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Baroness Andrews: We fully appreciate the intention behind the amendment. We have moved on to Chapter 3 and this clause whets our appetite. We are getting to the heart of the process, which is where we want to see the changes which will benefit children.
The clause does not deal with the process of decision-making leading up to placement. It is a framework clause essentially. Its purpose is to make it clear that adoption agencies may only place a child for adoption if they have the consent of the parents or, otherwise, under a placement order. I am sympathetic to what the noble Lord said. I want to reassure him that the intention is that an adoption agency should place a child for adoption only where it is satisfied that the child ought to be placed for adoption. In coming to this decision, the full range of powers and requirements under Clause 1 will bind the agency in that respect.
The Bill follows the existing practice of the Adoption Act 1976. That Act did not set out on the face of the Bill any reflection on process or concepts of what ought to be considered. The process for decision-making by adoption agencies will be set out in regulations, as it is indeed in the current regulations under the 1976 Act. We have reproduced the process which has been in place for 25 years.
As noble Lords know, the process at the moment is that where, as a result of a case review, a local authority is considering adoption for a child it is looking after, or a voluntary adoption agency is considering placing a child for adoption, the first step is to refer the case to the adoption panel, an independent panel made up of specialist and lay people. The panel makes a recommendation to the authority or to the voluntary agency as to whether adoption is indeed in the best interests of the child. It is then up to the authority to decide whether to accept that recommendation. If it does, at that point the authority is satisfied that a child ought to be placed for adoption.
The new regulations will set out a similar process. In the context of the Bill, the decision that the agency is satisfied that the child ought to be placed for adoption should be made before a child may be placed with the consent of the birth parents. Again, that is what the regulations will provide. They will also provide requirements to consult the child directly throughout the decision-making process, to record his or her views, and to ensure that they are taken into account, for example, in panel decisions.
Under the provisions of the Bill in Clause 1, the child's welfare is, as we have said many times already, the paramount consideration. The duty is to bear in mind the harmful effects of delay in decision-making. The welfare checklist set out in that clause will apply throughout the decision-making process.
Where a local authority is satisfied that, as a result of this process, a child ought to be placed for adoption but the parents do not consent, the agency should
consider also the significant harm that might occur and that the threshold is met. Under Clause 21(1), it will be obliged to apply for a placement order. Therefore, I want to reassure Members of the Committee that our intention has been that there should be a proper decision-making process—there is no question about that—in the adoption agency that determines and to the agency's satisfaction. It is in the best interests of the child to be placed before any placement happens.That said, however, I can see that there is some advantage in what the noble Lord has said as regards absolute clarity. One of the things we are trying to do in this process in the new Bill is to make absolute clarity as regards process and choice for parents and children. Therefore, the Government are certainly willing to consider the points raised by the amendment. We shall look at the proposed wording in detail and any wider implications of making a change along the lines proposed with a view perhaps to returning to this issue on Report.
4 p.m.
Lord Northbourne: Perhaps I may widen the question and ask whether we shall have an opportunity to see the guidance before the Bill is passed, because I suspect that there are a number of points of detail that some of us may wish to look at and think about.
I wish to raise one issue on this amendment, although it is not appropriate to it. I confess that I thought of setting down an amendment about it but could not see how to do so. There is, rightly, a great deal of emphasis on the welfare of the child. My wife sat for many years in the juvenile courts and she made the point to me that when you take a woman's child away you destroy that woman. Therefore, we ought to build somewhere into the machinery support, counselling and consideration for that woman's position.
Baroness Andrews: The commitment of the noble Lord to the welfare of children is well known in this House, and I take entirely the points he has made. We have had discussions on the regulation-making process and I wish to assure him that there will be a full consultation process. We have two years to ensure that before the Act comes into effect the regulations are as sound and as inclusive as possible. So in that process, the concerns that he has raised will be addressed.
As regards the seriousness of the choice which is being made by the woman or, indeed, the family giving up a child for adoption, we are very seized on that. When we come to discuss in the next clauses the placement with consent, we shall be saying how seriously we are addressing the whole question of the negotiation which goes on with parents to ensure that they know full well what they have agreed to do and the counselling that can be provided in that process. I hope that that will satisfy the noble Lord.
