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Earl Howe: I very much support the principle underlying this part of the Bill, which is to ensure that where a child is being considered for adoption as far as possible the question of parental wishes about the child's future is addressed prior to placement for adoption. The main point about tackling matters in that way is that once the issue of parental wishes has been dealt with, the child and the prospective adopters will enjoy reasonable security from that time on until the final adoption order is made.

While that concept may appear to be perfectly suitable in many cases, we have to be extremely careful about it. The consequences of parents giving their formal consent are so serious that I question whether a purely administrative procedure is really sufficient to safeguard the child's welfare and the parents' rights. I say that for one principal reason. Although the noble Lord, Lord Clement-Jones, raised a number of reasons, the principal reason is the finality of the parental consent. If the parent agrees and subsequently changes his or her mind, he or she cannot remove the child even if the child has not yet been placed for adoption. As I understand it, that is a correct reading of Clause 29.

The adoption agency will have assumed parental responsibility for the child and the agency can then restrict the ability of the parents to exercise parental responsibility. Furthermore, where parents have consented only to placement in principle but have never given their consent to the proposed adoption order, they will be unable to oppose the making of the final adoption order unless the court gives them leave to do so because of a change in circumstances, as detailed in Clause 46. In other words, the court may never have to consider whether the parents' consent to the proposed adoption has been given or should be dispensed with.

The noble Lord, Lord Clement-Jones, helpfully went through various circumstances where the Bill, in his opinion—and, indeed, in mine—falls short in this general area. The amendments that he has tabled are an excellent way of addressing those deficiencies. I myself tabled a broad, probing amendment to leave out Clause 18, which was designed to tease out these precise points. It is better, however, if we roll the whole debate into one.

There is an answer, and that is that, even in cases where placement is by consent, all children relinquished for adoption should be the subject of a placement order. I shall not repeat the reasons but it seems that the rather complicated provisions in the Bill at Clauses 29 to 31 would not be needed if we went down that road. As the noble Lord emphasised, the full import of the decision being made by the parents would be brought home to them in an unequivocal way.

The European Convention on Human Rights requires that family members must be given access to a forum in which they can express their views about the

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proposed severance of the child from his or her birth family. I think that that is yet another reason why these amendments are worthy of serious consideration.

Baroness David: I have put my name to these amendments, and I should like to give strong support to the case made by the noble Lord, Lord Clement-Jones, which was so ably spoken to by the noble Earl, Lord Howe. We must remember how irrevocable adoption is, and the thought that a perhaps very young person can give consent to adoption and that the placement order can then go through is not good. We have to take every care that, whoever the mother is who might be relinquishing a child, a great deal of thought is given to that decision. The plans made in these amendments are very good, and I hope that the Minister will give them a very sympathetic hearing.

4.15 p.m.

Lord Campbell of Alloway: I support the amendments in principle. However, let there be no misunderstanding that placement does not pre-empt the situation of the parent. It does not do so in relation to adoption, as Clause 46(2)(c) makes it perfectly plain that the court must be satisfied that,

"the parent's or guardian's consent should be dispensed with".

That involves a full hearing, and was the subject matter of the leading authority, In Re W, to which I referred on Second Reading. I shall not refer to it again.

It is a fully protective procedure for parents in the sense that they will be heard and their representations will be entertained. However, that is against the paramount requirement of the interests of the child and not the paramount interests of the blood tie, the parent. Subject to that, which is retained in Clause 46, one cannot say that there is no satisfactory protection at the adoption stage because of the placement. However, I support the amendments.

Baroness Howarth of Breckland: I ask for the Minister's help as I find this a complicated process to think through from the practitioner's point of view. I am sure that other practitioners are probably struggling with this too.

We seem to have two elements twisted together. The first is the issue of whether there should be a placement order in absolutely every situation. Despite my practice and my views about the paramountcy of the child's needs, I am not at all sure that in every single situation we should go through the full paraphernalia of court appearance. Having spent a great deal of time in court, I know that even the most sympathetic courts can be extremely distressing for even the most sophisticated families. These are not usually the most sophisticated families.

