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- House adjourned at twenty-five minutes before nine o'clock.
Official Report of the Grand Committee on the
Adoption and Children Bill
Thursday, 4th July 2002.
The Committee met at four of the clock.
[The Principal Deputy Chairman of Committees (Lord Haskel) in the Chair.]
The Deputy Chairman of Committees (Lord Haskel): Perhaps I may remind the Committee that if a Division is called in the main Chamber, this Committee adjourns for 10 minutes to enable noble Lords to vote.
Clause 29 [General prohibitions on removal]:
Lord Clement-Jones moved Amendment No. 67A:
- Page 19, line 4, leave out paragraphs (a) and (b) and insert—
The noble Lord said: I rise to move Amendment No. 67A and speak to Amendments Nos. 67B, 67C and 67D, and in fact the clause stand-part debate following will also be relevant. These amendments follow closely, and indeed could have been grouped with, Amendments Nos. 51A, 52A, 54, 54A, 54B, 54C and 53A, which we spoke to when the Grand Committee previously met. They are, like those amendments, based on the premise that there should be a placement order in every case, even where consent to placement is forthcoming.
The aim of the amendments, and indeed of the clause-stand part debates on Clauses 30, 31 and 33, is to ensure that once a placement order is made following judicial scrutiny, the placement should not be disrupted without the leave of the court, or the consent of the agency.
The advantage of this for the adopters is that they will know if a child is placed with them under a placement order, even if it was made by consent, but the placement cannot be disrupted by a parent who has changed his or her mind without the court being satisfied that there is sufficient change in circumstances to merit sanctioning a change. Conversely, a parent consenting to placement should do so only having taken into account that he or she cannot change his or her mind later without good cause.
As the proponents of the earlier amendments explained, the whole purpose of this is designed to reach some kind of certainty early in the day, but to avoid finality where parents give their consent to a placement without a court order. I beg to move.
Lord Campbell of Alloway: I support the concept of this amendment in the hope that it could perhaps commend itself to Government.
Baroness Howarth of Breckland: I have concerns because the provision follows on the making of a
I believe the placement order should be in place to ensure that when a parent might change his or her mind, where there are difficult circumstances, the child is secure. There are circumstances in which families simply want to place their child for adoption, and social workers will say that one of the things that delays the progress of adoption is the time waiting for court hearings. I know that the noble Lord, Lord Clement-Jones, said that we should make time available if we pass this legislation. However, I was simply referring to waiting times at the moment for urgent issues, including criminal cases where children are witnesses and where they are supposed to be a priority. There is still a great difficulty about court time. I should prefer to see a situation where we have placement orders in circumstances that have been assessed as needing placement orders, and not have placement orders in other circumstances. Then, if you like, we would not need this convoluted process with which I was struggling—though I believe I have got my mind around it now—during the last debate.
Baroness Andrews: As the noble Lord, Lord Clement-Jones, has said, these amendments take us back to earlier amendments when we explored the differences in concept and application between placement with consent and the application for a placement order. The overall intention of the Bill, as I described it on Tuesday of this week, is to try to redistribute the power available to prospective adopters and birth parents, so that there is a more equal opportunity for birth parents to be fully informed and involved at an earlier stage so that irrevocable decisions are not taken. The noble Baroness described it as the "High Noon" situation at the point when the application for adoption is made.
I shall address the amendments in some detail because they are rather complex, although I appreciate the brevity with which the noble Lord introduced them. As part of these changes, the Bill must inevitably reflect those changed parameters when it comes to removing children from placement with consent. It has to ensure that the rights that are available to families involved are also matched by the security afforded at different stages of the process.
At the moment, through a combination of Clauses 18 and 51, the Bill ensures that in consent cases the parents can change their mind about placing the child for adoption at any stage up to the point at which an application for the final adoption order is made. It is worth emphasising this point. Although the birth families will have support to understand and explore the implications of what they are doing, we have gone to some pains to ensure that they can change their mind at any point.
Under Clause 41, there must be a minimum of 10 weeks between the child being placed with prospective adopters before they are able to make an application for adoption. So the Bill provides for parents to change
Perhaps I may briefly outline what the clause is intended to do. Clauses 29 to 34 place restrictions on removing children subject to the placement provisions. Clause 29 sets out the general rules and Clauses 30 to 34 expand on those to cover placements both with consent under Clause 18 and under placement orders.
