercountry adoption cases from the restricted country. The steps referred to would include, for example, the issuing of a certificate of eligibility to adopt and the forwarding of matching reports from the child's country of origin to the prospective adopters by those acting on behalf of the Secretary of State.
58. Subsection (2) also provides, however, for adoptions to be permitted to continue in exceptional cases - that is, cases where the prospective adopters are able to satisfy the appropriate authority (or, in the case of non-Convention cases in Northern Ireland, the Secretary of State) that the adoption should proceed. Subsection (3) allows regulations to provide for the procedure to be followed by the appropriate authority (or, in the case of non-Convention cases in Northern Ireland, the Secretary of State) in the consideration of exceptional cases and a non-exhaustive list of matters that must be taken into account.
|© Parliamentary copyright 2005||Prepared: 1 December 2005|