Clause 12 - Imposition of extra conditions in certain cases

59.     When special restrictions are declared in relation to a country, regulations under clause 12 will allow the Secretary of State to specify in the restricted list a step in relation to that country. The step is likely to be the latest point at which the appropriate authority is involved in the processing of intercountry adoption applications. The step might be, for example, forwarding a matching report from the foreign authority to the prospective adopter.

60.     Where a step has been specified in relation to a country, the regulations may also provide one or more conditions that must be met in relation to adoptions from that country. These conditions would be in addition to any conditions already set out in existing legislation on restrictions on bringing children into the UK for adoption. A condition could be, for example, that the adopters have received written notification from the Secretary of State that their adoption can proceed.

61.     If a child is brought into the UK without any such condition or conditions having been met, the person who brings the child into the UK (or causes another person to bring the child in) is guilty of an offence. In that case, they are liable to a prison term of up to 12 months in England and Wales, six months in Northern Ireland, and/or a fine.

62.     If the step specified in the regulations has already been taken before the country was added to the restricted list, no offence would be committed.

63.     Subsection (6) lowers the maximum prison sentence that can be imposed in England and Wales to six months for the period until the coming into force of section 154 (1) of the Criminal Justice Act 2003 which will raise the maximum prison term that can be imposed by magistrates' courts to 12 months.

Clause 13 - Power to charge

64.     Clause 13 inserts new section 91A into the Adoption and Children Act 2002. Section 91A(2) provides the Secretary of State with the power to charge a fee to adopters or prospective adopters for services provided or to be provided by the Secretary of State in relation to intercountry adoptions. Section 91A(3) gives the National Assembly for Wales the power to charge a fee for the services provided or to be provided by it as the Central Authority in Convention cases.

65.     The Secretary of State and the Assembly may determine how much to charge, and may in particular charge a single flat fee or set different fees for different cases, providing the fee income received, in any one financial year, is not greater than the cost of providing the services. The clause also provides the Secretary of State and the Assembly with discretion to waive the fee in any given case.

Clause 14 - Other amendments relating to adoptions from abroad

66.     Clause 14 makes two further provisions regarding intercountry adoption. The first amends section 83 of the Adoption and Children Act 2002. Section 83, among other things, makes it an offence for a British resident to bring or cause someone else to bring into the United Kingdom a child who was habitually resident outside the British Islands who has been adopted within the period of six months before he was brought in, unless the adopter meets certain requirements and conditions. These conditions include that the adopter has been assessed and approved in accordance with regulations. This clause extends that time limit to twelve months.

67.     Subsection (2) provides that the amendment made above will only apply in relation to a child adopted under an external adoption order made after the change from six to 12 months is brought into force. Before commencing this amendment, the Government will look to give a sufficient period of notice.

68.     Where a notice of intention to adopt a child (who has been brought into the country for the purposes of intercountry adoption) has been provided to a local authority the authority will have certain functions to discharge in respect of him, under regulations made under section 83(6)(b) of the Adoption and Children Act 2002. Such a child may also be considered to be a privately fostered child as defined in section 66 of the 1989 Act. If he is then the local authority would have duties in respect of the children under regulations made under section 67 of the 1989 Act. The local authority functions under the regulations will be very similar. The effect of the provision in clause 14(3) is to exclude the child in respect of whom a notice of intention to adopt has been served from the definition of a privately fostered child, so preventing the local authority being subject to two different sets of duties in respect of the same child.

Part 3 - Miscellaneous and Final

69.     This Part makes general provisions. Clause 15 introduces the minor and consequential amendments Schedule and the repeals Schedule. Clause 16 provides for regulations and orders under this Bill to be subject to the negative resolution procedure.

PUBLIC SECTOR FINANCIAL COST

Part 1

70.     For illustrative purposes, we assume that measures on contact orders will reduce enforcement applications by up to 80%, reducing the annual caseload for enforcement applications from around 7,000 per year to around 1,400. Since the Bill would permit contact activities to be used prior to the enforcement stage, or indeed prior to a contact order being made, we should allow for the possibility they will be used in a proportion of all contact cases, not just those that require enforcement. Therefore, costs to Government shown in the options set out below with regard to contact activities are illustrated on this basis, assuming in future between 9,400 and 27,000 contact applications per year (discounting repeat applications except those for enforcement).

71.     The role proposed for CAFCASS in administering the Bill has been discussed with them, and it is anticipated that no net additional resources would be needed as regards providing information on the availability of contact activities, as most CAFCASS officers would be aware of information relating to programmes in an area through the course of their normal work, and would not require additional research to advise the court. The same applies as regards notifying courts of a breach of a contact activity or an enforcement order, since the actual monitoring of these will be carried out by those directly involved in their administration, who will in turn notify CAFCASS.

72.     CAFCASS will also continue their present role in administering family assistance orders. We anticipate that there may be some resource implications associated with the reformed orders, though this may be offset by a reduction in work associated with ongoing court proceedings where family assistance orders are used to facilitate and support contact arrangements.

73.     While we cannot be certain how often the new powers open to courts would be used, we offer illustrative costings below based on different assumptions about future usage.

74.     From analysis of 300 court files, around 60% of contact cases include one or more parties that are legally aided. For the purposes of illustration, the figure of 60% is used to estimate the proportion of parties who may receive assistance with the cost of contact activities.

