Children and Adoption Bill [Lords]

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Mr. Kidney: I am grateful to my hon. Friend for her powerful explanation of why amendment No. 38 could have the unintended consequence of getting in the way of contact. As for the code of practice, Parliament must always weigh up which organisations we can trust to devise their own codes—in the case of CAFCASS, it would be subject to scrutiny by the Select Committee on Constitutional Affairs—and those over which we should have a more direct influence, through the laying of codes of practice before the House so that Members can express an opinion.

I shall withdraw the amendment for two reasons. First, the code in the new clause ranges slightly too widely because of the screening element, which is no longer part of our discussions. Secondly, as I said in another context, my hon. and learned Friend the Member for Redcar would like to express her view on the matter. I shall keep my powder dry for her benefit. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clauses 8 and 15 ordered to stand part of the Bill.

Schedule 2 agreed to.

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Schedule 3


Question proposed, That this schedule be the Third schedule to the Bill.

Tim Loughton (East Worthing and Shoreham) (Con): I have a simple question about the schedule, which is very short and seems to revolve around the word “and”. Can the Minister explain what it does?

Maria Eagle: Schedule 3 makes two small repeals of words in the Children Act 1989 in order to enable the insertion of amendments dealt with elsewhere in the Bill, including amendments to provisions on family assistance orders in section 16 of the Children Act 1989.

The first is the removal of the word “and” from section 14B(1) for reasons of grammatical sense. The second is the repeal of section 16(3)(a), which gives effect to clause 6 on family assistance orders by removing the condition that they are to be used only in exceptional circumstances. We considered the policy when dealing with clause 6; schedule 3 is a minor consequential amendment. I hope that I have satisfied the hon. Gentleman’s need to know.

Tim Loughton: I am very satisfied, as nearly always, with the Minister’s answer. However, we are talking about later amendments to the Children Act 1989 that are not included in the version of that Act issued by the Vote Office. I reiterate an earlier comment, that it might be useful if Ministers were to make updates of the Children Act available to the Committee if amendments refer to specific parts of it. It is difficult to get hold of them otherwise.

Question put and agreed to.

Schedule 3 agreed to.

Clause 16

Regulations and orders

11.30 am

Question proposed, That the clause stand part of the Bill.

Tim Loughton: Owing to an oversight on our part, we have not tabled any amendments to this clause, although we might return to it on Report.

The clause is very powerful. It gives weight to all the regulations that the Secretary of State can make, and there are an awful lot of those. We have said that a lot of the detail is not in the Bill and that a lot of power is being given to the Secretary of State to make regulations, to which we are not privy at this stage, at her determination and at a later date.

Subsection (3) makes such regulations subject to the negative resolution procedure—that is, if hon. Members are fortunate enough to notice that the regulations are looming, they will have to pray against them. Given the detail missing and the amount of work that still needs to be done on the regulations, does the
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Minister not think that they should be subject to an affirmative resolution of both Houses so that hon. Members and noble Lords have the opportunity to debate them in more detail? We do not have the opportunity to do so now, because those regulations are not available in any draft form. Perhaps the Minister will consider that request and return to it on Report.

Maria Eagle: The hon. Gentleman, startlingly honest as ever, said that he forgot to table amendments to the clause—that, anyway, is my interpretation of what he said; perhaps I am being too cruel.

The clause is a relatively standard one, although the hon. Gentleman has legitimate questions to raise about it; I do not complain about that. It sets out how secondary legislation under the powers conferred by the Bill is to be made: any power to make regulations under the Bill should be exercisable by statutory instrument and make use of the negative resolution procedure.

The hon. Gentleman asked whether that was the right way round and whether the affirmative resolution procedure should be used. There is nothing exceptional about this use of the negative procedure, which is in line with how it is usually used. Given the nature of some regulations, affirmative procedures are at times more appropriate; at times the negative procedure is more appropriate.

The hon. Gentleman will know that there are conventions about such things. The Bill does not breach those. That may reassure him, although it may not. The Delegated Powers and Regulatory Reform Committee in the other place considered the implications of the regulation-making powers and was content with the Bill’s provisions, so there has been parliamentary scrutiny in that sense.

I accept the hon. Gentleman’s point: some Opposition Members always prefer regulations to be made by the affirmative procedure. However, the use of the negative procedure is not out of line with normal practice, and I hope that he accepts it on that basis.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.

