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Baroness Howarth of Breckland: It seems clear from talking to practitioners and from involvement in various cases that children are not always represented as the noble Baroness, Lady Scotland, has described. The representation she describes would clearly meet many of the requirements for which people are pressing. Is there some way in which the Government can remind those who are with the children of the position? The lawyers do not always press in the way that is in the child's best interests. It is important that people realise that this provision is available to them and that they press and ensure that the guardian is appointed.
Baroness Scotland of Asthal: I can certainly reassure noble Lords in that regard. As noble Lords will know, the Legal Services Commission already has a framework that permits only those with the quality mark to undertake specialist work involving children
and their families. Now, legally aided work—as we used to call it—will be undertaken only by those with that quality mark and the expertise to undertake it.It is right that improving quality is very important. However, we have also taken steps to ensure that all judicial officers who undertake this work have not only the appropriate ticket to do it but the specific training to make them truly fitted to undertake and do it properly. As noble Lords will know, there is not only judicial training before appointment, but a routine—once every three years—refresher course after appointment. There is also specific training in relation to any new legislation for all those who do this work.
So we are seeking to make every effort to ensure that those involved in this work fully understand the importance of ensuring that the child's voice is heard and that, if at all possible, only that which is to the child's benefit is done.
Baroness Massey of Darwen: I thank the Minister for that typically thorough reply, although she made it without once using her favourite word—robust. I appreciate what she said. I also agree that it is important to consider the whole legislative framework. However, she herself has described the complexity that many find disturbing and difficult.
Like many of us, the noble Baroness, Lady David, has gone on and on about the need to listen to children and to take their views into account. We shall continue to do that. Despite the Minister's explanation, and like the noble Baroness, Lady Howarth, I find it difficult to understand the complexities in public and private law in relation to children. In an earlier debate, the noble Baroness, Lady Thornton, I think, described that complexity as preposterous. Many of the children's organisations to which the Minister referred are equally concerned about these issues.
Welfare checklists, guidelines and cross referencing between Acts can be confusing. I suspect that things sometimes fall through the mesh. I would still be interested in introducing in this Bill something to draw together all the components.
I shall read very carefully all that has been said about the issue of listening to children and the representation of children. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 [Restriction on advertisements etc.]
6.30 p.m.
Earl Howe moved Amendment No. 116A:
- Page 69, line 7, after "from" insert "or bring a child to"
The noble Earl said: Clause 118 of the Bill takes us into Part 3, which begins by setting out a range of provisions that restrict the publication of advertisements relating to adoption. A parent or guardian of a child cannot advertise the fact that he or she wishes a child to be adopted, nor can anyone advertise the fact that they wish to adopt a child; nor can anyone other than an adoption agency advertise their services to facilitate an adoption. These
provisions largely repeat the corresponding section of the Adoption Act 1976 and are surely right and necessary.One cannot have a free for all in the field of adoption. Any licence to trump or circumvent the laid down procedures risks doing the one thing that the Bill sets its face against, which is jeopardising the welfare of children. A new element though is the prohibition of any advertisement that indicates the fact that someone is willing to remove a child from the UK for the purposes of adoption. I am entirely in sympathy with this provision as well, because without it one would effectively have a licence to engage in an activity that is uncomfortably close to that of child trafficking.
There may well be circumstances in which it is appropriate for a child from this country to be adopted by a family abroad, but it is not right for such a practice, as a generality, to be encouraged by means of advertisements.
There is, however, a slight puzzle in relation to paragraph (e) of subsection (2). If it is right to restrict advertisements to the effect that a person is willing to remove a child from the UK for the purposes of adoption, it is surely appropriate that advertisements that indicate a person would be willing to bring a child into the UK should be similarly restricted. This is the very simple purpose of my amendment. I do not believe we should countenance situations where people are free to put themselves forward as facilitators of intercountry adoption, other than individuals who are properly accredited and approved.
Subsection (2)(c) sweeps up a number of activities that will be illegal under Clause 90(2), but I cannot see that any of these correspond to the activity referred to in my amendment. I beg to move.
Lord Hunt of Kings Heath: I have considered this very carefully, and the noble Earl, Lord Howe, is quite right to make reference to Section 92. The point he makes is absolutely right, and I have no disagreement with him at all about the principle. My view is that we are covered because of the link between the clause that he has amended and Section 92. The combined effect of the safeguards provided by both clauses would be to prevent a person advertising that he is willing to bring a child to the UK for the purposes of adoption.
The steps that are set out in Clause 92 are relevant to the concern at the root of this amendment about offering to find a child for adoption. For example, where one person says to another that he can locate a child for that person to adopt, he will be caught by paragraph (c) of Clause 92. When a person, a parent of a child or an intermediary who has already identified a child to be adopted offers that child to another for adoption, the person who so offered would be caught by paragraph (d) of Clause 92.
