| Previous Section | Index | Home Page |
4.45 pm
Amendment No. 2 would require the Secretary of State to consult the Hague conference on private international law before making an order to impose special restrictions on a country that had ratified or acceded to the Hague convention. I assume that the intention is for the Secretary of State to consult the permanent bureau, which acts as the secretariat to the Hague conference, rather than the 65 member states that make up the conference. When concerns are raised regarding a Hague convention country, they should
indeed be raised with the permanent bureau, which would generally expect to act as a mediator to help to resolve the situation. It can and does do that. In 2003, the permanent bureau convened a meeting of contracting states to discuss with Guatemala how concerns about adoptions from that country could be addressed.
We have a good working relationship with the permanent bureau and we understand that it would both expect and—importantly—be happy to be consulted. I can therefore reassure the hon. Gentleman that amendment No. 2 is not necessary, because we already use the mechanisms of co-operation managed by the permanent bureau. However, for the same reason that relates to amendment No. 1, there might conceivably be cases in which we will need to act quickly and do not want to risk the delay of consulting the permanent bureau. We would therefore not want a statutory obligation to consult in all cases—in case one of those exceptional circumstances should arise.
Amendment No. 4 would require the Secretary of State to establish a procedure to consider appeals against the decision to introduce special restrictions. It is only right that there are appropriate checks and balances on the powers of the Secretary of State, but I can assure the hon. Gentleman that they are in place without the need for the amendment. First, following the recommendation of the House of Lords Delegated Powers and Regulatory Reform Committee, clause 9(4) was amended to provide that the Secretary of State’s declaration that special restrictions will apply shall be made by order. That means that the order that declares that special restrictions are to apply is subject to the usual parliamentary scrutiny and could be annulled under the negative procedure in Parliament.
Secondly, when special restrictions are in place, it would also be open to anyone to make representations to the Secretary of State, which he would have a duty to consider. Clause 10 requires the Secretary of State to keep the special restrictions under review and, if he no longer has concerns over practices in the relevant country in connection with adoption, the restrictions must be removed. The consideration of representations would form part of the review of a restricted country and consideration of its removal from the restricted list. Thirdly, the introduction of special restrictions is an administrative decision made by the Secretary of State and, as such, will be subject to the supervisory jurisdiction of the High Court. Application for a judicial review is therefore also available as a course for challenging the Secretary of State’s decision to introduce special restrictions. As we know, that has happened; there has been a challenge in the past.
Clause 11 already provides a mechanism for individual prospective adopters to argue that their application should proceed, despite the special restrictions. Cases will be decided on their merits after consideration of the prevailing circumstances and the best interests of the child concerned. Several examples of that were fleshed out in Committee. Given all the protections that are in place, there is no need to add a statutory framework for appeals.
I am happy to say that amendment No. 22, which would require regular reviews of decisions to impose special restrictions, is not necessary. Clause 10(1) will
explicitly require the Secretary of State to keep under review whether any country on the restricted list should remain as such.
Tim Loughton: Yes, clause 10(1) will indeed oblige the Secretary of State to keep the matter under review, but it will not oblige him to publish his findings. We do not know the form that the internal review might take. We are trying to make the point through the amendment that a much more transparent system is needed so that people who wished to adopt, or whose prospective adoption was interrupted by a suspension process, could be kept fully in the loop. The amendment would mean that everyone could be assured that the reasons for suspending a country were valid while the suspension was in place.
Mr. Dhanda: The hon. Gentleman makes a fair point. It is in the interests of the Secretary of State and all of us to ensure that these matters are in the public domain and are fleshed out as far as possible. The Bill’s provisions are sufficiently strong for us not to require anything further in statute. The hon. Gentleman asked a specific question about China, to which I will ensure he gets a quick response. I understand that the Department for Education and Skills has been in dialogue with its Chinese counterparts and we are hoping for a conclusion to be reached sooner rather than later.
Amendment No. 23 would require that before revoking a declaration of special restrictions, the Secretary of State would have to consult prescribed organisations involved in adoption, as well as colleagues in Wales and Northern Ireland. As I have said already, there are good administrative reasons why consultation with the devolved Administrations is appropriate when making or revoking declarations of special restrictions. There might well be occasions when organisations involved in adoption that might know something about the circumstances in the relevant country would be consulted before revoking a declaration, but that will not be necessary in every case, so we should not put a blanket provision in the Bill. There is a commitment that such consultation will take place when we can glean additional information that will give us more knowledge of what is happening on the ground to assist the Secretary of State to make a decision.
As I said at the outset, I am grateful to the hon. Members for Mid-Dorset and North Poole and for East Worthing and Shoreham for giving me the opportunity to clarify our position on an important, yet not uncomplicated, set of provisions. I hope that I have been able to offer sufficient reassurance about our intention to be transparent, which is especially important in this area of work, and our use of the provisions. We will be guided at all times by the objective of safeguarding children, which we all support. On that basis, I hope that the hon. Member for Mid-Dorset and North Poole will withdraw the new clause.