Clause 17

Short title, commencement and extent

Tim Loughton: I beg to move amendment No. 9, in clause 17, page 17, line 36, leave out ‘Children and’ and insert ‘Child Contact and Intercountry’.

We now come to the heart and kernel of the Bill: the short title. In what is becoming something of a habit, I seek to amend the short title of a Bill that is about children and adoption. Amendment No. 9 would lengthen, although not excessively, the short title from the Children and Adoption Bill to the “Child Contact and Intercountry” Bill, a much more helpful and obvious description of what the Bill is about.

We should adopt the Ronseal principle—“Does exactly what it says on the tin”—to deliberations in Parliament, and I want to apply it to the Bill. I have led
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for my party on this Bill, as I did on the Adoption and Children Act 2002 and the Children Act 2004. There has been constant confusion in our deliberations, as there was when we debated those earlier Acts, about the legislation to which hon. Members are referring.

I did a little research and found that over the past few years the following legislation has been enacted that refers to children and adoption. It starts with the Adoption Act 1958, the Adoption Act 1960, the Adoption Act 1964, the Adoption Act 1968, the Adoption Act 1976 and the Adoption and Children Act 2002; and now we have the Children and Adoption Bill, which I presume will become an Act in 2006.

We next have the Children Act 1958, the Children Act 1975, the Children Act 1985, the Children Act 1989, the Children (Scotland) Act 1995, the Children (Leaving Care) Act 2000 and the Children Act 2004.

We also have the Children and Young Persons (Amendment) Act 1952, the Children and Young Persons (Amendment) Act 1986, the Children and Young Persons (Protection from Tobacco) Act 1991, the Children and Young Persons Act 1956, the Children and Young Persons Act 1963, the Children and Young Persons Act 1969, the Children’s Homes Act 1982, the Children’s Commissioner for Wales Act 2001, the Foster Children (Scotland) Act 1984, the Foster Children Act 1980, the Indecency with Children Act 1960, the Matrimonial Proceedings (Children) Act 1958, the Protection of Children (Tobacco) Act 1986, the Protection of Children Act 1978 and the Protection of Children Act 1999.

The Hansard reporter will be relieved to know that I will happily give her a list of those Acts after the debate. It is a serious point, however, because there has been an awful lot of legislation by all Governments over the past 50 years to do with children and adoption. There are many other similarly titled Acts. It seems sensible, with the addition of a few extra words, to name the Bill differently to predecessor legislation to do with children and adoption. People would then know instantly to which Act we were referring. That would avoid future confusion when hon. Members start talking about previous legislation.

It is a helpful, small, sensible and weighty amendment—weighty in terms of its implications, and small given the number of words involved. I hope that the Minister will leap up to welcome and embrace it, and that she will accept it for the greater good of working out which Act we are talking about.

Maria Eagle: Would that it were easy for me to leap and accept the serious points that the hon. Gentleman makes. I have much sympathy with them. However, despite the fact that I applaud his efforts to bring clarity to the statute book by clearly differentiating the various Acts, that is not the primary purpose of the short title. I am not able to accept the amendment, but I am happy to explain why, which is the next best thing.

Parliamentary counsel have some influence on short titles. They have to consider subject matter and scope. The short title gives an interpretation of the scope of the Bill, as does the long title. The difficulty with the short title proposed by the hon. Gentleman is that it does not legally or accurately reflect the contents of the
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Bill. As well as dealing with contact, it deals with family assistance orders, which may be made in any case with risk assessments, following the amendment made in the other place, and which may be ordered in proceedings other than contact proceedings. In addition, he seeks to add private fostering provisions to the Bill, which would further widen its scope. His suggested wording would not be an accurate description.

The hon. Gentleman’s description of inter-country adoption is not strictly accurate. He may be interested to know that parliamentary counsel deliberately avoided using that term because it is used in connection only with Hague convention proceedings. The Bill, of course, deals with countries other than those that are party to The Hague convention, so that phrase would not be appropriate; it would give the wrong idea of the Bill’s scope. Part 2 is therefore modelled on the terminology of the Adoption and Children Act 2002, which refers to adoption with a foreign element.

