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Baroness Barker: On that basis, can I ask the Minister the same simple question that I asked when we debated Clause 1: how would a child initiate proceedings under this measure? The Minister can give me a very simple answer.
Lord Hunt of Kings Heath: Clearly, there are a number of ways in which that could happen. In the first place, the court has to ensure throughout any of the procedures, including the placement procedures, that the child's ascertainable wishes and feelings regarding the decision are duly considered in accordance with the paramount consideration raised in Clause 1(2). Of course, the child will have access to the matter. If the child's case was being looked after by his social worker, that access could be achieved through the independent case review mechanism that we propose, or it could be achieved through an advocacy system.
It is important to recognise that the way in which the child's views are put before the court will vary in different circumstances and in different proceedings. In some cases it would be right for the child to be a party to proceedings and, for instance, to have a CAFCASS children's guardian appointed to act on his behalf. Indeed, in the Explanatory Notes setting out the Government's thinking in October 2001, the thinking was that the child would automatically be a party in placement order proceedings and would have a CAFCASS children's guardian appointed to act on his or her behalf, in the same manner as is currently done for children in care order cases.
We also currently envisage that a child would not automatically be made a party in adoption proceedings, although he or she would be able to apply for leave to be made a party in those proceedings. In other cases where the child is not a party, there might be other routes for the child's views to be conveyed to the court. Clause 99, for example, would allow the court to ask the CAFCASS officer to produce a general welfare report to the court on the case which could cover the child's views.
I should say that my noble friend Lady Scotland has already written, or is writing, to noble Lords setting out some detail of our early thinking. Although we intend to consult on the issue before setting out the detail in court rules, we currently envisage that placement order proceedings will be specified within the meaning of the Children Act 1989. In other words, a child will be party to the proceedings and a CAFCASS officer and a solicitor will be appointed to act on behalf of the child. A child will not automatically be a party to adoption proceedings, although he or she may be made a party where it is
appropriate to do so. Again, the child will not automatically be a party to special guardianship proceedings, although he or she may be made a party where it is appropriate to do so.In both adoption and special guardianship proceedings we intend that CAFCASS will report to the court on the welfare of the child. That is in Clause 99(3)(b). This may include recommendations to the court that the child should be made a party. The court has discretion to appoint the child a party throughout proceedings.
I conclude by saying that our views on the detail are not at all fixed. The full detail on representation and party status in proceedings will be set out in secondary legislation such as court rules and we intend to consult on these detailed proposals over 2003 and 2004. Clearly, we wish to retain flexibility in relation to secondary legislation to pick up any issues that could be raised through the consultation process.
6.45 p.m.
Earl Howe: I thank the Minister for that very helpful reply, which was even more helpful than his short reply earlier on, for which I have in turn to thank the noble Baroness, Lady Barker. Clearly, my amendment is unnecessary but it is helpful to have that clarification on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Applications for placement orders]:
Clause 23 [Revoking placement orders]:
Clause 24 [Parental responsibility]:
Baroness Barker moved Amendment No. 62:
- Page 16, line 13, at end insert—
The noble Baroness said: Until the start of these Committee proceedings I had never regretted not having been a Member of your Lordships' House for very long, but I increasingly regret not having been here in 1989 to sit through all the detail of the Children Act. I suspect that that matter may arise again in regard to this particular amendment because I rather suspect, old hand as I am becoming, that the Minister will talk about the Children Act. However, I shall none the less move my amendment which I believe is self-explanatory. It concerns a written procedure under which people who apply for parental responsibility and are turned down may challenge that decision. These are perhaps some of the most difficult decisions that family courts have to deal with.
In moving this amendment, I ask the Minister whether or not adoption, and parental responsibility within adoption, is a special case which perhaps merits consideration under this Bill rather than under any other legislation such as the Children Act. I beg to move.
Lord Hunt of Kings Heath: This is an interesting amendment which suggests that adoption agencies' determinations about the exercise of parental responsibility when a child is placed for adoption should be subject to an independent review panel under Clause 12. It also appears to suggest that the review panel should in some way be able to initiate determinations in respect of parental responsibility.