In addition, if that person were to hand over a child for adoption to the person who would adopt him or to someone else who would pass the child to the adopter, he would be caught by paragraph (e). If he entered into an agreement for the purpose of facilitating the adoption of a child, he would be caught by paragraph
(g). If he initiated or took part in negotiations intended to lead to an agreement within paragraph (g) for the adoption of a child, or an agreement to facilitate the adoption of a child, he would be caught by paragraph (h). In relation to causing another person to take any of these steps, he would be caught by paragraph (i).It is an offence under Clause 118 to advertise a willingness to do any of these things, so a person who advertised in the UK his willingness to bring a child to the UK for the purposes of adoption would be caught by the Bill's provisions. If a person were to advertise in such a way as to avoid falling within these restrictions, we consider that if he then made arrangements for an adoption in England or Wales his actions would be caught directly by Clause 90 with its restrictions on who may arrange adoptions.
I hope that my explanation has made matters clear to the noble Earl and that he will agree that his amendment is not needed. I have no disagreement at all with the point that he seeks to make.
Earl Howe: I am most grateful to the Minister and, on the basis of what he said, I am satisfied. I read Clause 90(2) and I was not clear that my point was covered by it. However, the Minister said that it is and that is an extremely useful marker if ever this point were to come up before the courts. Nevertheless, I should like to think further about this matter between now and Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Minor and consequential amendments]:
Lord Hunt of Kings Heath moved Amendment No. 117:
- Page 108, line 12, at end insert—
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Schedule 4 [Transitional and transitory provisions and savings]:
Lord Hunt of Kings Heath moved Amendment No. 117A:
"At the end of section 5 (registration authorities) there is inserted—
"(2) This section is subject to section 36A."
In section 11 (requirement to register), in subsection (3), for "reference in subsection (1) to an agency does" there is substituted "references in subsections (1) and (2) to an agency do"."
Page 110, line 20, at end insert—
3A (1) In section 9 of the Adoption Act 1976—
(a) for "Secretary of State" in subsections (2) and (3) there is substituted "the appropriate Minister", and
(b) at the end of that section there is inserted—
"(5) In this section and section 9A, "the appropriate Minister" means—
(a) in relation to England, the Secretary of State,
(b) in relation to Wales, the National Assembly for Wales,
and in relation to England and Wales, means the Secretary of State and the Assembly acting jointly."
(2) Until the commencement of the repeal by this Act of section 9(2) of the Adoption Act 1976, section 36A of the Care Standards Act 2000 (inserted by section (Distribution of functions in relation to registered adoption societies) of this Act) is to have effect as if, after "2002", there were inserted "or under section 9(2) of the Adoption Act 1976"."
The noble Lord said: This group of amendments follows on from the amendments that we debated on 24th June dealing with the registration of voluntary adoption agencies. As we then discussed, voluntary adoption agencies may be registered in England but have branches in Wales, or be registered in Wales but have branches in England. Regulations governing the operation of voluntary adoption agencies may be made under Clause 9 of the Bill jointly by the Secretary of State and the National Assembly for Wales.
However, we also want to make similar regulations governing voluntary adoption agencies before the Bill is brought into force. The National Care Standards Commission is to take over regulation of voluntary adoption agencies from 2003 in advance of the main implementation of the Bill and we want to make regulations to accompany this and underpin the new arrangements.
For regulations governing voluntary adoption agencies made under the 1976 Act, we would like to have the power to make these regulations jointly by the Secretary of State and the National Assembly for Wales because of the issues concerning the cross-border operation of voluntary adoption agencies which I explained when we debated Government Amendments Nos. 50, 106, 117 and 119 on 24th June.
There are other regulations with cross-border implications that we want to make before full implementation of the Bill in 2004. We have said that we aim to establish the independent review mechanism over 2003. The provisions relating to the independent review mechanism allow for one body to perform this function across England and Wales. Paragraph 4 of Schedule 4 inserts new Section 9A into the 1976 Act to provide for the early implementation of the independent review mechanism. In line with the provision in Section 9, we would like to provide for the regulations in this section to be appropriate Minister powers as well. Amendments Nos. 117B to 117G therefore make the powers in new Section 9A appropriate Minister powers.
These are detailed amendments but they are in essence consequential on the approach we are taking to resolve the cross-border registration and regulation problem, which we would like to see implemented before the implementation of the Bill. That is why these consequential amendments are now being proposed. I hope that Members of the Committee will support that. I beg to move.
On Question, amendment agreed to.
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