Although I have every sympathy with what the hon. Gentleman says, I can only tell him why I cannot accept the amendment. I assure him that the short title was carefully selected by parliamentary counsel in accordance with the usual parliamentary procedures and practices, so that it would be acceptable to the authorities of the House and do its job, which is to delineate the scope of the Bill. It may also have the slightly disadvantageous consequence of confusing us ordinary mortals further, in light of the long line of other Acts to which he referred. I hope that he will understand, even if he does not agree, why I cannot accept the amendment, and he may care to withdraw it.

Tim Loughton: As my hon. Friend the Member for Peterborough (Mr. Jackson) might have said, sympathy doesn’t butter any parsnips. I am devastated. The Minister had to dig deep to come up with ways of refuting this eminently sensible suggestion. She said that private fostering would not be covered by the title, yet she has set her face entirely against any suggestion of adding private fostering to the Bill. Indeed, she knows that private fostering amendments were ruled out of order and were not debated. That is a pretty limp excuse for not acceding to our suggestion.

Maria Eagle: I did not wish to be provoked, but I have been. I thought that I said that the hon. Gentleman was trying to add provisions, not that we were discussing them. His amendments would have had an even wider scope had they been accepted.

Tim Loughton: I had sought to do that but was frustrated, so any reference to those amendments is irrelevant to the case that the Minister makes against this amendment.

The Minister said that parliamentary counsel have a big influence on short titles. I dare not think how much we pay them to play around with a few words, when we could in effect do it for free. We would offer a great
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financial saving if the Government were to ask us to title future Bills rather than relying on highly paid parliamentary counsel.

The amendment is not entirely frivolous, but it is tempting to push it to a vote—the numbers on either side of the Committee are interesting, Mr. Hood, and we might have to rely on your intervention. However, I do not wish to tease the Committee any further. We have made our point. It is a shame that the Minister should come up with a load of hogwash in order to say why it is not eminently sensible, but eminently sensible things are not necessarily the Government’s hallmark. Reluctantly, therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Maria Eagle: I beg to move amendment No. 28, in clause 17, page 18, line 22, leave out subsection (9).

The amendment would remove the privilege amendment inserted in the other place. As hon. Members will know, it is the privilege of the House of Commons to control charges on public funds, a long fought-for privilege of ancient lineage, and one that we do not wish to give up. The privilege amendment avoids any formal infringement of that privilege. Provisions in the Bill that, but for the privilege amendment, would have the effect of creating, imposing or increasing a charge, were authorised by the money resolution, which was agreed to immediately after Second Reading. The privilege amendment may therefore now be removed.

Amendment agreed to.

Clause 17, as amended, ordered to stand part of the Bill.

New Clause 1

Extended family: welfare checklist

    ‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

      “(ga)   the desirability of contact between the child and his extended family in the absence of good reason to the contrary.”’.—[Mr. Stewart Jackson.]

11.45 am

Brought up, and read the First time.

Mr. Jackson: I beg to move, That the clause be read a Second time.

I am pleased to be serving under your chairmanship again, Mr. Hood.

Some hon. Members and particularly the Minister will know that I have taken an interest in extended kin parenting, particularly by grandparents. I was privileged to win an Adjournment debate on 18 January to discuss such issues and had quite a debate with the Minister.

The Government have missed a golden opportunity to address some important issues that impact significantly on extended family parenting, particularly by grandparents. I want briefly to raise two or three issues relating to that missed opportunity and to explain the rationale behind the new clause.

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The new clause is essentially a presumption in favour of extended family parenting. I believe genuinely that it would not in any way contravene the paramountcy principle—quite the opposite. I believe that it is in the best long-term interests of children, as any reasonable person would agree, given the significant evidence that children can, in the wake of a break-up of their parents’ relationship, benefit from contact with their grandparents.

Not much research has been done on the matter during the past few years, but I pay tribute again to the right hon. Member for Birkenhead (Mr. Field), who has done some local research among his constituents on the Wirral on the impact of the current legal system of family law on grandparents who choose to be de facto parents to their grandchildren. The system as they see it and as articulated by the right hon. Gentleman is loaded against them. I commend to the Committee the document prepared by Dr. Anne Gray of London South Bank university on the evaluation of the grandparent-toddler groups initiative, which strongly makes the case for grandparent and extended kin parenting.

