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Lord Campbell of Alloway: I interpose very briefly. Amendment No. 76 makes a presumption of pre-eminence of the parental wish on withholding consent. That is the situation in the case I referred to on Second Reading. I am not being critical of my noble friend, there is a misunderstanding. This is not a simple welfare provision. It is the antithesis of a simple welfare provision. The simple welfare provision was established in the case of In Re W, and this is in total conflict with it. That is why I oppose the amendment. Amendment No. 77 is hardly appropriate.

Amendment No. 78 makes no sense. It refers to "improper duress or inducement". The parent is there. In In Re W the young girl was there and gave evidence. There was no question of duress. If there was any hint of duress the judge would get on to it very quickly indeed. This is a wholly unnecessary provision. It would not matter if we put it in the Bill because it would not do anything. Amendment No. 76 would alter the whole structure of parental consent and I therefore oppose it.

Lord Clement-Jones: I shall be brief. I am not going to trade the effect of Amendment No. 76 too greatly

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with the noble Lord, Lord Campbell of Alloway. That could take far too long. He is right that it would considerably alter the impact of the clause. That is the intention. I shall revert to the usual pattern of this Committee and support the amendment of the noble Earl, Earl Howe.

The noble Earl set out his stall extremely effectively. It would simply be a matter of underlining the reason for our previous amendments, which were in the nature of how placement orders are made. This is very cognate. It is the finality of adoption which again is so relevant. If placement orders were made in every case through a court process, this would not be necessary. The finality of the adoption order process means that a different test is needed in these circumstances. This formulation would give greater protection and would not mean that the sole welfare ground would allow that parental consent to be dispensed with.

Baroness Howarth of Breckland: I, too, support amendment. I recognise that the Government wish to speed up adoption. In many circumstances that is right, bearing in mind the ethos and press that the Bill takes forward.

I began my career in social work under the Children and Young Persons Act 1963, which developed ideas and projects to prevent the breakdown of family life. It was the era of good social work support and financial intervention, ensuring good community intervention and housing for vulnerable families. In the late 1980s and 1990s, we saw the erosion of the support to local authorities. Many of those principles and programmes were lost.

Not all birth families are appropriate for the placement of children. I have spent most of my life dealing with child protection and family violence and abuse. Where possible, we should make every effort to ensure that the families have had support. I hope that the amendments put forward by the noble Earl would help that to happen.

The Department of Health's consultation document about effective adoption support says very little about local support for groups of birth parents. As I have said before, if we are to keep this balance we have to remember that there are many women—certainly single mothers—who have said that if only they had had the support that seems to be available post-adoption under the present regime, they may have been able to provide a home for their child.

I simply caution the Government in this. We must pay real attention to having checklists that provide for birth parents to be properly investigated. We must give them every opportunity. In the long run, the birth family will be able to give all that the child needs.

Baroness Masham of Ilton: On Amendment No. 76, would the wishes of the natural mother be over-ridden if she wanted her child to go to a specific family of her religion? Whatever the modern life is, some people feel very strongly about their religion. What would the noble Earl's amendment mean in that respect?

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Earl Howe: Nothing in my amendment over-rides Clause 1(5) or the provisions in Clause 1, which we all agree need to be the basis behind any adoption decisions.

6.45 p.m.

Baroness Andrews: I am grateful to the noble Earl, and pleased that he has received such reassuring support on this amendment. I was worried about the injuries he received with the last amendment, because we all know him to be a most splendid fellow.

This debate will not generate as much passion, although there will be a different sort of passion. There are more technical arguments to be had here.

I will deal with this in a little detail because it raises important questions. It is at the heart of the Bill. There can be nothing more serious than enabling a child to be removed from the parent and placed with another family.

I assure the noble Baroness, Lady Howarth, that we are not concerned with speed here. We are very much concerned that the right decision is made in terms of the rights of the birth parent and the rights of the child. Our intention is to strike a balance. I shall explain why we believe that our clause is right.

The clause covers the definition of consent and the circumstances in which it may be dispensed with. In the context of adoption, we are talking about changing lifelong legal effects, which is why we need to be so certain. Therefore, we recognise that the appropriate test for dispensation is critical. It is very difficult.

I pay tribute to the people in the stakeholders groups and in the Committee who have wrestled with these definitions and with the attempt to strengthen what they see as the problem of rights while maintaining the balance. We have wrestled over the past few years to get this right so we do recognise the sincerity of the concerns but we believe that the formulation already in the Bill is more appropriate and preferable.

