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Lord Northbourne: Before the noble Lord sits down, I should like to make one fairly obvious point that is too often ignored. It is no good our sitting here making laws unless the resources are made available to carry out the obligations that they impose. I am sure that the noble Baroness will agree that at present some social services departments are so overstretched they do not know whether they are coming or going.
Lord Hunt of Kings Heath: The noble Lord takes us back to a debate last week about the willingness and capability of local authorities to take on responsibilities when we were discussing adoption support services. He makes an important point that it relies on local authorities doing the job properly. That is, of course, partly to do with funding and the spending review settlement for local authorities' social services departments in the future was a very good one, with an average of 6 per cent. real growth over a three-year period. However, it is also to do with the effectiveness of management within local authorities. The chief inspector's letter to local authorities was intended to remind them of their responsibilities, but it is clear from the SSI survey that more needs to be done in that direction.
Baroness David: Is there bound to be legislation to take effective action about private fostering?
Lord Hunt of Kings Heath: No, my noble friend cannot draw me. She knows that I cannot give future commitment to legislation. The noble Baroness, Lady Barker, was concerned that if we miss the opportunity of legislating on private foster care in the Bill, we would be passing up the chance of doing so for a number of years to come. My point was that in fact this was the third Bill relating to social care issues that we have taken through the House in the past two or three years. I was saying that I am sure that there will be opportunities in the future for further legislation.
Baroness David: But surely legislation will be required at some point, will it not?
Lord Hunt of Kings Heath: There is no doubt that if, for instance, one wanted to introduce a statutory registration scheme in part or in whole, which is being suggested, legislation would be required.
Baroness Barker: With some difficulty I resist the temptation to follow the noble Lord, Lord Northbourne, on one of my favourite subjects; the funding of social services department. I thank the Minister for his reply. There are, however, a couple of
points that need to be made. The noble Lord talked about the great fear when childminding legislation was introduced that childminding would go underground. The evidence is that it has not and that the registration process has worked extremely well. Both parents as users, and single people who operate as childminders, value registration as being important. I cannot see why childminding, in which a child is very rarely with a childminder overnight, should be more strictly regulated than private fostering.5.15 p.m.
Lord Hunt of Kings Heath: I am grateful to the noble Baroness for giving way. The point I was making is that there are differing circumstances. Unlike childminders, many adults who engage in private fostering do not receive remuneration for it. Therefore, the circumstances are different in relation to whether those private foster carers would wholeheartedly embrace a regulatory system. I also said that as part of the review we will look at how the registration for childminders is working, and indeed if there are good things about that which we could relate in the area of private fosterers, will certainly look to do that.
Baroness Barker: I thank the Minister for the clarification and I welcome it. However, on the basis of some of the evidence I have read so far, I am not sure that he is wholly correct about the nature of the relationship between birth parents and private fosterers. In a great many cases, a financial transaction takes place. However, we will not dwell on that.
The point I wish to make is about timing. I do not see why, in the light of 30 years of research and experience, it is not possible to draw from that some of the clear points which recur time and time again. However, I accept that the report of the noble Lord, Lord Laming, will be a very important piece of this particular jigsaw.
One of the problems I have with the process the Minister has outlined is this. The noble Lord, Lord Northbourne, made a good point about what we say here and laws that we make have only limited effect; what happens on the ground is more important. It is quite clear that thousands of people are in breach of the existing regulations simply because they do not know about them. It is getting the information out to people and making them aware that causes the problem.
When the report of the noble Lord, Lord Laming, is produced and when the Government produce their response, a great deal of attention will be focused on this matter. It would be sad if the Government were deemed to be reactive to one particular incident, when all this work has been going on ahead. In withdrawing my amendment and accepting what the Minister says, I would at some further stage like to seek an assurance from him that the provisions of the existing law will be used by the department later this year—when there will be increased attention on this subject—to get the message across about the need to notify private fostering arrangements. Furthermore, there should be
more targeted messages for communities among whom this is a bigger issue than it is in regard to the general public. For the moment I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 43 [Notice of intention to adopt]:
Lord Hunt of Kings Heath moved Amendment No. 69A:
- Page 27, line 12, leave out from first "the" to second "the" and insert "investigation must, so far as practicable, include"
Where an adoption is not happening through an adoption agency—so-called "non-agency cases"—Clause 43 provides that the adoptive applicant has to give notice to the local authority in which he has his home. The local authority then has to arrange for an investigation and report to the court on the case and the suitability of the adopters—an important safeguard for children in cases where an adoption agency has not been involved in selecting and matching the adopters for the child.