Clause 29 provides, first, that where a child has been placed for adoption with consent, or where the child is under six weeks of age—we have dispensed with the parent having to give consent for that period—it is an offence for anyone other than the adoption agency, whether that is a local authority or a voluntary agency, to remove the child from the prospective adopters. It also provides for the alternative situation; namely, Where the child is still waiting to be placed with prospective adopters and is being accommodated by the adoption agency, whether it be in a children's home or with foster parents. But, again, only the agency can remove the child. The same rule—that only the agency can remove the child from the placement—also applies where the parents withdraw their consent to placement under Clause 18. Clauses 30 to 32 set out what happens in those circumstances.
Where the parents have consented, it is only the adoption agency that can act to remove the child. Where the parents have withdrawn their consent, it is still the adoption agency that would remove the child and oversee the return to the parents. In addition, the adoption agency is able to remove the child from the placement at any point, regardless of whether the parents have requested the return of the child. For example, we are thinking of situations where the agency was concerned that the wrong judgment had been made and the placement was failing. In that situation the agency would be able to step in and remove the child.
The removal provisions work broadly as follows. Where a child is placed for adoption by consent and that consent is withdrawn, the child must be returned to the parent within 14 days. If consent is withdrawn before the child has been placed, the child must be returned to the family within the week. I should point out that we made that concession: we reduced the period from 14 to seven days after representations from the agencies involved in adoption.
The clause gives parents substantial rights to have the child returned if they change their minds. We obviously have to provide for those situations where the local authority does not think that that is the right thing to do, even where the parents have withdrawn their consent. Where that is the case, and provided that the authority considers that the significant-harm threshold is met, under Clause 21, the authority is under a duty to apply for a placement order.
Under Clause 29(2), once the authority has applied for the placement order, the child may be removed only with the leave of the court. Again, for consistency,
I now turn to the placement order. The restrictions on removal, once a placement order has been made, are dealt with in Clause 33. Again, only the local authority may remove the child, and it can do so at any point. However, unlike a placement with consent under Clause 18, where a child is under a placement order, there is no provision for the parents to have their child returned to them as of right at their request. Their only option would be to apply to the court to have the placement order discharged. They would hope that in doing so, the court would provide that the child should be returned to them. Under the noble Lord's amendments, that would be the position in every case, because related to the discussion we had on Tuesday, there would be a placement order in every case.
I have described how the removal provisions work. The main point is that only the adoption agency may physically remove the child, but there is a caveat in the Bill. Subsections (6) and (7) of Clause 29 have made it clear that none of the provisions in Clauses 29 to 32 prevent the removal of a child who, for example, is arrested or removed as a result of a local authority or any other persons exercising a power conferred by any enactment. It is important to ensure that the removal provisions do not cut across local authority child protection powers under the Children Act. While these clauses reflect the right of parents to request the return of their child from placement with consent, at every stage up to the application of the final adoption order, they place the power of making the physical removal with the adoption agency.
We have done this because placement for adoption is a serious undertaking. It is of a different nature from a temporary foster placement or temporary respite in care homes. Given the different nature of placement for adoption, it is right to provide that where the parents ask for the return of the child, the parents simply cannot walk in and remove the child at will. Removal in whatever circumstances, whether from an actual adoptive placement or a pre-adoptive placement, has to be handled sensitively and consistently. We believe that the adoption agencies are right organisations to do that.
In the light of that, the Government believe that the process of preparing them to be returned to their parents, and the actual process of return, should be handled by the adoption agency. As a consequence, where consent has been given to place a child for adoption where the local authority has applied for a placement order, the clauses have the effect of
Where such children are in voluntary accommodation and their parents have consented to place them for adoption, if consent is withdrawn, they no longer as now have the right to remove those children themselves. In those cases, too, it has to be the adoption agency which removes the child within the defined period. I want to stress that the removal of those rights applies only where the child has been placed for adoption or where applications for placement orders have been made. The wider rights of parents to recover children accommodated under the Children Act, not in connection with adoption, are not affected.
Finally, subsection (9) of Clause 29 imposes a penalty of three months' imprisonment and a fine of up to £5,000, or both, for breach of the removal provision.
I turn now to the details of the amendments. I understand that the motivation behind the amendments is to simplify the provisions. One consequence of removing the option for placement with parental consent under Clause 18, in favour of placement orders in relation to every child in every family, is that the placement order removal restrictions would obviously apply to all adoptive parents. That is reflected in the amendment. The overall effect of the amendment is that once the placement order is made, the child should be removed from the placement only by the decision of the local authority, and physically removed by the local authority. The parents would have no right to request removal of the child or to have the child returned to them within a set period, as they currently do in placement with consent under Clause 18.
We believe that where a placement order is necessary, that is broadly right. However, as the Committee will by now appreciate, we believe that there should be this alternative route for parents. The difficulty is that the amendments would not allow that. They would not allow parents the opportunity to change their minds before the point of application for the final adoption order. Even if the placement order were made with the consent of parents, once the placement order was made, that would be it—parents could not change their minds; they could not ask for their child's return. The only option would be to apply to the court under Clause 23 to discharge the placement order.