The broad principles have been alluded to by the noble Earl already. I refer to the founding principle set out in Clause 1 which commands all-party agreement and which underpins the Bill, as it does the Children Act; namely, that the child's welfare should be the paramount consideration and the deciding factor for courts and adoption agencies in coming to any decision relating to the adoption of a child. That is the great step forward that we are making in the Bill. At the same time we have given appropriate assurances that the views, interests and capabilities of parents and relatives are essential elements of that decision.

The second principle that has shaped our approach is one of process. It is the need to set out in legislation a clear and broad framework for the courts themselves that indicates the test that needs to be met—in this case that the child's welfare requires parental consent to be dispensed with. The fundamental matter that they must address in coming to any decision to make that dispensation is the welfare checklist that is set out in Clause 1.

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We do not want to make that framework overly prescriptive. We want to avoid reducing or fettering the court's discretion to consider and weigh up the detailed circumstances of each individual case that comes before it. That point was well made by the noble Lord, Lord Campbell of Alloway, on Second Reading.

Amendment No. 76 seeks to alter the provisions in Clause 51(1). As currently drafted, the clause provides that the court may only dispense with a parent or guardian's consent in two circumstances. The first is relatively simple. It is where the parent or the guardian cannot be found or is incapble of giving consent, perhaps because of a serious mental or physical illness. Perhaps I should say that we would certainly expect the courts to be satisfied in the first instance that reasonable steps appropriate to the situation would have been taken to find the parent or guardian. Last week in Committee we discussed in passing the sadness of babies found abandoned on the steps of Temple Church. In that situation I suspect that it would be difficult to find either the father or the mother, but there will be many situations where the process will be far easier.

The second circumstance where parental consent may be dispensed with is where the child's welfare expressly requires consent to be dispensed with. I want to stress the term "requires". I have been concerned by what has been said this afternoon. Some concern has been expressed that this test in Clause 51(1) is a trivial one which will be easily met, that it is a simple welfare test and that it might indeed lead to adoptions being made against the parents' wishes in difficult or marginal cases.

I want to reassure the Committee that we do not believe that that is the case. The court has to judge the child's welfare, which includes its mental, physical and emotional needs—a harsh set of criteria—not just its wishes and feelings. We are requiring the court to dispense with parental consent to adoption. That is not a judgment that can be taken lightly. I see the noble Baroness, Lady Howarth, nodding her head in agreement. It is not a decision that is taken lightly. It is not a test that would be met in marginal cases.

That is the provision that will now apply in contested placement orders or adoption orders. It is linked to Clause 1 which puts the welfare of the child at the heart of the Bill. It is a different test from that currently set out in Section 16 of the 1976 Act and we believe that it is a better test. Under current legislation the court may dispense with the consent of the parents where it considers that that consent is being withheld unreasonably. The court considers in such cases what a reasonable parent would do in the particular circumstances of that individual case. Case law has established in In Re W—in which the noble Lord, Lord Campbell, was such a distinguished participant—and in subsequent judgments, that in determining what a reasonable parent's attitude would be the welfare of the child was a leading consideration. The parents become the focus of the decision but the welfare of the child is the critical factor. By making the welfare of the child paramount in the Bill we are again moving forward from this position. Ultimately, even in these

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most difficult of contested cases, the paramountcy principle must hold and must be considered as the central overriding concern.

Again I would stress that scrutiny is implied in the term "welfare" and in the checklist. This is not a vague notion of a general well-being; we are talking about range and complexity of needs. We have heard this afternoon in a previous debate of challenging, difficult, hard to place children with complex histories of abuse and trauma. Those needs have to be assessed against the test I have mentioned. It is clear that the consideration of the views, wishes, rights and interests of the parents, and their capacity to care for the child, as defined in Clause 1(4)(f)(ii), is a critical factor. We define that capacity as, for example, the relationship the child has with parents or relatives, the prospect of that continuing and the willingness and ability of parents or relatives to develop a secure environment in which the child can flourish.

It is also worth remembering that the court is not limited to making a placement or an adoption order, it can make a variety of orders; it can make a residence order. I address the point raised about the finality of adoption and the difference between placement and adoption. Indeed, there is a significant difference between a placement order and a final adoption order. However, we are aiming at consistency across the two types of orders.

When the court comes to judge whether the child is ready for adoption and whether to make an adoption order, there will be other considerations which the court will have to take into account. It is not just a matter of the list; the list is a starting point. There will be many other considerations which will be different from the considerations that are made under a placement order. We believe that that is properly left to the courts. As regards contested placement order or adoption order cases, we have not just provided in the welfare test for the criteria to be weighed up as fully as possible; there is also an extra safeguard.