At Report stage in another place we introduced amendments to reshape subsection (9) to cover cases where an applicant fulfils the domicile requirements in Clause 47 but does not in law currently have his home in a local authority in England and Wales, perhaps because he is a member of the Armed Forces or a diplomat temporarily stationed abroad. We did not want to block those individuals from adopting under British law simply on those grounds. Therefore, subsection (9) was amended to allow in those cases for us to prescribe in regulations which should be the appropriate local authority where the applicant did not currently have his home in the United Kingdom.
We further amended subsection (5) to make it clear that while the report to the court and the investigation are the responsibility of the local authority, it could arrange for elements of them to be carried out by other suitable organisations. For example, in the case of step parent adoption applications by service families stationed overseas, we would envisage that the Service Families Adoption Agency—a registered voluntary adoption agency—would conduct the investigation and visit the family, as required by Clause 41(7), and would pass the results to the relevant local authority. If the authority was satisfied, it would then submit the report to the court.
Amendment No. 69A completes this change by amending subsection (6), which sets out what the report to the court should cover, to remove the reference to the local authority. This makes it consistent with the position in subsection (5). So the local authority must arrange for the report but may delegate the actual preparation to another body. But whoever does it, the report must as far as practicable cover the suitability of the adopters and any other
matters relevant to the operation of Clause 1, for example, the range of issues set out in the welfare checklist.I hope that on that basis Members of the Committee will support this minor amendment which completes a change we introduced in another place, which was welcomed as a useful additional flexibility for those British families temporarily stationed overseas such as service families and diplomats. I beg to move.
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Suitability of adopters]:
Earl Howe moved Amendment No. 70:
- Page 27, line 39, at end insert—
The noble Earl said: I come now to an amendment which enables us to debate another critically important clause in the Bill, Clause 44. This clause relates to the regulations to be made covering the suitability of persons wishing to adopt a child. It is for me a rather depressing state of affairs that the Bill could consign a matter of such central relevance as this to mere secondary legislation.
I shall not anticipate the debate that we shall have shortly on whether unmarried as well as married couples should be able to become adoptive parents. That is a debate on its own. There is a whole range of other issues which are of the utmost significance for any assessment of whether two particular people are, or are not, fit to become adopters. Clause 44(2) specifies that proper regard should be had to the need for stability and permanence in their relationship.
Stability and permanence are, of course, indispensable qualities in any adoptive placement, but how are they to be determined? What are the indicators of likely stability and permanence, and who will be the judge of them? What other qualities should there be alongside those? Surely, for example, there should be an ability to provide a loving and safe home for the child; an ability to provide the wherewithal for the child's upbringing; an understanding of the individual needs and difficulties of the child; a commitment by the partners to each other as well as to the child; an absence of criminal background or any unsuitable domestic history; and many other qualities besides .
I do not suggest that the face of the Bill should carry every element of the checklist that an adoption agency will be charged with filling out when reaching its conclusions, but we surely ought to have some idea of, and be able to debate, those which the Government regard as being of central importance.
Unfortunately, Clause 44 gives us almost no pointers. That is why I suggest, once again, that the regulations to be placed before us under the clause should be subject to the affirmative procedure in order to guarantee both Houses of Parliament the right to debate them.
I fully concede that this is not something that the Delegated Powers Committee of your Lordships' House felt was necessary. However, this Committee is entitled to take a different view from the Select Committee. It may do so in the light of issues of policy which of course the Select Committee is not empowered to take into account. Bearing in mind that no draft regulations are before this Committee, and that we are not in a position to consider these matters in any depth, I submit that this suggestion is not unreasonable.
I am aware that in their White Paper the Government committed themselves to carrying out a fundamental review of the adoption assessment process, and no doubt we shall have to await the outcome of that exercise. The regulations will, of course, take the results of the review into account.
Meanwhile, however, my noble friend Lord Campbell of Alloway has made a very creative and considered attempt to point Ministers in the right direction on these regulations. I will let him speak to them in his own way. I very much support the thrust of what he proposes which represents a distillation of the matters that we discussed on the first day in Committee. I beg to move.