Nevertheless, what we are trying to tease out in relation to these amendments are some of the principles throughout Chapter 3. That is why it is quite difficult to grasp one thread without considering some of the others. Although I did not manage to get to my feet to speak earlier, as there did not seem to be an opportunity, I support the previous amendment moved by the noble Lord, Lord Clement-Jones—to

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which I think the Minister was sympathetic. I support it not so much because I think that process is always a good thing to include in a Bill, but because that particular amendment spells out the real need to look at the detail of what happens before the child is placed for adoption. That is my difficulty in relation to these amendments.

Adoption is one point in a child's life at which there is complexity. It is part of the total childcare aspect of the child's situation. In dealing with the complexity that continues in terms of placement, we need to ensure that the needs of the child's birth family have been considered. I take the view that there are many families where one cannot continue to keep a child with the family. I have worked with women who would have liked to have kept their child had we been able to provide other services—which I think that we would provide, post-adoption, to a family who adopts a child. There are some real issues that we are not teasing out because we are not addressing them in a more global way.

Another part of the Bill suggests that the family will not then be able to remove the child even if it is not placed for adoption. My concern is that, if we go for a placement order in every case, short of changing provision in the Children Acts, we shall not be providing the opportunity for that family to have another go at looking after their child. This is where the conflict with which I am struggling arises with the Children Acts. I am not a lawyer, and I find this quite difficult to tease out. As a practitioner, however, it is terribly important that we look at the situation of the child, the birth family and the adoptive family, and find a simple route through to the best solution for the child. Like most noble Lords, I find this route extraordinarily convoluted.

Baroness Andrews: I am grateful for the thoughtful comments from all sides of the Committees. Noble Lords are quite right: this is a very serious process. Although I would dispute that it is as complex as has been described, it is truly important that we are clearer about what we intend to do. I shall take the time, if I may, to address all the amendments and look in some detail at some of the issues which have been raised. I hope that I am able to answer some of the points and concerns that have been raised in relation to, for example, consultation with the wider family and potential conflict with the ECHR.

I shall try to explain the context of our thinking on placement. The Bill tries to achieve two objectives. The first is to put in place, for the first time in law, the concept of placement itself, which entails a clear process for involving the birth parents, the agency and the adoptive parents, as well as the child, and putting that within a clear legal framework where none has existed before. In so doing, we seek to put in place a new arrangement of rights and responsibilities which come into interaction with each other at different parts of the process, to strengthen both the rights of the birth parents in different ways, the security of the child in different ways, and the rights of the adoptive parents

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to act as successful adoptive parents. It makes the process clearer, more deliberate, fairer and more secure.

The second objective is to make the process of placement more appropriate and responsive to different situations. These children come from families with different family histories and different circumstances and prospects. They might have been in care, or they might have been fostered or living in situations at risk. They are all individual children with a different set of circumstances to be considered, and with a different set of responses from the family.

We are not trying to create through the placement process a fast track or a casual track just to meet some arbitrary target. We are not seeking to do that at all. We are trying to create two processes which are equally sensitive. One is to do with parents who are consenting to the process, involving the children who are now in voluntary accommodation. For the other set of children, there is no parental consent. Their placement will involve a serious set of negotiations with many people. It is a potentially long process, but it has built-in safeguards for everyone involved.

I hope that noble Lords will agree in due course that we struck the right balance. The amendments propose some fundamental changes to that balance. We therefore need to be clear about what we are doing. In summary, they would remove the current provisions for placement with parental consent in Clause 18. They would require that a placement order was made for every placement on adoption no matter what the family circumstances.