I want to speak principally about three issues to which I hope the Minister will respond. In particular, I want to refer to undertakings that she gave during the Westminster Hall debate on 18 January. First, section 10 of the Children Act 1989 covers the requirement by family and friends carers to apply for a residence or special guardianship order. The Government have not sufficiently thought through the issues and the present system is significantly biased against family and extended kin members. More particularly, there is lack of parity between non-family and family members. That issue was discussed in respect of grandparents during the Westminster Hall debate. I look to the hon. Member for Stafford for support because he knows the area well and is broadly supportive of my underlying assumptions, if not the details of the new clause.

Secondly, I want to mention section 17 of the Children Act 1989 and the financial assistance given to extended family and grandparents vis-à-vis other carers. The arrangement is currently not being adhered to and has not, unfortunately, been addressed in the Bill.

Thirdly, I mentioned parity in respect of section 10 of the 1989 Act, but I should particularly like to consider section 8, regarding the need for a certain period of residence for a child with grandparents, as opposed to non-family carers. The Government had an opportunity to consider such matters in preparing the Bill, but unfortunately they do not seem to have made much progress in that respect, even though the Minister said:

    “The 1989 Act recognises that, even if there is parental opposition, it could be in the interests of a child to maintain contact with their grandparents. No one has a veto. The parent does not have a veto. Subject to the paramountcy principle, the court will take into account the importance of grandparents and other relatives to the lives of children.”—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 268WH.]

Mr. Kidney: In his plea for compatibility between grandparents, kinship carers and others, does the hon. Gentleman have regard to the requirement that the
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leave of the court needs to be given even before people can apply for a court order for a residence or special guardianship order? Is he aware that in the 2002 Act, foster carers now need only to have the child with them for one year before they apply without leave, whereas it is three years for grandparents and other kinship carers? Is he aware that proposed new clause 22, which I tabled but which was not selected for debate, deals with that point?

Mr. Jackson: That must rank as one of the most helpful interventions I have ever had. I thank the hon. Gentleman and pay tribute to his expertise on such matters. With all due respect to you, Mr. Hood, I am disappointed that we have not been able to discuss that new clause. It would have been nice to have focused on that issue, listened to the Minister and understood why it was not possible to introduce such provision. There is a presumption among many extended kin carers that the system is biased against them. Since the 2002 Act took effect, they certainly feel that strongly with regard to financial assistance, post 13 December 2005. It is unfortunate that we cannot debate the issue that was raised.

I should like to press the Minister on two points. During the 18 January debate on extended kin and grandparents’ access to grandchildren, she said:

    “Removing the requirement would immediately bring in formal parties to start court proceedings”

in respect of the requirement to seek leave. She went on to say:

    “I am not saying that that would happen in every case, but it could, and the court must have a way to screen cases if, knowing all the circumstances, it feels that proceedings are unnecessary.—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 269WH.]

Non-family foster carers and adopters do not have to go through that legal route. Indeed, they must only prove that the child has resided with them for 12 months, whereas family and extended kin have to prove that they have resided with the child for three years.

In addition, the costs have been estimated by the Grandparents Association as anything between £250 and £1,000. So a financial cost falls on people who may already be impecunious. The right hon. Member for Birkenhead mentioned constituents who were among the poorest people, but were forced to go through those legal loopholes. I should like to hear evidence from the Minister on why it is not possible for that legal hoop to be removed.

On 18 January, the Minister said:

    “The Department for Education and Skills is considering the issue, and I expect consideration to be completed sometime this year. I know that that is rather vague.”—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 269WH.]

I want to press her on that point. We need to focus on the welfare of the child, which is about extended family care. There is evidence that such care works in the best interests of children. At the moment, there is a perception of unfairness and of a lack of equity. Unfortunately, the Bill does not address that, and so will exacerbate that feeling of a lack of fairness and justice for a particular part of our community.

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I hope that the Minister can answer the questions put to her, not least those asked by the hon. Member for Stafford, and that we can go forward with an undertaking that those points will be taken on board. Two months ago, the Minister gave me a time-based undertaking, and I hope that she will think of that when she replies.

Mr. Kidney: I support the two points that the hon. Gentleman made about the imbalances, one of which is to do with financial support, while the other is the requirement for grandparents and kinship carers to obtain the leave of the court even before they start to make their application for court proceedings.