Annette Brooke:
I will not press new clause 3 to a Division. I take heart from the Minister saying that the matter can be kept under review because I am sure that if the appropriate agencies have such evidence as is
feared, they will feel able to contact the Minister directly. I am not entirely convinced that the transparency and openness will be as great as Opposition Members would like, but, with those few comments, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
‘After section 1(1) of the Children Act 1989 (c. 41) insert—
“(1A) In respect of subsection (1)(a) the court shall, unless a contrary reason be shown, act on the presumption that a child's welfare is best served through residence with his parents and, if his parents are not living together, through residence with one of them and through both of them being as fully and equally involved in his parenting as possible.”'.— [Tim Loughton.]
Brought up, and read the First time.
Tim Loughton: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: New clause 9— Reasonable contact: no order principle—
‘After section 1(5) of the Children Act 1989 (c. 41) insert—
“(6) The “no order” principle in section 5 shall be construed subject to section 1A of this Act whereby it shall be presumed that making an order for reasonable contact with the parents is, in the absence of good reason to the contrary, better for the child than making no order at all.”'.
New clause 11— Provision as to family assistance orders—
‘In the circumstances where a family assistance order is made, the officer concerned will proceed on the presumption that the child's interests are best served through reasonable contact with both his parents unless good reason to the contrary is shown.'.
New clause 12— Reasonable contact: welfare checklist—
‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—
“(h) the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary.” '.
New clause 13— Presumption of reasonable contact—
‘After section 1(1) of the Children Act 1989 (c. 41) insert—
“(1A) In respect of subsection 1(1) above and subject to the welfare of the child, the court shall act on the presumption that the child's interests are best served through reasonable contact with both his parents in the absence of good reason to the contrary.” '.
New clause 16— Extended family: desirability of contact—
‘After section 5 of the Children Act 1989 (c. 41) insert—
“5A Extended family: desirability of contact
(1) Where an order with respect to a child is made by the court the court must take into account the desirability of contact between the child and his extended family.
(2) Subsection (1) will not be taken into account by a court if it conflicts with any welfare requirements in Section 1.”'.
New clause 17— Non-resident parents—
‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—
“(h) the importance of sustaining a relationship between the child and a non-residential parent.” '.
New clause 18— Statutory objectives—
‘(1) In discharging their respective functions in connection with any proceedings in which the court is considering whether to make provision about contact with a child—
(b) the Children and Family Court Advisory and Support Service; and
(c) the parties' legal representatives (if any)
must, so far as is reasonably possible, act in a way that is compatible with the objectives set out in subsection (2).
(2) The objectives under subsection (1) are—
(b) reduction of the risk of harm;
(d) post separation parenting.
(3) The welfare of the child applies in all respects as set out in section 1 of the Children Act 1989.
(4) “Reduction of the risk of harm” means that the safety of children and other persons involved in contact arrangements should be assessed and planned for and the danger of violence should be minimised.
(5) “Reasonable contact” means the promotion of ongoing contact between a child and his parents and other family members to an extent that is reasonable having regard to the facts of the individual case.
(6) In having regard to post separation parenting the court, the Children and Family Court Advisory and Support Service and the parties' legal representatives (if any) shall promote the desirability of co-operation between parents in the making of arrangements for any child contact.
(7) In applying these objectives the court, the Children and Family Court Advisory and Support Service and the parties' legal representatives (if any) shall have regard to the contribution that mediation may make to achieving them.'.
New clause 19— Applications for contact orders (grandparents and family carers)—
‘(1) In the event of an application to a court for an order permitting contact with a child by—
(a) a grandparent of the child; or
(b) a relative with whom the child has lived for a period of at least one year,
the application may be made without the leave of the court.
(2) The period of one year mentioned in subsection (1) need not be continuous but must not have begun more than three years before, or ended more than three months before, the making of the application.
(3) The Secretary of State may by regulation amend section 10 of the Children Act 1989 in accordance with the provisions of subsections (1) and (2).'.
New clause 24— Presumption of reasonable contact in the absence of good reason to the contrary—
‘After section 1(1) of the Children Act 1989 (c.41) insert—
“(1A) In respect of subsection 1(1) above, subject to good reason to the contrary and where the safety of the child is not an issue, the court shall act on the presumption that the child's interests are best served through reasonable contact with both of his parents whether or not he is resident with either parent.
(1B) In determining what “reasonable contact” is in respect of subsection (1A) the court shall have regard to the desirability of—
(a) contact facilitating a positive and fulfilling relationship between the parent and the child;
(c) contact lasting for lengthy time periods;
(d) contact with siblings; and
(e) contact with extended family.”'.
New clause 25— Default contact arrangements—
‘Schedule (New Schedule 1) (which makes provision for default contact arrangements) has effect.'.
New schedule 1— Default contact arrangements—
1 (1) This Schedule applies where two persons having parental responsibility for a child under the age of 14 years are at the commencement of this Act living or thereafter commence to live in separate households from each other.