Lord Clement-Jones: I call that a splendid debut for the noble Baroness on the Bill. I know that Ministers
do not lightly bandy around words like "sympathetic", and I was waiting for the point where I was going to be let down. However, having taken us through a very considered view of the process which is again to be enshrined in regulations, to find that the noble Baroness still believes that there is room for improvement on the current wording is extremely heartening. That bodes well for the clarity of this chapter in the Bill, which we shall debate at greater length as regards the content. I am pleased that the Minister accepts the fact that there is room for improvement on the wording, even after 25 years of use of the Adoption Act 1976. I look forward to seeing how the Minister's considerations progress between now and Report and in the meantime I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Clement-Jones moved Amendment No. 51A:
- Page 12, line 17, leave out "section 18 or"
The noble Lord said: We now come to the meat of Chapter 3 and on all sides there are a considerable number of concerns about the provisions in the Bill regarding placement orders and placement by consent, particularly in relation to potential conflict with the Children Act and the unnecessary complexity regarding the implications of parents giving consent to placement.
I offer three examples. In circumstances where a parent consents to adoption and subsequently changes she mind, she cannot remove the child even if the child has not been placed for adoption. It may be reasonable for there to be some delay in cases where the child is placed with adopters but it is hard to see the reason for delay where the child has not even been so placed.
In situations where a relinquishing mother consents to the adoption placement and obstructs the local authority from ascertaining the views of the father without parental responsibility and the wider family, the adoption agency faces the dilemma of whether to place with consent or insist that the father and possibly the wider family are consulted.
The third example is where a birth parent can give consent to placement even before the child is six weeks old but could then be committing a criminal offence if she changed her mind and tried to take the child home.
There are huge complications in this section of the Bill. Members of the Committee will remember that a chart was issued with the Explanatory Notes and most will have seen that and will appreciate the sheer complexity. This set of amendments tries to reduce that complexity. The aim of the proposed amendments is that there should be a placement order in every case, including where the placement is by consent. The advantages of this would be that the significance of the decision being made by the parents in consenting to a placement would be underlined to them. That is particularly important in view of the restrictions placed by the Bill on the parents' ability to withdraw their consent and contest the making of the adoption order.
The complicated provisions contained in Clauses 29 to 31 and 33 would not be needed. It would enough to provide that the making of a placement order operated to remove the parents' right to remove the child without the leave of the court. The child and prospective adopters would have greater protection against disruption of the placement. Any outstanding issues or queries about, for instance, the involvement of fathers without parental responsibility or wider family members could be resolved by the court prior to the child's placement. Such a course is advocated by the president of the Family Division In Re H and In Re G. Under the Bill's scheme, there is no recourse open to an agency, other than invoking the inherent jurisdiction of the High Court, in addressing the dilemma facing it when a mother refuses to agree to the involvement of a father without parental responsibility in making plans for a child.
Although on the face of it having a placement order in every case may appear to create extra delay and expense, on these Benches we do not believe that this will occur in practice for the following reasons. If the consent is genuine, the court hearing can be brief and fitted in, for example, early in the court day without unnecessary delay. Moreover, if the consent is not genuine or is confined to the mother only, but the father or members of the wider family wish to care for the child, it is appropriate that that is ascertained and adjudicated upon by the court before the placement is made, as envisaged in Clause 1. Otherwise, delays may occur at the adoption hearing, when father or wider family may be making applications for contact or residence orders.
Issues about the extended family or father without parental responsibility being able to care for the child need to be able to be raised in order to ensure compatibility with the European Convention on Human Rights. While the agency, if it follows good practice, will consider these issues—or should have done so—a court hearing before authorisation is given to place the child will provide the opportunity for them to be raised in a judicial forum. If they are not raised until the final adoption hearing, not only will this cause delay but it will almost certainly be damaging for the child and distressing for the adopters.
Other amendments relating to Clause 20 are designed to enable the court, in certain circumstances only, to limit the placement order to a power to place with specific adopters named in the order. The situation envisaged is one where the child is already living with the family which it is proposed should adopt him or her.
Where a child has been placed with foster carers and, after some time, it becomes apparent that they are the most suitable permanent placement for the child, and they and the local authority wish the placement to become an adoptive one, it seems appropriate for them to be identified in the placement order. The court might be willing to endorse a plan for the existing foster carers to adopt while being reluctant to make a generalised placement order. If for some reason the adoption by the foster carers did not take place, it
would surely be appropriate for the court to be asked to consider the changed circumstances before making any new placement order. I beg to move.
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