75.     If we assume that in 20% of contact cases, one or both of the parents would be referred to contact activities, this would result in a cost to Government of between around £71,000 and £406,000 a year for the contact activities depending on the level of the future reduction in applications.

76.     If we assume that in 50% of contact cases, one or both of the parents would be referred to contact activities, this would result in a cost to Government of between around £177,000 and £1,014,000 for the contact activities depending on the level of the future reduction in applications.

77.     The cost for unpaid work requirements imposed by enforcement orders is estimated to be £2,000 for an order for 80 hours of unpaid work. ³

³ Home Office estimate for unpaid work requirements imposed under the Criminal Justice Act 2003, based on 5-6 hours per day for 16 days. Includes fixed cost and daily supervision fee.

78.     If we assume parents in 1% of cases where an application for enforcement is made are required by the court to carry out an unpaid work requirement, this would result in between around £28,000 and £140,000 being required from the Government per year.

79.     If we assume parents in 3% of cases where an application for enforcement is made are required by the court to carry out unpaid work, this would result in between around £84,000 and £420,000 being required from the Government per year.

Part 2

80.     Measures on intercountry adoption are not expected to have any cost except in terms of staff time at the Department for Education and Skills. Provisions on charging for administration of intercountry adoption casework would result in a saving to Government of around £290,000 per year.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

81.     We do not anticipate that the provisions in the Bill will have a significant effect on public service manpower.

SUMMARY OF REGULATORY IMPACT ASSESSMENT

82.     A regulatory impact assessment (RIA) has been produced to accompany the Bill and is available on www.dfes.gov.uk/childrensneeds.

Part 1

83.     There are a number of potential costs to Government associated with the implementation of Part 1 of the Bill, depending on the frequency with which the new disposals are used by the courts. These costs are set out under 'public sector financial cost' above. There will also be some costs to parents and families, as a result of being expected to pay the cost of courses and programmes which the courts direct them to participate in, though this may be offset where financial assistance is provided through regulations under new section 11F of the 1989 Act.

84.     It is expected that the measures in this Bill will help to reduce the numbers of repeat applications and applications for enforcement.

85.     It is anticipated that savings will result from the Bill as a consequence of a reduction in the number and duration of contested court cases.

Part 2

86.     The present cost to the Department for Education and Skills of providing intercountry adoption casework services is around £290,000 per year. Were a charge to be made to meet the cost of these services, this would be around £800 - £1000 per adopter assuming caseload remains at about 300 to 350 per year.

87.     The RIA does not contain references to the provisions in the Bill on intercountry adoption, except those relating to charging for administration of intercountry adoption casework, as these will not impact significantly on businesses, charities or the voluntary sector.

COMMENCEMENT DATES

88.     Subject to one exception, clauses 1 to 16 are to be commenced by order of the Secretary of State, after consultation with the National Assembly for Wales. The exception appears in clause 17(3) which provides that section 13, in so far as it relates 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, comes into force on a day appointed by the National Assembly for Wales. Before bringing sections 9 to 12 into force, the Secretary of State must also consult the Department of Health, Social Services and Public Safety in Northern Ireland.

EUROPEAN CONVENTION ON HUMAN RIGHTS

Section 19 statement

89.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before Second Reading. The Secretary of State, the Rt Hon Ruth Kelly MP, has made the following statement:

"In my view the provisions of the Children and Adoption Bill [HL] are compatible with the convention rights."

Part 1: Contact with children

90.     It is considered that the ability to require a person to undertake a contact activity would not breach that person's Article 6 rights, as such a requirement would not of itself mean that the case before the court would not be concluded in due course. If a person's Article 8 rights were engaged by the making of a contact activity direction, contact activity condition or family assistance order, it is considered that those rights would not be infringed, as the direction or condition would be justified since it pursues a legitimate objective, would be in accordance with the law, and would be a proportionate response to the objective, in that it would be a reasonable way to seek to ensure that an outcome that is in the best interests of a child may be facilitated.

91.     We believe that the unpaid work requirement under Clause 4 is compliant with the ECHR. In relation to enforcement orders, appropriate procedural safeguards will be put in place to ensure the Article 6 rights of those affected are not infringed. Such orders might engage a person's Article 8 rights. However, it is considered that there would not be an infringement of such rights, particularly in light of the range of matters of which courts will have to be satisfied before imposing such orders. Enforcement orders do not amount to forced or compulsory labour under Article 4, because the unpaid work requirements would not be unjust or oppressive, as they would be imposed against the background of proposed sections 11I to 11M of the Children Act 1989, which include provision for warning the individual of the consequences of failing to comply with the contact order (see new sections 11I and 11K) and the requirement that the court be satisfied that "making the enforcement order proposed is necessary to secure the person's compliance with the contact order [and] the likely effect on the person of the enforcement order.. is proportionate" (see new section 11L). In addition, the unpaid work requirement falls within the exception in Article 4.3(d) of the ECHR (work or service which forms part of normal civic obligations), since it is in the general interest of the community, as well as of the individuals involved, particularly the child, that contact orders are obeyed. It is normal in our society to expect and require people to comply with orders made by the courts.

Part 2: Adoptions with a Foreign Element

92.     While a person's Article 8 rights might be engaged where there is suspension of intercountry adoption from a particular country, clause 11 makes provision for exceptional cases. In considering an application from prospective adopters that their case should proceed notwithstanding the suspension, the Secretary of State must take into account their Convention rights.

ANNEX A

Table of powers, duties and responsibilities which the Bill confers on the National Assembly for Wales