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Earl Howe: My Lords, I congratulate my noble friend on his amendments, which he presented most cogently, as one would expect from him. I very much support the arguments that he advanced. He will forgive me, I hope, if I do not anticipate too far the remarks that I shall make on my own amendment, Amendment No. 4. However, I share my noble friend's view that the wishes of the child are of critical importance in adoption proceedings. We need to be sure that the procedures that we employ achieve the desired result.
I like the fact that Amendment No. 1 speaks of children's views being expressed in their own words, taking into account their level of understanding. I was glad to hear that this does not mean that the child needs to appear in court in person—however, he may, as my noble friend explained. Appearance in open court is, after all, an intimidating business for an adult, let alone a child.
I very much favour the thrust and the purport of Amendment No. 2. My noble friend's point about the court retaining a supervisory jurisdiction where it so decides, is attractive. Adopters, when they take responsibility for a child, assume obligations, which
they should fulfil. Although, I confess, I am not completely clear about the circumstances in which a court's directions could be reviewed, no doubt that could be set out under the provisions of Amendment No. 3.
Baroness Barker: My Lords, I, too, welcome the proposals put forward by the noble Lord, Lord Campbell of Alloway. In moving his amendment, the noble Lord gave the House a flavour of our discussions in Grand Committee. We had many searching and interesting discussions, during which many people on different sides changed their views and their minds.
These amendments are extremely helpful. We have spent much time during the passage of this Bill discussing the role of courts. We have talked at considerable length about the extent to which court procedures can be a barrier to finding the right solution for a child. I remind noble Lords that the Bill's founding principle is that the welfare of the child throughout his or her life shall be paramount. It is helpful to have at the top of the Bill a system that will work in harmony with that proposal.
It is helpful to start proceedings with a reminder that the voice of children is the one factor that has greatly concerned many of us. I shared with the House earlier the fact that when the Bill first appeared a few months ago, my colleagues and I tried to read it each from a different perspective—from that of an adoption agency, a prospective adoptive parent, and a child. It has been an instructive way to set about looking at the legislation. We have been concerned that the primary legislation has not sufficiently safeguarded the voice of the child. The very concise amendments proposed by the noble Lord, Lord Campbell of Alloway, go to the heart of the Bill in a helpful way. I am therefore pleased to lend them our support.
Lord Northbourne: My Lords, I support the view, expressed in this and other parts of the Bill, that the voice of the child should be heard. My point is slightly peripheral; the noble Lord might consider including it in his consultation document. Often, when a child has given its opinion, it does not understand why those views were not, or apparently not, taken into account. It is important that if children are consulted, there should be a clear understanding that it must be explained to them carefully why their views appear not to have been taken into account if that is the case.
Baroness Thomas of Walliswood: My Lords, having spoken at a similar stage about representation in Grand Committee, I am glad to see the noble Lord, Lord Campbell of Alloway, attempt to put that issue at the top of the Bill, as I was keen to do. He has done that very subtly. As he said, the provision allows flexibility whereby the approach could change over time with experience. The Lord Chancellor's rules can be changed without going through a legislative process. I do not want to anticipate our later discussion on other amendments about representation but I was a little concerned at the different approach on human rights, to which the noble Lord also
referred, taken in documents supplied to us from lobbyists and from the Lord Chancellor, through the noble Baroness, Lady Scotland. She concentrated on the rights of parents under Article 8 of the ECHR, whereas many people have concentrated on the right of children to have representation under Article 6. That is yet to be determined during the passage of the Bill. The noble Lord, Lord Campbell of Alloway, has suggested an interesting approach to the extremely important idea of representation. I do not mean representation of feelings and wishes, but representation of the interests of the child, which is quite a different matter. The noble Lord has triumphed in a way by giving us another chance to make certain that we get the human rights aspect of the Bill correct in every way. I hope that the Minister will be able to take up the interesting points that we have all raised.3.30 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I echo the remarks of the noble Baroness, Lady Barker, in thanking the noble Lord, Lord Campbell of Alloway, for his constructive comments, which very much bear out our discussions in Grand Committee. I have considerable sympathy with the intention behind the amendments and I assure the noble Lord of the Government's wholehearted support for the broad principles that have prompted them.
