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Baroness Andrews: Tracing unmarried fathers is a big issue. Under the present arrangements, at the early stages of the decision on whether the child ought to be placed for adoption, the adoption agencies would make every effort to do that. The Bill's provisions do not disturb that effort. Every effort will be made as part of the placement process to establish whether the unmarried father had a right to be consulted. Of course, it certainly reflects the nature of the relationship if the unmarried father has a continuing
relationship with the mother, as that puts it in a different category. By marrying the mother, he can acquire a parental responsibility and so on. Throughout the consultation on regulations, we would certainly want to ensure that those provisions are strong and that they are fair to both parents.
Lord Clement-Jones: I thank all those who took part in this debate—which is clearly, as the Minister recognises, fundamental to the operation of the Bill. I am grateful to her for taking the trouble to go through it in such detail and to address all aspects of the amendment. She need make no apology about the length of the reply; it is extremely important that we get this right.
The two words that I picked up on from other noble Lords during the course of the debate were "finality" and "irrevocability", posited against the Minister's "undesirable inflexibility" and the cumbersome aspects of having to go for an order every time. Of course, there are important considerations when one balances the two aspects. Those such as myself who take a view about the balance are very much influenced by the fact that Clause 51(4) contains wording that means that any withdrawal of consent prior to the adoption order being applied for is a nullity.
- "The withdrawal of any consent to the placement of a child for adoption, or of any consent given under section 19, is ineffective if it is given after an application for an adoption order is made".
I have to hand the chart which makes it clear that, at an adoption order hearing where there has been a placement with consent, the birth parent may oppose the adoption order only with the court's leave. Thus, there are fetters in those circumstances, all of which tends towards finality if placement by consent has taken place; hence the argument that this should be done by court order.
I understand what the noble Baroness, Lady Howarth, said about this as a practitioner. However, there are many other practitioners among those whom the Minister has rather helpfully described as "stakeholders" in this process who feel very strongly that this is a necessary protection and that it is important to go through a very straightforward court order route for placement in order to ensure that we do not have problems at, in a sense, the back end of the process when the adoption order is made.
I do not believe that this particular set of proposals introduces greater uncertainty; indeed, it is designed to reduce the level of uncertainty. As we may hear in debating whether the clause should stand part—it is all part of the same argument—by deleting Clauses 30, 31 and 33 and Clause 18, we would in fact simplify the procedures in the Bill.
We probably have something of a philosophical difference in all of this. I shall very carefully read what the noble Baroness has said. Although I understand the resource issues involved, we have a very important decision to make in relation to the Bill. Regardless of
whether court time is available, if we decide that this is the way to proceed, court time will have to be made available. We have to make those resources available.I shall leave it there. The problem is that the noble Baroness, Lady Andrews, makes the case that there is no fait accompli. However, many of us believe that there is too much of a fait accompli—if it is possible to use the term relatively rather than absolutely. It is tilted too far the wrong way. Nevertheless, I am sure that we shall all go away and read the noble Baroness's words with considerable care, including her point on enabling an agency to apply for a placement order even where consent is given in certain circumstances. We shall definitely look at that to see if it is a possible way of perhaps compromising or at least curing some of the defects in the proposals currently before us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Clause 18 [Placing children with parental consent]:
Baroness Barker moved Amendment No. 52:
- Page 12, line 40, after "of" insert ", or other persons holding parental responsibility for,"
The noble Baroness said: In moving this amendment I shall pick up the point raised in a previous debate by the noble Baroness, Lady Masham. The issue of deciding who holds parental responsibility seems less straightforward than those who come to these matters cold might think. The issue that we are trying to get at here is about parents who hold parental responsibility, such as grandparents, and about those who are not resident but still retain parental responsibility.
One criticism of current practice, to which the Minister alluded in speaking to the previous group of amendments, is that it is possible for parents who are not present or living with the children to be ignored in the process. These days, and for many of these children, family structures are extremely complex and somebody who in effect has parental responsibility may not be the person who in law has parental responsibility.