Before I consider the amendment, I would like to take Members of the Committee back briefly over the history. The Bill has been in development for a decade or more. Many of the arguments have been held by practitioners in relation to successive governments. Much thought has gone into how best to improve the process after all these years. The proposals have evolved through successive consultations—and it has been a genuinely inclusive process—in 1993, 1994 and 1996 and during the passage of the Bill. The main aim is to resolve the substantive issues relating to consent. We believe—and we are informed about this; this is what the practitioner body says—that the current legal process leaves too much of the process of negotiation to the final adoption hearing. The placement system aims to improve on this in three main ways.

First, it aims to give greater certainty and stability to children by dealing as far as possible with the bulk of issues that are really problematic for families around consent to adoption before they have been placed, so that placement occurs not at the end but a good way through the process, rather than at the beginning.

Secondly, we aim to reduce the extent to which birth families are faced with a fait accompli at the final adoption hearing, when all they are faced with is the ability to say, "No, we have changed our minds". By that time a child will have been with adoptive parents for some time. That is a significant additional safeguard for the birth parents in current legal

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framework. Under the Bill, parental consent must be sought before the child is placed for adoption. Either they must consent or the courts must decide to dispense with their consent in making a placement order. That arises later in the Bill and there will no doubt be animated discussion on conditions for dispensing with consent. In the context of these clauses, we are dealing with the process at this point. Either way, the issue must be addressed and resolved before the child is placed with prospective adopters.

At present, there is no legal concept of authorisation to place dependent on parental consent. There is no requirement to seek parental consent before an adoptive placement is made. We have a situation, for example, where a child may have been in care under a care order and originally the intention might have been that that child be rehabilitated with his original parents. But circumstances change. Often the plan will move to adoption. The agency, the social workers involved, will discuss the matter with the family and they will decide that the time for rehabilitation is gone and that adoption is the only alternative.

When that happens, however, there is no requirement that the parents have to consent to their child being placed for adoption. The local authority can simply go ahead, saying: "We have changed our minds. Circumstances have changed, therefore this child is going to be placed for adoption". No formal process is necessary.

The result is, therefore that often the first formal opportunity the parents have to contest the issue of adoption is at the final hearing. Then they can say, to the dismay of prospective adopters and to the disruption of the child, "We have changed our minds about this. We know that it is a loving adoptive family. We know the child possibly might be better off. But I'm sorry, we've changed our minds". By that time, the child could have been with adoptive parents for many months.

Courts in that situation can be reluctant, too. The other effect is that when the courts take the side of the adoptive parents, the birth parents feel that they have had no right, nor have they been listened to thoroughly. The danger of fait accompli was a key reason, therefore, why the Adoption Law Review recommended addressing the issue of parental consent before the child was placed. I would argue that in this way there is a significant strengthening of safeguards for birth parents and a fairer deal.

The third aim of the provisions is that they try to reduce the uncertainty for adopters. At Second Reading, we heard very eloquently and movingly of the dilemma faced by adoptive parents who are finding it extremely difficult to conclude the process of adoption. Therefore, we are trying to reduce the uncertainty for adoptive parents who, currently, a year down the line, are suddenly faced exactly as the birth parents are with the prospect of a change.

As a result of shifting much of the substantive question of consent earlier in the process, the process reduces the opportunity to contest. However, I would point out—and I hope this will reassure the noble

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Lord, Lord Clement-Jones—that the parents may still contest the final hearing if they obtain leave of the court, which may be granted provided that there has been a change in circumstances. We will come on to describe what that might mean.

Therefore, Chapter 3 provides two routes for placement. The first is placement by parental consent under Clause 18, either through a voluntary adoption agency or a local authority, or under a placement order under Clauses 20 and 21. The second route is only available to local authorities, and I shall explain why in a moment. I stress, therefore, that placement by consent is intended to be entirely voluntary. Where the parents withdraw their consent, they can do so at any point before the final order, the final application for the child to be adopted, is made and the child must be returned to them if they make that application. The only change would be if the local authority was under a duty to apply for a placement order. If the child was felt to be at risk of significant harm, or if there was a care order already on the child, that would outweigh the other considerations.