I shall set out how I believe the Bill already provides what is needed in primary legislation in this area and give the noble Lord some assurance how we intend to ensure that adoption agencies and courts follow those principles in their practice.
The intention behind Amendment No. 1 is to ensure that the voice of the child is properly heard. The Government strongly believe that the child's wishes and feelings should be actively sought and fully taken into account at all stages of the adoption process. That is a key value underpinning our national adoption standards, which will themselves be subject to Section 7 guidance—although I recognise that I need to come back to the point that the noble Lord raised about that guidance. Those standards specify that,
- "every child should have his wishes and feelings listened to, recorded and taken into account. Where they are not acted on, the reasons for doing so will be explained to the child and properly recorded".
The Bill underpins that philosophy. Under Clause 1(4)(a), courts and adoption agencies will be under a positive obligation to ascertain the child's wishes and feelings about all decisions relating to adoption and to take them into account, considering the child's age and understanding. They will need to do that by direct consultation with the child if the child is old enough. The assumption must be that even relatively young
children will have a view that must be taken into account. Agencies will be expected to ascertain that directly.I believe that the amendment is also aimed at ensuring that the child's words, as well as his/her wishes and feelings, should be communicated to the agency and the courts. Again, I have considerable sympathy, but it is more appropriate to leave the precise form of how the child's wishes and feelings are communicated to individual agencies and courts. We need to allow some flexibility in practice so that skilled professionals, whether they be social workers or officers of the courts service, can take the approach that they think best in communicating the views of children.
Our intention is that the precise procedure will be set out for adoption agencies in regulations and guidance and for the courts in court rules and guidance. The new regulations and guidance that we will make to accompany the implementation of the Bill will place explicit obligations on adoption agencies to consult the child, to record their views, to ensure that their views are considered in the decision-making process—for example by adoption panels—and, where they are not acted on, to record the reasons why not.
The detail will be subject to consultation but, for example, before any match between a child and a set of prospective adopters is considered by an agency adoption panel and before any decision is made, we expect the views of the child on the suggested match to be sought and taken into account, in the light of the child's age and understanding. Our current draft practice guidance to adoption agencies to support implementation of the national standards already makes that point.
We would expect an adoption agency social worker to consult directly with a child of sufficient age and understanding and to communicate clearly the child's views to the agency adoption panel during the decision-making process. In doing so, it may be helpful for the worker to report directly what the child has said, but we need to leave that to professional judgment in each case.
Court rules will provide in certain circumstances that a children's guardian must be appointed to represent the child. We shall come to the detail of that on Amendment No. 4. Our intention is that a guardian will be appointed in placement order cases and in adoption order cases where the order is contested, though the courts will have the discretion to appoint a children's guardian in other cases when it is considered appropriate. The duties of the children's guardian will include ascertaining the child's views through direct contact and reporting them to the court.
Even where there is no guardian, the child's views will need to be conveyed to the court through the report to the court that every adoption agency must produce under Clause 43 and, potentially, through any general CAFCASS officer report that the court may commission under the powers in Clause 100. Again, the purpose of a report will be to communicate the
child's view clearly to the court. Again, I think it best not to specify a precise format on the face of the Bill. It is also good practice among many members of the judiciary to consult the child in a sensitive and informal manner so that the judge can hear from them directly in their own words when they are of a sufficient age and understanding. I very much want to encourage that, but I do not think it would be wise to provide rigidly that that must happen. Even with the best intention, the court setting and the legal process can be intimidating and bewildering for children. Some cases may be very difficult for the child, particularly those that are contested by the parents or in which the child has been subject to past abuse and neglect. In such cases, it might be more sensitive and less distressing for the child not to have to attend court, even if it is not in open court, or to experience the legal process directly, but for their views to be taken by a professional CAFCASS officer or social worker, trained and skilled to work with children in precisely these difficult circumstances, and for those views then to be relayed to the courts.Whatever precise form the process takes, Clause 1(4)(a) will oblige the courts to consider the child's views in coming to any decision. It is envisaged that guidance to the courts concerning the new Act will cover the need to explain how the child's views were taken into account in coming to the final decision.