In my time as a solicitor before I was elected to Parliament, as well as in my time as a Member of Parliament, I have witnessed many cases of injustice to grandparents because of those imbalances. I can think of many times when grandparents have been deterred from getting involved in court proceedings because they would have had to pay double to do so. Even if before their son or daughter split from their spouse they had had lots of regular contact with their grandchild and that had gone down to zero, they found it difficult to muster the financial resources and the will to get involved in a court case not once, but twice—to get the leave and then go through the procedure of trying to get the order.

I can think of a particular case of such financial imbalance. I do not have permission to name the person involved, so I shall not. The woman in question stood by her grandson through thick and thin, and came to me, as her MP, many times about her financial hardship. Even with my assistance and that of a lawyer, she could not get some of the financial support that a parent or foster carer would have got. That was most unjust.

Mr. Jackson: Does the hon. Gentleman agree from his significant experience that the issue that we hope the Minister will face, and that would have been discussed had his new clause been selected for debate, is that if we reduced the legal requirement for everyone to a year, we could still screen out unsuitable people?

Mr. Kidney: I agree. A year is quite a long time to prove one’s ability to care for somebody, and if the period were reduced to a year, that would simply mean that there was no requirement to apply for leave. A person would still have to justify in court that they were entitled to the order.

In conclusion, the new clause perhaps does not say either of those two things, and says something different, but I shall be interested in the Minister’s response on those two points about imbalance.

Mark Williams: I support the new clause moved by the hon. Member for Peterborough. One almost feels that, given the lack of wording mentioned by the hon. Member for Stafford, one is debating something that is not there. However, as far as the wording goes, I reiterate our support for the new clause, which seeks to recognise the growing and important role played by
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the wider family in the life of a child. We all know that in this changing society grandparents and the wider family have a huge role to play, not just potentially in the 10 per cent. of cases with which the Bill deals. I hope that the financial injustice about which hon. Members have spoken and the perception that the system is biased and is not working in favour of grandparents can be addressed, whether by the new clause or at a later stage.

12 noon

Maria Eagle: I shall do my best to stay in order and within the scope of the Bill. It is important that we try to do that.

The new clause would require the court, whenever it considers a disputed application for a section 8 order under the Children Act 1989, to have regard to

    “the desirability of contact between the child and his extended family”.

I agree with hon. Members who have stated that contact with grandparents and other members of extended families can be hugely valuable to children in the aftermath of a family break-up. Contact of that nature can help to provide much-needed stability and support at a time of great turbulence, uncertainty and difficulty for children who are having to deal with their parents’ break-up. I am sure there is no disagreement about that across the Committee.

There are several difficulties with the new clause, the most important of which concerns its phrasing. It refers to the desirability of contact in the absence of evidence to the contrary. The hon. Member for Peterborough asserted that he did not think that would have any impact on the paramountcy principle. However, because of the way in which the proposal is worded, it would effectively create a legal presumption. As the hon. Gentleman does not set any limit on what he means by “extended family”, the court would have to presume that contact with all relatives, however distant, is desirable unless it is presented with strong evidence to refute that.

I understand the impulse, and I heard the hon. Gentleman and other Committee members say that they wanted to discuss slightly different things. The wording of the new clause is simply not compatible with a starting point that considers the welfare of the child in their individual circumstances and ordering what is best for them, as the 1989 Act currently provides.

A second problem is the location of the new clause, amending as it would the welfare checklist, which applies not only in private law cases and disputes, but in public law, for instance in relation to care orders. The new clause would require a court considering whether or not to take an abused child into care to presume that contact with their wider extended family—the concept is not at all delineated; we might be talking about an extremely extended family—would be desirable. Of course, it might be desirable in a public law case; a child whom a court is considering taking into care might greatly benefit from continuing contact with their birth family extended beyond their
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parents. However, it is not appropriate to force a court to presume that in advance of considering the evidence.

The practical difficulties with the wording of the new clause mean that I am unable to accept it. I am also worried by the lack of clarity to which I have alluded. The new clause does not set out where the “extended family” comes to an end. Certainly, most children should have contact with their grandparents and most probably do. They get great value from that, as do their grandparents. Most children should also have contact with aunts, uncles, cousins and relatively close extended family, but not all will necessarily be in touch with more distant relatives. It might well not be in their interests for an extremely distant relative to have a right to contact as the new clause suggests. It is not appropriate for us to put into the Bill an undelineated phrase which could be so extensive, as that would destroy clarity and cause all kinds of confusion. It is also unhelpful that the provision would apply in public law cases.

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