The two placement routes are connected. Where a local authority considers a child it is accommodating ought to be placed for adoption, it must either place him with consent; or, if the parents do not consent and it considers that the child is at risk of significant harm, or the child is under a care order, it must apply for a placement order.

That is in line with the Children Act philosophy of seeking to work with families and to get that balance right between providing for support in consent, but also providing for statutory intervention and protection when that is the right route.

Turning now to the amendments, I shall deal first with Amendments Nos. 51A, 52A, 54 and 54A to 54C. In summary, their effect would be to remove the placement with consent route completely, and to require that there must be a placement order made by a court authorising every adoptive placement, both those where the parents have consented and those where they did not.

Amendment No. 51A amends Clause 17 to remove the reference to Clause 18, so it would now provide that an adoption agency may place a child for adoption only under a placement order—both consequential.

Amendment No. 52A makes a consequential change to Clause 19, so that instead of allowing parents to combine consent to placement with advance consent to adoption, they can now combine consent to a placement order with advance consent to adoption—again, a consequential amendment.

I shall take Amendments Nos. 54, 54A, 54B and 54C in two groups. Amendments Nos. 54 and 54A to C make follow-on changes to the placement order to provide that where the parents consent to a placement order, the court can make one without the Children Act significant harm threshold being met, but where the parents do not consent, the threshold would have

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to be met before an order could be made. That is entirely logical, in the same way as the Bill provides as currently drafted.

Finally, Amendment No. 53A would tie a placement order to an existing placement, a specific placement, where the child was already living with prospective adopters when the placement order was made.

I know that Members of the Committee and some of the stakeholders in the adoption process, the professional agencies, have expressed concern about the current provisions in Clause 18. I want to address those concerns and I hope to be able to do so in what I shall say next. The Government do not share the view that we should dispense with the consent route. The three main arguments of the noble Lord, Lord Clement-Jones—and of the noble Earl, Lord Howe, in some respects—were, first, that the significance of the decision taken by the parents requires the court to be involved. It is such a serious step that we need to make provision to ensure that every parent knows what he or she is contracted to do.

Secondly this is a point made by the noble Lord, Lord Clement-Jones, particularly—it would provide an opportunity for agencies to seek the court's guidance on tricky questions where they were having difficulty deciding how to consult and involve unmarried fathers without parental responsibility or the wider family members.

Thirdly, the use of a placement order in every case would justify recasting the provisions covering removal from adoptive placements, which are described as complex and which we will discuss later.

I believe that the Bill is right for two main reasons. The first reason is because of the safeguards in the system. Indeed the strongest safeguard is the one that I described in relation to putting the birth parents' consent process early in the whole raft of options.

In relation to the first point about the court hearing, we made it clear in the debate in the other place that it is already a key element of placement and consent provision that the adoption agency is under a duty to spell out in regulations the need to counsel the parents and to explain to them the full implications of what they are agreeing to.

We believe that in situations where it is a consensual decision to let the child go for adoption and the parents are fully in agreement, the fullest opportunities to counsel those parents and to discuss the issue with the child will be provided. In that way, everyone will know what they have signed up to.

A further safeguard is that the Bill provides for parents' consent to a placement to be witnessed by CAFCASS officers, who are wholly independent. Their job will be to ensure that the consent is given properly and transparently, with the full knowledge and understanding of the parents. I stress that we are willing to consult on the detail of the role that the CAFCASS officer should play at this stage. It is an important safeguard. We want to get it right. We want to know that we have the right role for the CAFCASS officer.

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Finally, the consent itself is to be given in a prescribed form, which will spell out clearly what is being agreed to. We believe that those safeguards, together with the fact that, as I have said, the consent to placement can be withdrawn by the parents at any point up to the application of the final adoption order, will be in themselves sufficient to ensure that the parents do understand the significance.