Amendment No. 2 has two objectives. First, it would allow the court, when making an adoption order, to make a binding direction as to the financial support that the parents are to provide to the adopted child. I have no doubt about the importance of ensuring the proper commitment by the parents. However, as was discussed in Grand Committee, I think that the best means of establishing that is through the assessment process, which probes deeply into the applicants' motivation for adopting and their commitment to meeting the needs of children. It is a testing and intensive process. In the years that have led up to the publication of this Bill, many have argued that sometimes it is too intrusive. Last week we published our consultation document on providing our fundamental review of the assessment process. That document sets out many of the factors that we think should play a role in the process of determining the adopters' suitability to adopt. The court will have the benefit of the adoption agency's views before it, drawn from the assessment, when it considers whether to make the order.
Once the order has been made, the approach that has always been taken in this country on adoption is that the adopters become in law the child's parents, with the same rights and obligations as any other parents in respect of their child. I would be uncomfortable with changing this by providing that the court can by order impose certain financial obligations at the point of adoption. If the parties have gone through the assessment process and demonstrated their commitment, I think that we should not—as we have never done—intervene in their new family life.
I well understand that we have to ensure that support services are there to help the new adoptive family when they need it; that is the intention behind Clauses 3 and 4, as we debated at length in Committee. New adoptive families and adopted children will have a right to request an assessment of adoption support, and local authorities will have a new clear duty to provide a wide range of support services which will include financial support.
I come to the second objective of Amendment No. 2—that the court should make recommendations as to the services and monitoring that should be in place to support the adoption. I think that this point also highlights the crucial role that support services should play in supporting adoptions and helping them to succeed and to last. This is certainly something that should be covered in the adoption agency's report to the court, as is currently the case with adoption allowances. In adoption support, however, we want a situation in which a package of support services is put in place earlier than the final adoption order—at the time that a child is placed with the prospective adopters—and regularly reviewed and monitored from then on. That is how we see the adoption support provisions in Clauses 3 and 4 operating, with the addition that the adoptive family and child will be free at any time after the adoption to request a new assessment of their needs.
Therefore, rather than being something that the court recommends, we see the support as something that the adoption agency or local authority should be ensuring is put in place before the parties reach the final adoption order hearing, in consultation with the adoptive family and the child. We are therefore talking about responsive support services, both at that point and subsequently, accessed at the initiative and request of the adoptive family to support them, rather than something intrusive imposed by agencies, authorities or the courts.
Amendment No. 3 also returns to an issue we discussed at some length in Grand Committee—the Secretary of State's power to issue guidance, and the Lord Chancellor's ability to make court rules. Dealing with the most straightforward point first, I reassure the noble Lord, Lord Campbell of Alloway, that Clause 137 provides that the Lord Chancellor may make court rules dealing with all matters of procedure connected with this legislation. We are confident that this wide-ranging power will allow us to make provision as to the matters that concern the noble Lord—such as how the voice of the child is to be heard in court proceedings, including issues about the representation of children, the appointment of CAFCASS officers under Clause 100 and party status. I assure noble Lords that we shall of course be consulting on the detail of this provision before full implementation of the legislation and that that will shape the final rules accordingly.
I fear that, as far as the noble Lord, Lord Campbell, is concerned, we did not satisfactorily resolve the issue of the Secretary of State's power to issue guidance. I have taken advice, and I am assured that Section 7(1) of the Local Authority Social Services Act 1970
provides that local authorities must act under the general guidance of the Secretary of State in exercising their social service functions, including the exercise of any discretion. Thanks to an amendment already made to paragraph 14 of Schedule 3 of the Bill—
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