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Baroness Barker: I thank the Minister again for that full reply. I shall take the opportunity to say to the Minister that our obsession with the written procedure, and our requests for there to be independent reviews, should not always be deemed to be a criticism of the agencies. It is certainly in part a frustration about not seeing the regulations and about having to guess so much about what will happen and what will happen to people. I come to the Bill mindful that we are setting a legislative framework within which individual people make individual decisions, day in, day out, of a very tough nature.
I would also say to the Minister that written procedures are not always a stick with which to beat social workers. They are very often a good basis for social workers to explain to people and their advocates who may have some difficulty in understanding what is happening to them in a stressful situation. Therefore, I do not necessarily buy the criticism that goes with this. However, I understand what the Minister says about the gradual transfer of parental responsibility.
It is perhaps one of the most personal decisions in this whole business and I tend to think that decisions about harm to children are perhaps more easily demonstrable but questions about parental responsibility are often deeply subjective. It is with that in mind and with the aim of protecting some of the people involved that we moved our amendment.
Lord Hunt of Kings Heath: I wonder whether the noble Baroness will give way, because I accept the point she makes. I really want to come back to the point she made about the independent review mechanism and the question of regulations.
I understand that there was always a desire, when debating the framework in primary legislation, to know what would be in the regulations. We have a problem here because it is quite clear that a considerable amount of work needs to be undertaken following passage of the Bill and the enactment of the new procedures in 2004. We intend that there should be a very open debate, discussion and consultation on the regulations. I also say that I believe in relation to independent review of determination, the very fact we have regulation allows us to adopt a flexible response in future.
As noble Lords will know, we have identified these two areas to which we believe the independent review mechanism should relate. However, as things develop, as we gain more experience about how the new procedures adopt, there may well be situations where the performance generally of adoption agencies is deemed not to be satisfactory; where the case for then extending the independent review mechanism to cover such cases will become apparent.
So, while I understand the frustration of the noble Baroness, I would say that regulations allow us some flexibility for the future to make adjustments in the light of experience. I also understand that she is not
seeking to criticise local authorities or adoption agencies. The point is well taken; all I would argue for is a degree of flexibility here.
Baroness Barker: I hear what the Minister says. I would take him back to my speech at Second Reading, where I specifically spoke about the fact that there may be times when we could not seek balance because there is no balance to be had.
I do not believe, as some people have done, that argument for independent review is argument for an indefinite appeal on the part of people who perhaps may not be suitable. I believe that there will come a point when usually social workers, or adoption panels, will come to the end of the road and will say, "No, these people are not suitable". That is a tough point to reach.
I believe that asking for written procedures to be on the face of the Bill does not undermine that in any way at all. It is not necessarily as incorrect as it has been deemed to be.
I cannot remember the caseand the noble Baroness, Lady Howarth, might be able to help me outbut I believe it was in Norfolk where two people went on the run with a couple of children a couple of years ago. I remember vividly that the matter came up on "Question Time" and the panel was asked to talk about it. One person, whom I believe was one of my colleagues, was absolutely right in saying, "All these social services questions are governed by confidentiality and I cannot talk about this".
Since then I have been struck by the utter frustration that surrounds many social care matters. That is why in many cases I am a fan of written procedures; I do not believe that it is always easy for there to be written answers.
I am sorry that we have trailed off into a slightly convoluted argument, and one which I did not intend to get into. I believe there is a need to ensure that all parties to difficult matters, which usually cannot be resolved by balance, at least have a means of coming away from them feeling that they have been justly treated under the procedures. That was part of the reason for having a go at this. I am sorry that we have meandered slightly off the point, but I believe it has been a useful debate, given that the department is so open to suggestion on these matters. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 63:
The noble Earl said: We move now to Clause 25, which deals with what is sometimes a vexed and contentious subject; that of contact. Amendment No. 63 deals with one particular aspect of the contact provisions.
Under Clause 25(2)(b) as drafted, a court may make an order requiring visits, stays, or other forms of contact. It does not allow the court to prohibit contact.
Clause 26 allows the court to provide for contact on certain conditions, and in limited circumstances it allows for the adoption agency to refuse to allow contact. However, those provisions fall short of the court prohibiting contact. The presumption will normally be that facilities should be made for the adoptive child to have contact with his or her birth family in the widest sense.
However, it is a sad truth that many of the children who are looked after and are being placed for adoption come from situations of mental or physical abuse from one or more of their family. There are circumstances where it will be clear to the court that contact should be prohibited. All that the amendment does is to make it clear that the court has that power. I beg to move.
Lord Hunt of Kings Heath: As the noble Earl suggested, the amendment concerns provisions in Clause 25 covering contact where an adoption agency is authorised to place a child for adoption. Before turning to the specific amendment, perhaps I may explain briefly the thinking behind the approach we have taken.
Clearly, placement for adoption represents a great step change in the future plans for the child. All noble Lords have very much reinforced that point today. It is absolutely appropriate that existing contact arrangements should be revisited. That is why the clause provides that existing formal contact arrangementsin other words, contact orders made under the Children Actcease to have effect.
Our preferred approach is that the adoption agency, the prospective adopters and the parent should review existing arrangements and agree between themselves what contact arrangements are appropriate in the interests of the child now that the child is placed for adoption.
However, as informal agreements may not be possible, the clause provides for the court to make an order for contact on the application from, for example, the child, its birth parents, the adoption agency and a range of others listed in subsection (3) of Clause 25such as a guardian of the child or a person in whose favour a residence order had been made immediately before the adoption agency was authorised to place the child for adoption. Unless varied or discharged, those orders would last until an adoption order was made.
As the noble Earl explained, Amendment No. 63 is aimed at ensuring that an order for contact under Clause 25 can include an order for non-contact. I agree with the noble Earl that it is important for the court to be able to make an order for non-contact. This might happen, for example, where the adoption agency supervising the placement becomes concerned that someone, perhaps a member of the child's family, might seek inappropriate contact with the child that might risk disrupting the adoptive placement.
I should like to reassure noble Lords that the Bill already allows for this. The wording used in subsection (2) is deliberately modelled on that for contact orders under Section 8 of the Children Act. One advantage of this is to ensure that an order for contact may include one that provides for non-contact where that is in the best interests of the child. In addition, the court could also make a prohibited steps order under Section 8 of the Children Act directed at the person thought to be at risk of initiating harmful contact.
There is case law which makes it clear that a Section 8 contact order can include an order for non-contact. I recognise that the wording of Section 8 does not actually include the words "non-contact". I am happy to send details to the noble Earl. The case is Nottinghamshire County Council v. P in 1993.
"(b) the court may make an order under this section which may
(i) require the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order;
(ii) allow for the person named in the order and the child otherwise to have contact with each other;
(iii) prohibit any form of contact between the child and the person named in the order."
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