I come to another point raised by the noble Earl. He expressed concern about the application of the Human Rights Act. I reassure the Committee that we are entirely clear that the provisions of the Bill are consistent with the Human Rights Act and that the courts will have to apply the provisions of the Bill when it is enacted in the context of ECHR case law and obviously in relation to Article 8 which refers to respect for family and private life. Any interference in those rights must be necessary and proportional. To quote the case law on this, the leading case is Johanson v. Norway [1996] which makes it clear that


    "Deprivation of parental rights and access should only occur in exceptional circumstances and would be justified if motivated by an overriding requirement pertaining to the child's best interests".

Therefore, it is not a case of trivial criteria applying. That consideration will be observed by the court.

I turn again to the amendment. The structure of the Bill provides an appropriate test for protecting the rights of parents but in a way which is consistent with the paramountcy of the welfare of the child. We do not

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believe that the amendments we are considering would achieve that. Amendment No. 76 would alter subsection (1)(b) of Clause 51 so that instead of the courts being able to dispense with parental consent to adoption because the child's welfare required it, they could do so only if they concluded that adoption would be so significantly better for the child than any other option as to justify overriding parental wishes.

The two arguments that emerge from the logic of the provision is that, first, it will ensure that proper weight is given to parents' wishes and their rights in respect of the child, and, secondly, it will provide a clear threshold for dispensing with consent. I have addressed the first argument in the sense that I have identified three different ways in which the parents' rights are protected: first, the requirement argument; secondly, the fact that there is explicit protection of parental interests in Clause 1; and, thirdly, because the courts will have to observe European law and the Human Rights Act. Those safeguards are in place. The latter were recognised by the British Agencies for Adoption and Fostering, when it gave evidence on this issue last March to the Select Committee.

On the second argument, we come to the form of words which has been specifically chosen. We believe that those words carry the risk of cutting across the principle and the operation of paramountcy of a child's welfare. As I have said, we fully recognise the difficulty that has been addressed and the thought that has gone into finding a better form of words, in the view of the noble Earl. However, simply put, it is very difficult to be clear as to what,


    "so significantly better . . . to justify overriding the parent's wishes",

actually means, and how it would work.

To take what might be seen as a parallel, provision in Section 33 of the Children Act that applies to care orders provides a clear threshold. A care order cannot be made unless the court is satisfied that the child is at risk of "significant harm". Of course, that is the same threshold that applies to placement orders, because one cannot make a placement order unless the child can be seen to be at risk of significant harm, or already has a care order. However, the problem is that "significant harm" is a tangible concept but "significantly better" is not.

"Significant harm" encompasses a body of evidence that provides parameters and definitions. It is defined in the Children Act as a starting point. The term "so significantly better" implies a relative judgment with the court invited to make a comparison between a hypothetical situation and not one judgment, but three. Is adoption itself better? Is it significantly better? Alternatively, is it so significantly better that it justifies overriding parental consent? We have to ask, better than what? On what basis is this judgment made? Are we talking about material grounds here, and about what can be offered to the child in terms of resources? Are we talking about emotional grounds? Moreover, when does "better" become "significantly better"? What is the scale of significance? What are the break points? What are the bench-marks?

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I am also unclear about what it would add to the process itself. At the end of the day, the court would need to consider precisely the range of factors set out in the welfare checklist. There is no "better". That is established by the Children Act. It is expanded in the context of adoption, but it is the same tried-and-tested provision. None of that is defined for the court; there are no starting points. The danger is that it would be a subjective test with little guidance for the court. It is difficult to discern whether it could provide the kind of clear test that we want to see. I do not want to be pejorative to lawyers—it is too dangerous in this place—but I cannot imagine that it would do anything but generate a lot of profit and pleasure. It might even have the effect of raising the legal threshold. Indeed, it might actually make it even more difficult to place children for adoption.

Our deep concern in the context of the Bill is that we believe this could put at risk the paramountcy principle. It would be difficult to hold the notion that the child's welfare is paramount while at the same time directing the court's attention to a potentially additional nebulous test. We have put a lot of thought into this matter. We feel that we have a better solution, which will protect the rights of parents, both explicitly and robustly, in a way that is consistent with what we want to see in this Bill for children. I cannot, therefore, support the proposed change. I am tempering my kind words to the noble Earl by saying that I cannot accept the change that he suggests to the clause.