Lord Campbell of Alloway: I support Amendment No. 70. The presentation of these three grouped amendments to Clause 44 which bear my name starts with Amendment No. 70ZC. That is the trigger clause in primary legislation which determines the legal efficacy of the subordinate legislation under Amendments Nos. 70ZA and 70ZB. I shall not speak to Amendment No. 70ZB as it is in the next grouping. I support it. It is in the name of the noble Lord, Lord Northbourne.
The subordinate legislation under Amendment Nos. 70ZA and 70ZB has to be approved after Royal Assent as proposed in Amendment No. 70. Having considered that, Members of the Committee have been considering this matter with a short reference to the true effect on enforcement of judicial review, which is the only effective means. At the outset, for reasons that are already wholly apparent, perhaps I may make a formal request, which could herald a formal Motion, that Clause 44 should be committed with Clause 4 and Clauses 48 to 51 for debate on the Floor of the House, to which some reference has already been made on Second Reading.
Amendment No. 70ZC is a DIY effort to crystallise a principle; there is no form of hubris about whether it is totally correct. I am seeking to convey the suggestion that the principle is correct, and this could serve as a vehicle for implementing that principle.
The purpose is to limit the exercise of discretion, which is a wholly exceptional circumstance, and to exclude financial constraints. That is in accordance with a precedent that has already been set by the courts on misuse of assessment for special educational needs to curtail expenditure, and the courts have stamped on that.
It serves as a useful precedent for the situation with which we are faced; that is, the matter to which the Minister referred at col. 80 of the Official Report on 27th June, albeit in context with Amendment No. 16 to Clause 4, tabled by my noble friend Lord Howe. Again, in a way and in another context it runs parallel with this. Of course, both seek to establish in primary legislation the parameters in the case of Clause 4, so that there shall be no exercise of discretion beyond what is stated on the face of the Bill—in this case the parameters.
As my noble friend Lord Howe said, it is wholly apparent now that no draft of these implementing regulations, statutory guidance, will be available for your Lordships' consideration before Royal Assent. Is it not wholly requisite that the nature and extent of the exercise of discretion should be considered by your Lordships and establish that in these situations by primary legislation to define and clarify the status of the legal efficacy of the subordinate legislation, which is on its way? Would it not also enhance the due process of parliamentary approval when we come to approve under Amendment No. 70, which is the ultimate safeguard, save for the courts on judicial review to which I shall turn shortly.
This is a very emotive subject and I try to keep it non-emotive. On an objective analysis, I ask whether it is not consistent with the intent of this Bill that these abandoned children should be entitled to some priority—I stress that and it involves financial priority on resources—for their own sakes and for the interests of society.
One then comes to Amendment No. 70ZA. It seeks merely to reflect the substance of the Committee's debate on Amendment No. 7, other than on subsection (5). Again, the opinion of the Committee is sought; this is a probing amendment. I have kept off the turf on subsection (5) because that now lies squarely within the province of the Minister. He has his letters of 20th and 21st June and it would not be appropriate for me at this stage to seek to anticipate. At least I thought it not proper to do so and I trust that the Minister in due course will give his attention to this.
Perhaps I may mop up a few cross-references, because the patchwork is getting very complex and it may help. To a limited extent, paragraph (a) of Amendment No. 70ZA, which is to do with representation and caring for the child, is considered in Amendment No. 66. At some stage, and assuredly not today—or I shall not deal with it—Members of the Committee will have to consider Article 6 of the European Convention of Human Rights and Article 12 of the United Nations convention.
Today have Amendments Nos. 115A and 116ZA as supplementary to the Marshalled list, which I support. I prefer my drafting in paragraph (a) on this issue. It is expressed to ensure that the child is heard but I commend the concept of Amendment No. 116ZA as amending primary legislation and affecting children of general application and putting it on the face of the Bill. That is one way in which one removes oneself from the dilemma of not seeing the drafts of
The structure of the Bill in Clause 44(1) and (2) has been followed in this amendment, subject to Amendment No. 70ZC which affords a qualified duty as regards exercise of discretion. I draw the distinction, which is firm, that there is no absolute duty as proposed by the amendment of my noble friend, Lord Howe, as supported by many noble Lords, including the right reverend Prelate the Bishop of Oxford and myself, on the grounds that, when discretion has already been exercised on an assessment, there really should be no further discretion to decline to implement the assessment.