On a personal reflection, I believe genuinely that parents who are contemplating this step will really understand what it will mean to lose a child. I imagine that those in your Lordship's House who have experience of the adoption system would support that contention.

The second argument in favour of requiring a placement order is that it will ensure that agencies have properly explored all the options in the wider family. I understand the significance of that. Often these children live in complex family systems; they are often placed with family members; and they have other people in their lives who need to be consulted. The argument is that a placement order in each case would provide a transparent route to seek the guidance of the court in these complex cases when they do not know whether to consult unmarried fathers or wider family members—or, for example, in cases where the mother wanted to give up the child in secret.

It is a developing area. The noble Lord, Lord Clement-Jones, referred to the ECHR and the Human Rights Act. Those Acts are bedding down. We have given a commitment that we will cover the appropriate action for agencies in full in the new adoption agencies regulations and guidance.

It is also important to remember proposed agency decisions and the process that has led up to them and that this is not the start of the process. It is a long way through the process and we would expect the adoption panels, with all their expertise and independence, to have played a leading role in ensuring that the proper work had been done before any decision was taken that adoption was in a child's best interest.

In addition, there is another safeguard. For those who believe that the court has to be involved, there is a route into the court. It will be open for the agencies to seek the views of the court in cases of great doubt or complexity, either by applying for a placement order if it is a local authority and the child is at risk of harm, or by applying for a ruling under the court's inherent jurisdiction, as they can do under the existing legislation. Again, we are very willing to consult on whether specific provision should be made for this alternative in the court rules. So there will be a route into court for difficult cases.

I am grateful for the support of the noble Baroness, Lady Howarth. I do not believe that these few difficult cases justify a requirement to go to court in every case. That brings me to the other reason why we do not believe that a placement order should be applied in every case.

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I have discussed the strong safeguards in the Bill to cover the concerns raised, but in addition let us reflect on what the Bill is trying to do. It is trying to create a simpler and speedier process for children to be placed with stable and loving families after what can be a long period in care or in a series of foster homes. We want to move to a position where when we have the consent of the parents we do not want to put increased delays and barriers in the way.

To get an idea of what the amendments would mean, at the moment 16 per cent. of children adopted from local authority care have already been placed voluntarily—in effect, with the consent of their parents. Those are the children we are talking about. They have been placed without a court order or the involvement of the court. They can be there for many different reasons, but 430 children a year are there voluntarily. Not all these cases would be suitable for the Clause 18 route but this gives an idea of the upper limit.

The effect of the amendment could be to require several hundred additional court cases a year; possibly over 400 and potentially 600 if we reach the target we have set of a 40 per cent. increase in the adoption of children from care. Because a child cannot be placed for adoption until the placement order is made, the result would be bound be an increased delay in placing these children while they wait for the court hearing on the placement order.

We know that some of the agencies that are most involved and most conscientious about the future of the child are concerned about delay; they do not believe that this will occur in practice because they have suggested that these cases can be seen at the beginning of the court day when the court is free and can be dealt with relatively speedily. However, it is hard for us to agree with that because our clear advice from colleagues in the Lord Chancellor's Department is that that pre-list time is already fully occupied with other work. For example, into that slot go the urgent injunctive procedures and case-managed family business. Some Members of the Committee will know far better than I the kinds of things which can clog up the early part of the court day. The spare time in which to handle these applications with no risk of delay is not available; it would be bound to compete.

Given that these will ostensibly be non-contested agreements, we do not believe that they would have priority over urgent cases or pressing family proceedings. The inevitable result will be increased risk of delays in adoptive placements with consent, over and above that which already occurs. Is that justified? We believe that it is not.

The 1992 Adoption Law Review suggested that there should be a court order authorising every placement; However, when the 1993 White Paper was published, the previous administration said that many of those consulted feared that the new procedure might prove cumbersome and might in some cases unnecessarily and without clear benefit add to the length and complexity of the process. That argument has been with us for a decade and has evolved in a

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positive sense as far as the Government are concerned. The White Paper also committed the Government to further consultation and in 1994, when we put forward the concept of placement by consent without a court order, it was strongly supported in those consultations. Those arguments hold true today.

