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Lord Astor of Hever: I am very grateful to the Minister for that full reply. There is a great deal to digest in her response, and we will go away and think about the issues very carefully. I was heartened by what the Minister said about wanting to avoid any drift or delay on the placement orders at all costs. That is very important. I heard what she said in the context of Amendment No. 56 in not wanting to be too rigid in primary legislation. As regards Amendment No. 68, I accept that a trip back to court is to be avoided if at all possible for a child.

We do not accept that the amendments add a great deal of inflexibility. We would want to consider them carefully and come back at the later stages. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Baroness Barker moved Amendment No. 57:

Page 14, line 19, after "adoption" insert "or special guardianship"

The noble Baroness said: I should perhaps begin by explaining that my colleague, the noble Lord, Lord Clement-Jones, has left to keep a very longstanding engagement. Perhaps he was bowled over by the Minister's eloquence.

Amendment No. 57 in a slightly different format was moved by my honourable friend in another place, Sandra Gidley. That was answered by the Minister in

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another place, Jacqui Smith, but having read her words, I do not understand why a placement order should stay in force and then be revoked when an adoption order is made, but not when a special guardianship order is made.

I realise that we have not so far in our deliberations spent much time on special guardianship and I know that we will do so later. My broad understanding of special guardianship, as I read it in the Bill, was that it was not a placement but a new form of relationship which is—I hesitate to say on a par with adoption but which has clear continuing ties to birth parents. As I read it, it was one of the clearest things in the Bill.

I cannot therefore understand why an adoption order should lead to the revocation of a special placement order and a special guardianship order should not. I do not understand from the Minister's answer in another place why it was felt necessary that there should be recourse to the courts to revoke a placement order in the case of special guardianship, but not for adoption. Therefore, this is a probing amendment to ascertain the status of special guardianship with regard to placement. I beg to move.

Lord Hunt of Kings Heath: I understand that this is a probing amendment and, of course, as the noble Baroness, Lady Barker, suggested, we will be debating special guardianship orders in detail later. However, it might be useful if at this stage I explain briefly what these are and how the provisions relating to them and to placement will work, before responding to the specific probing amendment that the noble Baroness has put forward. Clause 112 of the Bill makes provision for a new special guardianship order under the Children Act 1989. I stress that this is under the Children Act 1989 and not under the Adoption and Children Bill that we are now considering.

The idea of a new status was proposed in the Performance and Innovation Unit report following the Prime Minister's Adoption Review in July 2000 and received widespread support in the public consultation that followed. The Government subsequently gave a commitment in the White Paper, Adoption: A New Approach, to develop a new legal option called special guardianship, which is aimed at meeting the needs of children for whom adoption is not appropriate, but who could still benefit from a permanent, legally secure placement.

We know that children value the sense of legal security and permanence that can come with a court order. The intention is therefore to give the special guardian clear responsibility for all the day-to-day decisions about caring for the child or young person and for taking decisions about his or her upbringing. But unlike adoption, the order retains the basic legal link with the birth parents. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. The birth parents retain the right to consent or not to consent to the child's adoption or placement for adoption.

The White Paper suggested that special guardianship might be appropriate for some older children who may, for example, be being looked after

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in long-term foster placements and who do not wish to be legally separated from their birth parents but could benefit from greater legal security and permanence. It might be appropriate for some children being cared for on a permanent basis by members of their wider family. Additionally, some minority ethnic communities have religious or cultural difficulties with adoption as set out in law.

In those circumstances at present, such children would probably be looked after either by local authority foster parents or informally. Where adoption is not appropriate, the only alternative legally secure option available is a residence order.

The new order is intended to offer more than a residence order in terms of the security it brings and the support package that may be provided. It is designed to be flexible enough to work in a range of situations—including, for example, where there is extensive and regular contact with the birth family—and in instances where that would not be appropriate but where it is nevertheless desirable to retain the basic legal link between the child and the parent.

The Government want to see this new order used successfully. Therefore, we are placing in the Bill a duty on local authorities to make arrangements to provide support services for special guardianship placements. We anticipate that these support services will operate in a similar manner to adoption support services.

The new provisions have been widely welcomed as offering a positive new option for delivering permanence for children. We intend to consult widely on the rules, regulations and guidance that will accompany the implementation of these provisions.

As for the relationship between special guardianship orders and placement orders, Clause 28(5) provides that where a placement order is in force, no special guardianship order may be made. We come to the nub of the issue raised by the noble Baroness, Lady Barker. The reason for this is that where a placement order has been made, the court has taken a decision that the child ought to be placed for adoption, having considered all the alternatives, which would include special guardianship, and having considered the views and wishes of those who have significant relationships with the child, in line with the duties set out in Clause 1.

One of the intentions of the placement system is to increase the stability and security for prospective adopters and for children placed for adoption once the decision to place has been made by shifting the point of that decision to earlier in the adoption process. We have already discussed some aspects of that. Where that decision has been properly made—in this case by a court making a placement order—we believe that the placement should be protected. That is why we consider that applications for special guardianship orders, seeking in effect to reverse the placement decision, are not appropriate while the placement order is in force.

If there are problems with placing the child or if the situation changes such that a placement for adoption is no longer in their best interest, the right course of

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action would be in the first instance for an application to be made to discharge the placement order under Clause 23. We do not believe that it is appropriate for that decision to be made by default as a result of a special guardianship application.

However, we do believe that it is appropriate that where a child is under a placement order, but where the parent or guardian of a child had the leave of the court under Clause 46 to oppose the making of a final adoption order, they are also permitted to make an application, if they wish, for a special guardianship order to be considered at the final adoption hearing as an alternative to the proposed adoption. This is provided for in Clause 28(5)(a) and (b). Others who are entitled to do so may also make application for residence orders or special guardianship orders to be considered at the final adoption order hearing as alternatives to adoption, provided that they secure the leave of the court to do so.

The court is free, at the final adoption order hearing, to discharge the placement order if it decides not to make an adoption order, but some alternative such as a special guardianship order should be made instead. This is set out in Clause 23(4).

I hope that I have reassured the noble Baroness, Lady Barker, that the special guardianship order needs to be considered at the appropriate place. However, once a placement order has been made, it is made in the context that the end result of that will indeed be adoption.

Baroness Barker: I thank the Minister for that reply. I believe it was helpful not only to me but to other noble Lords as well. The status of special guardianship and adoption was perhaps not as clear as we thought.

I understand the Minister's comment about placement orders being specifically a matter for adoption. Following what he said, I did not get the sense that a special guardianship application at the stage of the final adoption hearing is working towards the same end described earlier by the noble Baroness, Lady Andrews, in which everyone involved has an opportunity to consider options—rather than a situation in which the final adoption hearing is essentially a high noon when everyone faces a fait accompli. I understood that, although special guardianship and adoption orders are not interchangeable, they are certainly on a par in terms of their permanence.

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