In tabling the amendment, we want to ensure that thorough consideration will be taken of the wide kinship structures in which many of the children find themselves. I ask the Minister what exactly is meant, and who is meant, by the people who are named already in the clause, and whether that is wide enough. I beg to move.
Baroness Masham of Ilton: Perhaps I may ask the noble Baroness, Lady Barker, whether the amendment would include parents in prison. There is an extra difficulty because the children stay so long with the parent, and then they are taken away and put into care. The parent might want them adopted or they might
not. The situation is so different if they are in prison, and the father might be in prison too. Would her amendment cover people in prison?
Baroness Barker: That is a fine question. The noble Baroness, Lady Masham, may get more clarification from the Minister than she would from me, so I will redirect the question.
Baroness Andrews: The answer to the point raised by noble Baroness, Lady Marsham, is "Yes".
Perhaps I may reply now to Amendment No. 52, I know that the noble Baroness has great concern for the rights of grandparents in particular, in relation to her professional work outside this House.
The provisions for consent to placement, like much of the Bill, follow the model of consent to adoption provision in the 1976 Act, but the people who must consent to the child being adopted are the child's parents or guardians. We have to make a distinction between parental consent, and the legal responsibility to act as a parent, and a parental responsibility. The people who must consent to the child being adopted are the child's parents or guardian. "Parents" in this case means the parent who has parental responsibility.
In addition, one of the great virtues of the Bill, is that we have created a new role; "a special guardian". Clause 139 provides that "guardian" in this instance includes a special guardian. The intention of the special guardianship order is that the special guardian is the child's primary carer and takes the day-to-day decisions concerning the child's upbringing. It is right that he or she, alongside the child's parents, should have to consent to the child being adopted or being placed for adoption. The special guardianship fits within that rubric.
However, the effect of the amendment would be that others with parental responsibility would also need to consent to placement for adoption. That would mark a very significant departure from the position under current legislation. The largest group of people involved would be those holding residence orders, and they can be a great range of people. They can be other members of the family; they can be grandparents, but they can be people outside the family as well. They can be long-standing friends of the family who are trusted to take care of the child in certain circumstances, and who have applied for and been granted a residence order.
Giving the holders of residence orders as the ability to consent to placement for adoption would therefore be giving them a huge additional responsibility. It would be a responsibility about that key decision in the child's long-term future which might not be appropriate in all residence order cases because they are made for such different reasons.
In practical terms, an adoption agency would not seek to place a child for adoption via the consent route at all when the child was subject to a residence order in favour of someone other than a parent with parental responsibility. The reasons for that are quite practical. If a residence order is successful, the child is living happily with that person but the residence order
determines where the child is to live and, therefore, it is quite difficult for the agency to gain access to that child. How would it be able to see and talk to the child and to decide that adoption was in his or her best interests? Therefore, how could they take some of the other decisions about whether adoption was the right route or about placement?In a situation where there was a dispute between the parents and the holder of the residence order as to the future of a child, the parent would have to seek initially to discharge the residence order. If the local authority were concerned about the future of the child in such a situation and it wanted to quash the effect of a residence order, it would have to seek a care order. If the parents tried to take away the residence order in the course of a dispute, the local authority would have to think of the future of the child as regards the potential harm, and would have to seek a care order in those circumstances. If it was satisfied at that point that the child ought to be placed for adoption, it would also have to seek a placement order. If either a care order or a placement order were made, the residence order would be discharged.
As regards the other people who may hold parental responsibility, such as step parents, if we look back at the provisions of Clause 1(4)(f) there is the safeguard that the court would need to consider their views about the adoption if they were people who had a significant relationship with the child. That notion of significant relationship is not confined to family members. So the provisions are wide enough to ensure that account is taken of the views of relatives and others who have a significant relationship with the child.
Given the framework set out in the current legislation, we believe it is right that it continues to be the case that the people whose consent is required as to what happens to the child as regards a placement or adoption order, and the people on whom the court must rely and seek consent from must be the parents and the guardians of the child.
I hope that that will reassure the noble Baroness that the relatives and the people of whom she has the care will be involved in the proper consultation processes and their views will be taken into consideration, and that under the circumstances that will be sufficient to meet her objections through the amendment.
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