On the question of judicial review, there is a considerable measure of misunderstanding as to its effect. First, it is a branch of administrative law, in which "unreasonable" has a wholly technical meaning that is not generally understood. It is a purely discretionary remedy within the inherent jurisdiction of the High Court. It may set aside an exercise of discretion if it is contrary to construction—that is, construction of these regulations or statutory guidance—as applicable to the facts of each particular case, but it is does not, and never can, substitute its own opinion of the merits for those who made the decision.
Although the court would have decided otherwise—and, on many occasions, had said so—I have had the conduct of a case on more than one occasion where I have been told, "It's all very well Mr Campbell, we think you're quite right on the merits, but we're not concerned with merits; we're concerned with something quite different." What the courts are concerned with is whether anybody in the same position as the local authority, or provider of services, and so on, or anybody properly directing himself, could—I repeat, could—have made this decision; it is not "would" have made it. If anybody could have made it, they do not say that it is unreasonable, and they do not set it aside. They will only set it aside as unreasonable in the technical sense if they conclude that nobody could have made it.
As must be quite apparent, it is not a wholly effective mechanism. I have conducted more than 50 cases in judicial review, and we all know that it is not an effective mechanism. It is effective as far as it goes, but it is not a review of the merits on appeal by way of a rehearing; and so it is of limited consequence. It may also set aside a decision for unfairness in the administrative process, because it is an administrative jurisdiction, on bias, on the grounds that it was unreasonable in the strict sense to which I referred, or on grounds of error of law as a matter of construction where the devil lies in the detail of the drafting. If challenged, an objective exercise of discretion under Amendment No. 70ZC would be upheld, so on that there would be no problem.
The question of whether deviation from statutory guidance is permissible—the Minister was good enough to write to me about this—is entirely
The importance of mentioning this at this stage is that that decision did not reach the Court of Appeal; it did not reach the Appellate Committee of your Lordships' House; and it has not the status of a leading authority of general application. It is respectfully suggested that it could not be relied upon as a safe or satisfactory precedent for the drafting of statutory guidance under this Bill. I am grateful, and I apologise for having taken some time.
"( ) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
5.30 p.m.
5.45 p.m.
Baroness Blatch: I should like first to support very strongly the notion of using the affirmative resolution procedure. Probably the most critical part of the whole adoption process is making the match between those who are adopting and the child. I cannot think of anything more important than that. I was disappointed to hear the noble Lord, Lord Campbell of Alloway, refer to the fact that we shall not see the draft regulations, guidance or papers regarding the information which will serve as the criteria on which judgments on suitable adoptive placements will be based.
The suitability of any person in regard to adoption, and having regard to the need for, in the first place, stability and permanence of relationship, can mean many things to many people. What we know is that, in the past and in the present, there has been much subjectivity and not enough objectivity. Some prejudicial views have been applied by some involved in the adoption process. So the more we know and the more clearly we can ascertain the criteria laid down to make these judgments, the better it will be. It is so important to know against what criteria those judgments will be made. This should be a matter for the House. That is particularly true if we are not able to see the draft regulations during the Bill's passage.
I should like to comment very briefly on the issue of recommitment. I have enormous sympathy for the notion of recommitting important parts of the Bill. My difficulty is that I do not approve of the Grand Committee process at all. Many do not attend our Sittings in Committee but would be interested in some of our debates. If we went round the Table, I suspect that we would all have a different view on what is important in the Bill, and that other parts of the Bill would be thought appropriate for recommitment. It is a great pity that, when the Bill is considered on the Floor of the House, those rather stricter procedures will kick in. In the Chamber we shall not have this valuable iterative process. That will be lost, and I believe that it is a great pity.
Therefore, I start from the business of saying that the arguments used by the noble Lord, Lord Campbell of Alloway, are appropriate for opposing the whole Grand Committee system itself. I have more difficulty
in saying that little parts of the Bill should be recommitted. However, that is a matter for the Committee to consider.
I believe that we should strive for the greatest possible objectivity and the greatest possible clarity. If we really intend that adoption processes are to work, and if we are to make the most suitable matches between adoptive parents and the children to be adopted, the matter is important enough to come before the Houses of Parliament for their endorsement.
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