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The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): In responding to the amendment of the noble Lord, Lord Clement-Jones, I should say that I recognise the importance of the issues that he has brought before the Committee today. By implication, he and the noble Earl, Lord Howe, have emphasised the importance of these new special guardianship provisions and of ensuring that the procedures are as robust as possible and that, where appropriate, the voice of the child is indeed heard.
In responding to the amendment, it might be helpful if I set out in some detail the provisions for the new special guardianship order. It is a new development, and the idea of a new status was proposed in the original PIU report following the Prime Minister's adoption review. It received widespread support in the
Special guardianship is aimed at meeting the needs of children for whom adoption is not appropriate, but who could still benefit from permanent, legally secure placements. We know that children value the sense of legal security and permanence that can come with a court order. The intention, therefore, is to give the special guardian clear responsibility, as the noble Lord, Lord Clement-Jones, said, for all day-to-day decisions about caring for the child or young person and for taking decisions about his or her upbringing. Unlike adoption, however, the order retains the basic legal link with the birth parents, who remain legally the child's parents although their ability to exercise parental responsibility is limited. They retain the right to consent or not to the child's adoption or placement for adoption.
The White Paper suggested that special guardianship might be appropriate for some older children who may prefer, for example, being looked after in long-term foster placements, who do not wish to be legally separated from their birth parents but could benefit from greater legal security and permanence. It could be applicable to some children being cared for on a permanent basis by members of their wider family. We know that some minority ethnic communities have religious or cultural difficulties with adoption as set out in the law. Again, special guardianship orders may well have a use here.
At present, such children would probably either be looked after by local authority foster parents or informally. Where adoption is not appropriate, the only alternative legally-secure option available is a residence order. While a residence order is helpful in some circumstances, it also has its limitations. The new order is intended to offer more than a residence order in terms of the security it brings and the support package that may be provided. We shall debate support packages in a later group of amendments.
The special guardianship order is therefore designed to be flexible enough to work in a range of situations including, for example, where there is extensive and regular contact with the birth family, and instances where that would not be appropriate but where nevertheless it is desirable to retain the basic legal link between the child and the parent. We clearly want to see this order used successfully. We are therefore placing in the Bill a duty on local authorities to make arrangements to provide support services for special guardianship placements. We anticipate that those support services will operate in a similar manner to adoption support services.
I say again that the new provisions have been widely welcomed as offering a positive new option for delivering permanence for children. I also give an assurance that we intend to consult widely on the rules, regulations and guidance that will accompany the implementation of these provisions.
I turn to the specific amendments before us. Amendment No. 107A proposes adding a new subsection to New Section 14A, which would mean that a children's guardian would have to be appointed by the court in any proceedings relating to the making of a special guardianship order unless the court was satisfied that it was not necessary to do so in order to safeguard the children's interest. Before addressing the point specifically, it might be helpful if I explain the process that would be gone through before a court would make a special guardianship order.
New Section 14A sets out who may apply for a special guardianship order and the process for making an application. A person in whose favour a special guardianship order is made is a "special guardian". Applicants must give three months' written notice to the local authority of their intention to apply for the order. The local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters.
We intend to set out in regulations the matters to be covered by the report. Naturally, I listened with care to the points made by both the noble Lord and the noble Earl in relation to the responsibility of the local authority in bringing a report before the courts. I want to assure noble Lords that it is intended to use the regulations to ensure that there is a rigorous process for assessing the suitability of prospective special guardians. We will consult on how that assessment process will work. However, it is envisaged at this stage that statutory guidance will require the results of earlier relevant assessments to be taken into account; for example where the applicants are approved foster carers. The provisions allow the local authority to engage the assistance of other organisations in preparing these assessment reports. It may be, for example, that voluntary adoption agencies' experience in assessment would make them suitable organisations to help local authorities in this area.
I want to reiterate that the court cannot make an order unless it has received a report of this kind, covering the suitability of the people concerned to be special guardians. The involvement of the social services department in the process and the requirements we make on what the report to the court should cover, will ensure that issues of the welfare of the child and his interests are investigated and reported to the court. In addition, the Government intend to provide in court rules that a CAFCASS officer will be appointed in appropriate special guardianship proceedings; this will be set out in court rules.
As has been made clear in earlier debates, the Government are planning to consult thoroughly on the content of those rules, including when a CAFCASS children's guardian should be appointed. However, at this stage and subject to the consultation, which will be an open consultation, we envisage that a CAFCASS officer will be appointed in most cases where the court is considering a special guardianship order. We want to consider carefully the circumstances when a CAFCASS officer should be appointed in cases
To offer an example here: it might not be appropriate or necessary to appoint the child as a party and have a children's guardian in cases where the application is for a variation of the terms of the special guardianship order, which is agreed by all parties. We would, of course, expect the child's views to be sought out and taken into account on such occasions but it might not be necessary for a children's guardian to be appointed for this to happen. There are other routes to ensure that the court has the child's views, as I shall explain.
Currently, children's views are generally put before the court in private law Section 8 proceedings within the CAFCASS officer's report on matters relating to the welfare of the child. The Lord Chancellor, my noble and learned friend, may make regulations specifying matters to be dealt with in any report. In addition, the court can make particular directions as to matters to be included in the report.
Rule 4.11B of the Family Proceedings Rules requires the CAFCASS officer, known as the child and family reporter, to notify the child of the contents of his report as he considers appropriate to the age and understanding of the child, including any reference to the child's own views on the application and the recommendation of the CAFCASS officer. Rule 4.11B(5) also requires the child and the family reporter to consider whether it is in the best interests of the child to be made a party to the proceedings.
The Family Proceedings Rules 1991 already allow a child to be made a party to private law proceedings where the court considers it appropriate to do so; for example, where expert evidence has to be adduced by a guardian ad litem on behalf of the child, or where the child is of sufficient age and understanding to instruct a solicitor.
The court will make the child a respondent where it will be in the child's best interest, and CAFCASS has taken over the Official Solicitor's former role in such cases. A child being separately represented would involve a lawyer being instructed to put evidence before the court on behalf of the child. If there is a guardian ad litem, the guardian will instruct the solicitor. If the child is mature enough to instruct a solicitor directly, then the court may allow him or her to do so. In those circumstances, the court would consider very carefully whether it would be in the child's interests to listen to the evidence given by his or her parents in the case and give his or her own evidence.
As my noble friend Lady Scotland told the Committee earlier this week, the Government are currently undertaking a scoping exercise before undertaking wider consultation on how children are represented in private law Children Act proceedings. The consultation process we plan will be with those agencies who are intimately connected with children and those more broadly concerned. The aim is to try to find the best conduit for the child's voice, so that his
Separately, in the run up to the implementation of the special guardianship provisions in the Bill, we will consult on the associated court rules before they come into effect. These rules will set out not only the circumstances in which CAFCASS officers must be appointed, but also their duties in each case. Special guardianship orders are an innovation, and it is right that we should have the flexibility through court rules to respond to whatever the consultation tells us in the most appropriate manner.
I hope Members of the Committee will feel that I have responded sympathetically to the key points they have made, and that the process of the consultation that I have outlined will ensure that where appropriateand it will be appropriate in many casesthe child's voice is heard.
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