That is a major change from the current position whereby children voluntarily accommodated under Section 20 of the Children Act are placed for adoption. At the moment, parents can exercise their right to have the children back. Yet, those placements generally proceed very successfully on this voluntary basis. Under the proposed amendment, all such cases would be under placement orders and parents would lose their ability to secure the return of the child without going to court. The Government believe that it is worth keeping open the voluntary option.
To reiterate, under our proposed provisions, when parents have given consent to placement and decide to withdraw, they can have their child returned without needing to go to court within the seven or 14-day period, depending on the situation of the child. The only exception is where the local authority has applied for a placement order. Although we do not think that that is complex, as we shall see when we come to look at the amendments in detail, a degree of complexity has certainly crept in.
Taking Amendments Nos. 67A, 67B and 67E together, part of the problem we seem to have uncovered is that Amendment No. 67E risks undermining the intentions of Amendments Nos. 67A and 67B. It is a rather complex matter. Amendments Nos. 67A and 67B amend subsection (1) of Clause 29, to remove references to Clause 18 and to provide that the restrictions on removal in Clause 29 apply to all placements. Although it is not entirely clear, I presume that that means placements whether the child is placed or awaiting a placement. I am not sure that the word "placement" itself actually delivers that.
I anticipate that this amendment needs to be read in the context of the proposal that Clause 33 should not stand part of the Bill. I am, as I said, therefore assuming that it is intended to apply in all cases. The intended effect is that only the adoption agency may remove a child from placement. As I said, that would leave an application to the court to discharge the placement order as the only recourse for parents in consent cases who have changed their mind.
However—if I am right and the amendments are intended to reflect the position whereby the parents of a child under a placement order who want the child back may not remove him without going to court to discharge the order—Amendment No. 67E seems to cut across this objective. The reason for that is that Amendment No. 67E amends subsection (6). As I said, the purpose of subsection (6) as drafted is to ensure that the removal provisions do not block removal by local authorities in relation to arrest or child protection powers.
However, the effect of Amendment No. 67E would be to restore parents' rights under the Children Act, so that they themselves could at any point remove a child voluntarily accommodated under Section 20 of that Act. Therefore, the adoption agency would not be the only one that could remove the child. The effect of the amendment would be that, where the child has been voluntarily accommodated before being placed, the child's parents could at any time turn up and remove the child from the placement. I think that that would undermine the intention behind Amendments Nos. 67A and 67B. We do not think that the amendment is desirable, and the noble Lord, Lord Clement-Jones, may agree with us.
In addition, where a child has been voluntarily accommodated but the local authority then decides that the child should be adopted and applies for a placement order, as currently drafted, subsection (2) of Clause 29 would prevent the parent or anyone else from removing the child without the leave of the court.
The matter is not straightforward, unlike those dealt with in the remaining amendments. Amendment No. 67C would delete subsection (3) which covers restrictions on removing children where an agency was authorised to place the child under Clause 18, but the child had not yet been placed with prospective adopters. The subsection would clearly not be necessary if there were no Clause 18 placements.
Amendment No. 67D reflects the forthcoming debate on stand part by deleting references to Clauses 31 and 32 from subsection (4), which provides that the general removal restrictions in Clause 29 are qualified by the specific provisions in the following clauses.
These amendments essentially flow from our earlier debates. If that point is accepted, then the thrust of the changes proposed by the amendments would be sensible. As I said, however, it could be argued that the restrictions on removing a child may be somewhat "rigid" for what is supposed to be a consensual, voluntary placement—which is our objective in Clauses 17 to 24—arrived at, we were assured earlier, after the briefest of court hearings. That indeed was part of the case that was made. However, there seems to be little scope for parents to change their minds under these proposals. We argue that Clause 18 is valuable and that the route it offers should be retained. Consequently, in all logic, the provisions in Clause 29 and later clauses need to be retained.
I have made it clear why we oppose in principle the thrust of the amendments. I have also set out why, regardless of our difficulties in principle, we have some concerns about their detailed operation. I am also conscious that we have necessarily dealt with this matter in a rather technical way. I should therefore be happy to provide to the noble Lord, Lord Clement-Jones, and to any other noble Lords, a detailed explanation in writing or in a briefing which we could organise. If that would be helpful I should be very happy to do it. I hope that the essence of the argument and the Government's position, as expressed in the clauses themselves, is clear.
"( ) a child is subject to a placement order,"
4.15 p.m.
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