Amendment No. 53A will require the placement order to be made when the child is already living with the prospective adopters. We move from a placement order that can be made without any family being identified, to one that is very specific. What will happen in the regrettable, but not unpredictable, event that a placement broke down? Even in the best regulated foster-parent homes, placements break down for different reasons. The local authority would then no longer have the legal authority to place a child for adoption. If it still thought that the child ought to be placed for adoption, it would have to return to the court to obtain another placement order and this would, again, add to delay.

Again, I shall pray in aid the consultation process. The issue of whether placement orders should be general or specific was one of the key questions posed in the public consultation in 1994. Responses were strongly in favour of general placement orders, on the grounds that they are both simpler and more flexible. I reiterate that the purpose of placement orders is for the court to decide that placement for adoption is in the best interests of the child.

Obviously, the identity of the prospective adopter is critical. The whole process is designed to ensure that the prospective adopter is the best possible quality commitment for the child. The court is essentially being asked whether in principle the child ought to be placed for adoption. It is not being asked to select and match the child with prospective adopters. That is the task that the adoption agencies which are properly skilled and equipped to do it.

Where a placement under a placement order has broken down, the local authority will need to review the case and consider what is the best form of action. It may be that it is no longer adoption. Other factors may have come into play. It may be time to consider possible rehabilitation with the family itself. However, the Government believe that the authority should not have to return to the court, with the inevitable associated delay, before it proceeds to place the child, whatever the decision may be. If adoption were no longer in the best interest, we would expect the authority to make use of its power under Clause 23 to discharge the placement order and make whatever other arrangements were necessary and appropriate.

The Government believe that local authority social services departments, in their role as adoption agencies, are the bodies with the appropriate expertise to make these judgments, and that it is not the role of the courts at this level. I hope that if I have been able to convince Members of the Committee that there is an undesirable inflexibility in the amendments, they will understand why we do not think that they should be included.

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In conclusion, the Government's aim is to reduce delay, but not to fast track at the expense of the care for the child, the quality of the placement and the prospects for the child. We are building in safeguards, not removing them. The proposal to remove the current placement with consent route and to require that there must in every case be a court order authorising placement risks doing the reverse. That is why, on balance, the Government believe that the placement-with-consent route under Clause 18 should remain.

We recognise that a range of genuine concerns have been expressed today. I hope that I have set out the safeguards, but while I do not believe that it would be right rigidly to require that there should be a placement order in every case, we can see that there might potentially be some advantages in terms of extra flexibility in some of what the amendments propose; for example, enabling an agency to apply for a placement order in consent cases, and in these cases, allowing for the order to be made with consent without the significant harm threshold having to be met. We believe that those would be exceptional cases. Although we would consider that local authorities had a right to have that recourse, in no way would we want that to diminish the principle that voluntary placement by consent should be the route chosen for the vast majority of consensual cases. We are willing to look at this issue in consultation with stakeholders, with a view to returning to it on Report.

I am sorry that my explanation has been so long. However, given the nature of the amendment and the fact that your Lordships have approached it in such detail, I think that it is important to spell out the Government's case in detail. I hope that, on those grounds, your Lordships will feel able to withdraw or not to press the amendments.

4.45 p.m.

Baroness Masham of Ilton: I should like to ask the Minister a question, if I may. She mentioned "both birth parents" several times. Would she agree with me that it is difficult sometimes to find both birth parents? The mother might be a street worker and might not know who the father was, or she might be somebody who had been on holiday abroad and had several relationships. In both cases it could be difficult to trace the father. Could the Minister talk a little more about how she sees tracing the fathers in these difficult cases? I know that some of these cases are difficult, and one does not want to delay a child being adopted if that is the best thing for that child.

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