(2) In this Schedule the “resident parent” means that person with parental responsibility for a child specified under sub-paragraph (1) who is principally resident in the same household as the child; the “non-resident parent” shall mean the other person, with whom the child does not reside.
(3) The provisions of this Schedule are entirely without prejudice to the responsibility of the resident and non-resident parents in any case to which this Schedule applies to make such agreed arrangements for contact with the child as they may decide are appropriate in the child's best interests.
(4) In any case to which this Schedule applies in it shall be the responsibility of both the resident and the non-resident parents—
(a) to endeavour to reach agreement as to such arrangements for contact or,
(b) if they are to give effect to the default contact arrangements set out in paragraph 4 below, to endeavour—
(i) to ensure that the default contact arrangements operate smoothly;
(ii) to reach agreement as to the detailed implementation of the default contact arrangements; and
(iii) to reach agreement as to such variations to the default contact arrangements with regard to dates, times and delivery and collection arrangements as may be appropriate to suit the circumstances and commitments of the child, any sibling of the child, the resident parent and the non-resident parent.
(5) On any application to a court for contact with any child the way in which the resident and non-resident parent have each discharged the responsibility set out in paragraph 1(4) shall be a circumstance which it shall be relevant for the court to consider.
2 In any case where the resident parent and the non-resident parent commence living in separate households after the commencement of this Act they shall be deemed to have agreed upon such separation to the arrangements for contact between the child and the non-resident parent set out in paragraph 4 below (“the default contact arrangements”) and such arrangements shall be put into effect from the date of such separation unless and until either—
(a) the resident parent and the non-resident parent have agreed alternative arrangements for such contact; or
3 In any case where the resident parent and the non-resident parent are already living in separate households at the commencement of this Act they shall be deemed to have agreed at the date of such commencement to the arrangements for contact between the child and the non-resident parent set out in paragraph 4 below (“the default contact arrangements”) and such arrangements shall be put into effect unless and until either—
(a) the resident parent and the non-resident parent have agreed alternative arrangements for such contact; or
4 The default contact arrangements to which paragraphs 2 and 3 above refer shall be as follows—
(1) In the case of an infant under one year old, the child shall visit the non-resident parent every Sunday between 9 a.m. and 5 p.m.; and the resident and non-resident parents shall share responsibility for transport of the child between their homes.
(2) In the case of any child who has attained the age of one year but is not yet in full-time education, the child shall—
(a) stay with the non-resident parent on alternate weekends from 10 a.m. on Saturday until 5 p.m. on Sunday;
(b) visit the non-resident parent from 2 p.m. until 5 p.m. every Wednesday;
(c) stay with the non-resident parent for seven weeks' holiday per year, on dates to be agreed between the resident and non-resident parents or, in default of such an agreement, determined by a court; and
(d) the resident and non-resident parents shall share responsibility for transport of the child between their homes.
(3) In the case of any child in full-time education who has not yet attained the age of fourteen years, the child shall—
(a) stay with the non-resident parent on alternate weekends from after the child finishes school on Friday until 6 p.m. on Sunday;
(b) visit the non-resident parent from 4 p.m. until 6 p.m. every Wednesday;
(c) stay with the non-resident parent for seven weeks' holiday per year, of which at least ten days shall be in the Christmas school holidays, ten days shall be in the Easter school holidays; and the balance in the summer school holidays, the precise dates to be agreed between the resident and non-resident parents or, in default of such agreements, determined by a court; and
(d) the resident and non-resident parents shall share responsibility for transport of the child between their homes and/or the child's school.
5 This Schedule shall not apply in circumstances where allegations of child abuse are made in such form as the Secretary of State may by order prescribe.'.
Tim Loughton: We come to the guts of the main part of the Bill. In the absence of any signs to the contrary, I shall speak, first, generally to the thrust of the new clauses before going into detail.
New clause 4 goes to the heart of the principle that we think should be set out in the Bill. If the Government agreed to the principle that is enshrined in the new clause, they would, at a stroke, remove the major objections to why the Bill, in its current form, will not work and why it will prove to be a damp squib, as we have warned all along. The principle is clear: it is that a child’s welfare and interests are best served by both his parents being as actively involved in his upbringing as possible unless there are good reasons to the contrary that pose a risk to the safety of that child. That rider runs through every amendment that the Opposition have tabled to the Bill throughout all stages of its consideration.
The new clause and the associated new clauses are not about parents’ rights. We have not once addressed the Bill in terms of parents’ rights. The new clauses are not about treating a child as some accessory or commodity whose ownership should be tightly defined and whose diary should be artificially prescribed on a rota basis between each of his parents. The new clauses are not about compromising the paramountcy of the welfare of the child as set out in section 1 of the Children Act 1989, some 17 years ago. That piece of legislation is as relevant and valued today as it was when it was first debated in the House.
| Next Section | Index | Home Page |