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The effect of the amendment is to make it clear that the form for withdrawing of consent to placement for adoption under Clause 18, or advanced consent to adoption, under Clause 19, is to be prescribed in court rules. At the moment, it just says "prescribed". It will be important that there is certainty as to when consent of placement or advanced consent to adoption has been withdrawn, because from that point the agency is under an obligation to return the child under Clauses 30 and 31. That is why Clause 51(8) provides that any such withdrawal needs to be given to the agency either using the prescribed form as set out in subsection (8)(a), or otherwise through a written notice as set out in Clause 51(8)(b). "Notice" is defined in Clause 139 as "notice in writing".
In this amendment, we seek absolute clarity and the removal of any chance of confusion as to who is to prescribe the form for withdrawal of consent. As with the form of consent, the placement and advance consent to adoption, it will be prescribed in court rules by the Lord Chancellor. It will be important that
I seriously question whether this is sustainable under the Human Rights Act. One situation which is not uncommon is for the father of the child to be identified late in care and adoption proceedings, for him to express a wish to be heard on issues relating to his child. His exclusion under these subsections seems to offend against natural justice. I beg to move.
Lord Clement-Jones: I wish briefly to support the noble Earl, Lord Howe, on Amendments Nos. 78A and 78B. It is extraordinary that the consent of the other parent is presumed under subsection (10), in particular. It does seem, without putting it to the test, that this is something that could be challenged under human rights legislation. That is the reason for the deletion.
I should be interested to hear how this provision can be justified. As the Minister has been extremely good so far in justifying a number of provisions the Bill, I am sure that she is charged up for this particular amendment. The provision does seem to go against natural justice, as the noble Earl, Lord Howe, has made plain.
Baroness Andrews: The amendment is slightly complicated and my response will reflect that. Amendments Nos. 78A and 78B seek to remove the provisions in clause 51 that cover situations whereby a mother with parental responsibility has consented to a placement for adoption under Clause 18 and another parent subsequently acquires parental responsibility. It can happen in a variety of ways. The obvious way is when the unmarried father later marries the mother, but it can also happen when he obtains responsibility by agreement or through a court order under Section 4 of the Children Act.
We are doing this essentially to ensure that there is more stability with the placement. To put it bluntly, that is what I understand to be ourgenuinereason for doing this. At the moment, subsections (9) and (10) of Clause 50 provide that in such situations the father will for the purposes of the adoptive placement be deemed to have given his consent under Clause 18, as has the mother. Having acquired parental responsibility, he also is free to withdraw his consent to the placement for adoption at any time until the prospective adopters apply to the court for an adoption order. He will be entitled to receive notice of
The amendment seeks to remove this provision. That is the effect of deleting subsections (9) and (10). The effect would be that, from the point at which the father acquires parental responsibility, legal authority for the placement for adoption will cease because he has not given consent in the first place under Clause 18. That is where the element of instability and discontinuity would occur.
Such provision would cause severe problems. For example, the adoption agency might not necessarily be aware that the father had acquired parental responsibility; that might have been concealed from it by the mother. This can happen in a variety of circumstances. It might happen after consent to placement was given. The mother may decide not to keep in touch with the agency. A whole set of circumstances may surround children in care which makes it difficult to know what relationships continue between the mother and the father.
The result would be that the agency could unknowingly proceed with a legally invalid placement. We can only imagine the destructive consequences. The whole arrangement could unravel if that came to light at a much later stage. It could come to light after an adoption order had been made under Clause 46(4), the order having been based on everyone's assumption that the consent to placement was valid.
When the Committee debated the position of unmarried fathers earlier, I promised that agencies would be under a duty in regulations and guidance to seek out and properly involve unmarried fathers in the process of determining whether a child should be placed for adoption. That again addresses in a positive manner the human rights argument. Where agencies are aware of the unmarried father, they are already under a duty to do that under regulation 7.3 of the Adoption Agencies Regulations 1983 so far as is reasonably practicable. That will be extended.
However, we cannot cater for every case, particularly when the unmarried father is not on the scene at the time of placement but returns later, has a view, and the agency is not made aware of that fact. In those circumstances, the best approach must be that currently taken in the Billto preserve the validity of the placement while giving the father full rights to withdraw consent at the stages which I have identified.
Lord Clement-Jones: I understand the Minister's point that subsections (9) and (10) are there in order not to invalidate the placement. In retrospect it might be that the appropriate consent had not been given. Nevertheless, assuming the other parent has given deemed consent under this section, all the other aspects apply, so that the withdrawal of any presumed consent by that other parent is ineffective if given after an application for an adoption order is made under Clause 51(4). We are also back to the arguments about the court having to give consent if withdrawal of consent applies. We made those arguments when we
Because the other parent who did not give consent but is now deemed to be giving consent under subsections (9) and (10) is dealt with in that way, the other two conditions apply in the same way that they apply to the original parent who gave consent. They cannot withdraw it except under those two conditions.
Baroness Thomas of Walliswood: I have a slightly different question. I think the Minister said that Clauses 9 and 10 say that the other parent was deemed to have given consent, and therefore, because of "in the same terms" in subsection (10), if he turned up later he was also able to withdraw his consent under the same terms as the first parent who had given her consent. Is that what that clause means? It is very difficult to work it through, but that is what I understood from her answer.
Baroness Andrews: There are a number of issues here that collude in notions of change of circumstances and what either parent can do under the circumstances. This is very technical and I would prefer to write a reasoned reply that would take account of the points raised by the noble Baroness, Lady Thomas, and the noble Lord, Lord Clement-Jones.
Earl Howe: I am very grateful once again to the Minister. I particularly appreciate her offer to write. I think she understands that I am uncomfortable with the implication of these subsections. I am grateful to the noble Lord, Lord Clement-Jones, for the way in which he pinpointed the discomfort that we share. The subsections imply that once in the system a child becomes the property of the system. I know that is not the Government's intention, but in certain circumstances it could be the result.
I believe the Minister referred to Clause 46(4), which says that it was possible for a parent or guardian to oppose the making of an adoption order. As I understand it, the parent or guardian has no absolute right; he may only seek leave to the court to do that. I am not sure whether that is sufficient protection. I understand her argument that the validity of the placement needs to be preserved, but between now and Report I need to consider whether the Bill provides the best way of approaching that objective. If possible, we need to look at other solutions. This has been a most helpful debate. For the time being, I beg leave to withdraw the amendment.