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Lord Hunt of Kings Heath: Are there not two points here? First, when it comes to making a placement order, clearly a special guardianship order is an option that the court may consider when deciding whether to agree to a placement order. Secondly, when one reaches the final adoption hearing, if—as we know—the parent has already given consent and the court gives leave to the parent, they may come before the court to argue against an adoption order being made. At that stage, the argument may then be put that a special guardianship order might be more appropriate.
Baroness Barker: I thank the Minister for that last bit of reassurance; it addresses some of the issues that
I set out to explore with the amendment. I have had some very indicative answers. I therefore beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
6.30 p.m.
Earl Howe moved Amendment No. 58:
- Page 14, line 21, at end insert—
The noble Earl said: Clause 20(4) envisages three sets of circumstances in which a placement order can come to an end. They are: when the order is revoked under Section 23; when an adoption order is made in respect to the child; or when the child marries or attains the age of 18 years.
When I first read the Bill, I formed a view that the provisions for placement orders represented a significant step forward as a mechanism to replace what we have had up to now, which are freeing-up orders. The procedures surrounding placement orders are certainly a major step forward in most aspects, but in one respect I have concerns. What the Government and indeed all of us are seeking to get away from is the situation where a child might find himself in indefinite limbo, neither with his birth parents nor adopted but floating around in the care system.
As Clause 24 reads, that undesirable situation could recur. There is no time limit to a placement order and we have to ask what happens if, despite the provisions of Clause 1, there is a delay in making an adoption order. There ought to be an automatic, in-built check in the system to ensure that children are not left in limbo, which is why my amendment proposes that there should be a review by the court at the two-year point after the placement order had been first made. Unless there is such a check, placement orders will not be seen as such a marked improvement upon the outdated freeing-up orders. I hope that the Minister can give me some reassurance on this point and I beg to move.
Baroness Andrews: I am very glad to hear the noble Earl, Lord Howe, agreeing with us that it is good to see the end of freeing orders. He talked about the consignment of a child to limbo and there was nothing more designed to put a child in limbo than a freeing order, which left him without any legal parents whatever. The placement order is clearly an improvement upon that and the purpose of the Bill is very much to create that framework, where everyone knows what legal rights there are and what processes can be followed.
I appreciate that the amendment is aimed at tackling the situation where after two years the child has not been placed. Indeed, we are back to tackling drift here but we ought to bear in mind that we would certainly expect the local authorities to leave no child to drift for six weeks, let alone six months, let alone two years. We would expect the local authority to be reviewing this placement regularly. We would expect it to review the plan for adoption and this starts now very early on.
The current regulations from the Adoption Agencies' Regulations 1983 require a review after four weeks and at six monthly intervals thereafter. We intend similar obligations to be placed on authorities through the new regulations that will be made, so we are building in this requirement under regulations for regular and early review. Where a child has not been placed after two years, we would obviously expect the authority to be asking itself whether this route into adoption was appropriate. The reasons it is difficult to place children for adoption are many and complex and it may be that there are other and better routes for that child, given its circumstances. In such a situation, therefore, we obviously go back to the overriding concern for the paramountcy of the welfare of the child and all the other provisions in Clause 1.
However, if the authority decided that placement for adoption and the plan for adoption was no longer in the child's best interests, under Clause 23, it can apply to revoke the order at any point. If there are problems when a child is placed, we would expect the local authority to act and where it considered the problem sufficiently serious to make a change of plan, we would expect it to discharge the placement order.
We are aware that one cannot afford, and would not want to be complacent in this situation about all authorities reaching for best practice. Authorities do not always act and we have to guard against drift. Therefore, Clause 23 allows the child, or indeed someone acting on his behalf, to apply to discharge the placement order at any point. That could be social services, a social care worker, or a range of people acting to safeguard the interests of the child.
That we see as providing a powerful safeguard but it does not stand alone. It also stands with a new independent reviewing officer system that is introduced through our amendments to the Children Act in Clause 115. That also covers children in adoptive placement and, when we reach that clause, I am sure that we shall have a longer debate on its implications and strengths.
Where a placement is not going well to the extent that the reviewing officer becomes concerned and the local authority does not act to rectify the situation, the reviewing officer will be able to refer the case on to CAFCASS, if it considers that the child's human rights may be at risk. CAFCASS could then apply, on behalf of the child, for the discharge of the placement order.
Therefore, we have in place a series of safeguards; we have the regulations about regular review; we have the independent reviewing officer; we have the ability of someone acting on behalf of the child to discharge the order; and we have the reviewing officer being able to come back to CAFCASS. I therefore believe that that system of safeguards will ensure that drift will be avoided wherever possible.
In light of the arrangements, the Government do not believe that it is appropriate to bring the court into play. I set out the reasons when I spoke to the previous amendment; that is, the relationship that the local authority has, the requirement to act in the best interests of the child and to use the courts when it absolutely needs to have the power to act.
The Children Act makes this division of responsibilities clear and we feel that the same principles should apply to adoption. However, we are determined to ensure that, in cases where the child has spent an unconscionably long time without being found an adoptive placement, we shall not tolerate drift. Therefore, I hope I have been able to offer some assurance that we have the framework in place and that the noble Earl will feel able to withdraw the amendment.
Earl Howe: I thank the Minister for her helpful reply. I recognise the force of many of the points she has made, not least as regards the safeguards that she listed.
My fear is still that we could have a local authority that would be reviewing the situation regularly but, despite that, there may be drift and even an absence of best practice; perhaps some political correctness creeping in about matching the child with the ideal set of adoptive parents or something of that nature. There would be supposedly good answers that the local authority would give to anyone who challenged it on why this or that child had not bee placed with adoptive parents.
The thought that the courts could act as a long stop was based on a wish, at least on my part, that the local authority should be kept up to the mark in a way with which it could not argue. However, I shall consider carefully what the noble Baroness has said between now and Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 59:
The noble Earl said: I can deal with Amendment No. 59 briefly. In earlier amendments, we debated the importance of ascertaining the wishes of a child during the process of decision-making relating to his or her adoption. There is nothing that appears to mirror Clause 1(4)(a) in Clause 20. Nowhere in this clause are the child's own wishes referred to. The whole process of a placement order is to be conducted apparently over the child's head.
Obviously, for very young children, it is impractical to involve the child in the decision about the placement order, but for older children, the child's wishes and views should at least be ascertained and taken into account. That is why I have tabled this amendment. I beg to move.
Lord Hunt of Kings Heath: I do not know if I can answer this very simply, but I draw the attention of the noble Earl to Clause 1(7)(a) which makes clear that a placement order is covered within the meaning of Clause 1(4)(a), so the child's
"( ) A placement order must be reviewed by the court two years after it is issued if, at that time, it continues in force."
Page 14, line 21, at end insert—
"( ) The child shall, being of 5 years of age or more, be a party to proceedings relating to the placement orders unless the child has consented to waive his or her rights to be a party."
"ascertainable wishes and feelings regarding the decision"
need to be considered. I can give a long answer, but that is a quick one.
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