I turn to Amendment No. 77. The literal effect of this amendment would be to enable the court to dispense with the parents' consent for adoption; in other words, to make an adoption order even if the parents were opposed, provided that the courts were satisfied that the parents had received written information on the alternatives. That cannot have been the intention. It is possible that it is intended to highlight the importance of proper counselling, which is something about which we are serious. I have a two-page briefing note in my file that outlines the process of counselling and support for parents. I believe that my noble friend alluded earlier to the fact that that is a very rigorous process.

In addition, our National Adoption Standards make it clear that adoption agencies and local authorities should make every effort to ensure that birth parents have a full understanding of the process, and of the legal implications involved. Where adoption is considered for a child in care, we would expect the social services department in its work with the birth family to discuss all the implications. Again, we have talked about ways of raising performance and improvement in that area.

The Schedule 2 report which, under current court rules, the local authority must complete for every adoption order, obliges the local authority to report to the court the results of its investigation into the case, including an account of the alternatives that have been considered. It is envisaged that the reports the adoption agencies will have to provide under Clause 42 and those that local authorities must provide under

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Clause 43, will also cover this point. So the courts can be secure in the knowledge that the alternatives to adoption have been considered.

Finally, any consent to placement for adoption and to an adoption order must, of course, be witnessed by the CAFCASS officer, who, as we have discussed at other stages of the Bill in relation to placement, will have an obligation to ensure that the parents understand what they are agreeing to and the seriousness of the step, and must, as stated in Clause 99(1), report that to the court. I reiterate, therefore, that we are committed to ensure that all the alternatives are properly explored and that the parents are counselled and fully aware of the alternatives.

Amendment No. 78 expands on the definition of "consent", as set out in subsection (5). I take the point robustly put by the noble Lord, Lord Campbell of Alloway, that the amendment suggests that "consent" should be defined as,


    "consent given unconditionally without improper duress or inducement and with full understanding of what is involved".

I sympathise with the intentions, but I suggest that the Bill already provides a clear definition. My first concern is with the words "improper inducement". I believe that they might even risk giving the impression that there was a concept of "proper inducement". We might think of it as unconditional, but the reference to "duress" risks confusing the picture.

Perhaps I may reassure the noble Lord. In law, duress, alongside mistake and fraud, is already one of the legal grounds on which consent can be vitiated, so it is not necessary to mention it explicitly. On that basis, I hope that Members of the Committee will understand why we do not believe it is a helpful addition to the Bill.

It has been a very thoughtful debate. I am grateful that we have had had this opportunity. Again, I seek the forgiveness of the Committee for having gone into such detail. But it is important to have that on the record, not least for stakeholders outside this House to know that we have addressed their concerns seriously and have thought hard about how we can deal with the balance of what the Bill attempts to do.

7 p.m.

Earl Howe: The noble Baroness need make no apology whatsoever for having given us such a clear and helpful reply. I should point out to her that that is the point of this Committee proceeding. Indeed, if it enables us all to understand what the Bill is saying, as well as the Government's intention, it may obviate the need to bring amendments back on Report. I do not promise anything at this stage because I wish to read the noble Baroness's comments carefully. I thank the Minister for her extremely helpful and illuminating response.

I also congratulate the Minister on her secret weapon in the form of my noble friend Lord Campbell of Alloway, whose opinions and experience we all respect. I would never seek to belittle the force of existing case law. However, as I am sure my noble

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friend will understand, my remarks were directed in the context of parallel considerations, particularly in the context of European law. I am delighted that the noble Baroness was able to cover that aspect so comprehensively. She suggested that the phrase "so significantly better" was too vague and too insubstantial to be inserted in the Bill. I shall have to think about that.

I still believe that the test in relation to dispensing with parental consent, as proposed in the Bill, is somewhat broad. As it reads, it gives too little encouragement to consider alternative options. The point of tabling the amendment was to seek a way of inserting a clearly defined threshold to be crossed before parental consent can be dispensed with. The court needs to ask itself what are the needs of the child, what is the scale of potential advantage to the child of having a new family, and whether it is satisfied that the likely benefit of adoption is so significantly better when compared with other options as to justify the adoption order.

The Minister suggested that this would give rise to a lawyers' field day. An alternative view might be that judges are there to judge and that that is their job. They do it all the time, they do it very well, and they do it on the strength of the evidence presented to them. Nevertheless, I thank the Minister again. It has been a very helpful debate. I beg leave, for the time being, to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 77 and 78 not moved.]


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