We had a very good debate on this matter on Thursday. Members of the Committee will know that my general view is that it would not be appropriate for what I consider to be the agency's day-to-day management of the adoptive placement to be subject to second guessing or micro-management by an independent review process. We have identified the two areas where we think that the independent review process is best operated; that is, first, in relation to where the agency is minded to turn down prospective adopters and, secondly, where the agency decides to exercise discretion on the release of restricted information.
I know that we are going to come back at Report stage to debate this and I shall set aside this debate to concentrate specifically on the amendment. However, I again make the point that there has to be an element of trust as well as an element of regulation and performance management. I am concerned that some noble Lords are seeking to introduce this independent review mechanism to cover almost everything that an adoption agency does. I shall resist that. However, there is a sensible debate to be had as to which areas such an independent review mechanism should cover. Clearly there is room for discussions on those matters between the Committee and Report stages.
As to the amendment, I come back to the point I made earlier about the purpose of placement for adoption. Either the parents have consented or the court has decided that the child shall be placed for adoption by the agency with a view to him being adopted, becoming part of an entirely new family and ceasing in law to be the child of the birth parents. The safeguards, of course, will have been gone through before the parents give consent under Clause 18. They will have been thoroughly counselled and advised by the adoption agency as to the implications of consent; their consent will be independently witnessed by a CAFCASS officer, whose job will be to ensure that the parents have a full understanding of the meaning of the consent that they are giving; and there will be a standard form that will spell out clearly what is involved.
Once the decision is made that the child should be placed, either with consent or under a placement order, until the child is adopted the agency has the primary responsibility for the child's welfare and for overseeing the placement. This is important and
Here the agency is the body with the skills needed to manage and oversee the placement and to prepare all parties for the final adoption. It has both expertise in adoption and detailed knowledge of the individual case. It is right that it should manage the placement and, if necessary, the extent to which others who have parental responsibility may exercise it.
To return to safeguards, it is worth emphasising that where the placement is with consent under Clause 18, if the parents are unhappy with the placement they are, up to the point where an application for an adoption order has been made, free to withdraw their consent and bring the placement to an end.
The Bill provides for the prospective adopters also to have parental responsibility for the child once he is placed with them. This is the crux of Clause 24, which we are debating. This is for practical reasons. Placement may last several months and, as the child settles in to what is intended to be his new family, the fact that the prospective adopters have taken on parental responsibility will enable them to take responsibility for agreeing to, for example, medical treatment, consenting to school trips and so on. Adoption UK, speaking on behalf of adopters and prospective adopters, welcomed this provision in its evidence to the Committee.
The draft Bill of 1996, to which my noble friend referred, gave prospective adopters full parental responsibility from the point of placement. But responses suggested that some prospective adopters might not want the full burden of responsibility immediately and that it might be appropriate for the exercise of parental responsibility to be a gradual process which developed as the placement itself progressed. That is entirely consistent with the debate that we had on Thursday about the process of adoption support. That is why we want the agency to determine the extent to which the prospective adopters may exercise parental responsibility. We would expect this to be the result of discussion between the agency and the adopters. So, in that context, it is appropriate that in managing the placement the agency should be able to determine the extent to which the birth parents may exercise parental responsibility in order to ensure that the placement runs smoothly and to safeguard it from any interference.
If the birth parents or the prospective adopters are unhappy about the manner in which the agency restricts their ability to exercise parental responsibility, we would expect them to discuss this with the agency in the first instance and, if not satisfied, to use the relevant complaints procedure as they would with any other aspect of the management of the placement with which they were not happy.
In cases of placement with consent, ultimately it is open for the birth parents to withdraw consent and, of course, to have the child returned to their sole responsibility. I hope that, while I suspect the noble
"(5) There shall be a written procedure under which any parent or guardian or prospective adopters may apply to the panel, constituted under section 12, for a review or initiation of any determination pursuant to subsection (4)."
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