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Lord Campbell of Alloway: My Lords, I cannot find the section to which the Minister referred.

Lord Hunt of Kings Heath: My Lords, I am referring to Clause 137, in relation to court rules.

Lord Campbell of Alloway: My Lords, I have that, but what was the next reference?

3.45 p.m.

Lord Hunt of Kings Heath: My Lords, it was paragraph 14 of Schedule 3.

As a result of that amendment already made to the Bill, local authority adoption functions are included in the list of social services functions in Schedule 1 of the 1970 Act. The effect is that the Secretary of State may issue such guidance to local authorities in respect of their functions as adoption agencies and their other adoption functions under the Bill.

I am assured that the effect of this guidance is as set out in my earlier statements on this matter. Irrespective of the nature of the function, if it is a social services function under the 1970 Act, then local authorities should follow the path set out in the guidance, departing from it only where they have a good reason to do so. However, they do not have the freedom to take a substantially different course. That is the position established by the case of ex parte Rixon, to which the noble Lord, Lord Campbell, referred. Although that case concerned the local authorities' conduct in following guidance concerning a target duty, it is my advice that the principle established by the judgment applies to guidance covering all of local authorities' social services functions under the 1970 Act, and that the judgment stands and has not been challenged.

My practical experience is that Section 7 guidance is viewed in this light by local authorities and is a highly effective means of ensuring that guidance is complied with. It is significant that, in the past four or five years, a number of noble Lords—when wishing the Government to determine that local authority social services should carry out a particular duty or responsibility more effectively—have consistently asked me to issue Section 7 guidance. I am glad to say that, on one or two occasions, we were able to agree to such a request. I believe that that demonstrates the effectiveness of such guidance.

I have a great deal of sympathy with all the points that the noble Lord, Lord Campbell, seeks to raise. However, I believe that these points are covered by the Bill's arrangements and by our ability through consultation and regulation to meet the points he has raised.

14 Oct 2002 : Column 606

Lord Skelmersdale: My Lords, before the Minister sits down, both today and in Grand Committee, he placed great reliance on adoption agencies and local authority social services departments taking account of the views of the child. He has, as he will recall, mentioned that over and over and over again; indeed, today he has said that there will be new guidance partially to that effect. That is all very well, and the views of the child will be taken into account in respect of the understanding and mental ability of the child of the relevant age. However, where the views of the child are not acceptable or partially unacceptable to anyone including the courts, will the reasons for that be transferred back to the child? I think that that is vitally important.

Lord Hunt of Kings Heath: My Lords, I had hoped that I made it clear in my response to the noble Lord, Lord Northbourne, that, when a child's wishes ultimately have not been deferred to, good practice will always entail ensuring communication of the reasons why. Although we shall take the issue forward in our consultation on the Bill's application in practice, I think that we need to follow that principle.

Lord Skelmersdale: My Lords, does that mean that the Minister and his department are considering including this aspect also in the guidance?

Baroness Masham of Ilton: My Lords, before the Minister finishes, I should like to ask him one question. If the child and an older child are placed with an adoptive family but the child is not happy with the placement, has he or she any right of appeal?

Lord Hunt of Kings Heath: My Lords, clearly, if a child has been placed as a result of an order, there will have to be careful monitoring of how the child interacts with the family concerned. If a placement did not work out and if an adoption order was being contemplated, I should expect that to be a matter for serious consideration by the court.

Lord Skelmersdale: My Lords, the noble Lord has not answered my question.

Lord Hunt of Kings Heath: My Lords, I thought that I had answered it. I believe that I said that as a general principle the child should be communicated with in relation to a decision, particularly if the child's views had not been deferred to. I believe that I said that I would consider that point in the consultation that we are undertaking in relation to future guidance and regulations.

Lord Campbell of Alloway: My Lords, I should like to thank all noble Lords who have spoken. I listened with great care to what the Minister said. Sympathy is all very well but it does not actually cover the practical necessities of this situation. I say at once that the noble Lord has persuaded me that it is in a sense otiose to move Amendment No. 3. He gave assurances about consultation and referred to two passages in the Bill

14 Oct 2002 : Column 607

relating to the powers of the Lord Chancellor and to the powers of the Secretary of State to issue guidance. I, for my part, am not wholly satisfied by any means with the status of the guidance. I am anxious not to turn this occasion into a technical legal argument in a minefield but I do not agree with the Government on this matter.

As regards Amendments Nos. 1 and 2, with respect I remain wholly unconvinced by what the Minister said. I refer to a sort of departmental exercise defending the propriety of the Bill as covering everything that needs to be covered. However, it does not. The fundamental provisions of the Bill are the bedrock provisions of Clause 1 entitled:

"Considerations applying to the exercise of powers".

Nothing that the Minister has said has convinced me that there is not an overwhelming case, supported by all noble Lords who spoke on Amendment No. 1, for it to be put in due course to the House when I have dealt with Amendment No. 2.

I do not wish to take a lot of time. Amendment No. 2 contains fundamental bedrock powers. It is not concerned with detail. The speech of the noble Lord on Amendments Nos. 1 and 2 was concerned with whether the detail of the Bill was sufficient to carry the point of principle, but that is a cart and horse argument. We are concerned in Amendment No. 1 with bedrock provisions of principle and in Amendment No. 2 with whether adoption agencies can do the job. Up to a point they still can. As I envisage it, they would do their job and report to the court. However the adoption agencies have no means of enforcement. As a matter of principle, in the interests of these children and wholly consistent with the concepts of Judge Hodson, there should be an enforceable supervisory power.

I do not wish to take up more time but I ought to deal with the two points that have been made. The noble Earl, Lord Howe, was right to assume that the rules of court would be dealt with by the Lord Chancellor. That is totally correct. The noble Baroness, Lady Thomas, was totally right in her references to the European Convention on Human Rights to draw attention to what could constitute a muddle in the Lord Chancellor's brief. However, any possible muddle is cured in the following extract which I take word for word from the Government's brief. I refer to the intention of the Government to revise arrangements for ensuring that children can participate in decision making about their future. That is apparently accepted as the intention of the Government. In those circumstances I believe that it is right to test the opinion of the House.

3.56 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 109.

14 Oct 2002 : Column 608

Division No. 1

CONTENTS
Addington, L.
Astor of Hever, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Brooke of Sutton Mandeville, L.
Campbell of Alloway, L. [Teller]
Cavendish of Furness, L.
Chalfont, L.
Clement-Jones, L.
Cobbold, L.
Cope of Berkeley, L.
Dholakia, L.
Elles, B.
Elton, L.
Emerton, B.
Fookes, B.
Goodhart, L.
Greaves, L.
Hannay of Chiswick, L.
Hayhoe, L.
Howe, E.
Howe of Idlicote, B.
Jenkin of Roding, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Monro of Langholm, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Noakes, B.
Northesk, E.
Northover, B.
O'Cathain, B.
O'Neill of Bengarve, B.
Phillips of Sudbury, L.
Redesdale, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Sharp of Guildford, B.
Simon of Glaisdale, L.
Skelmersdale, L. [Teller]
Soulsby of Swaffham Prior, L.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Trefgarne, L.
Trumpington, B.
Walmsley, B.
Wigoder, L.
Williams of Crosby, B.
Williamson of Horton, L.

NOT-CONTENTS
Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Barnett, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Blease, L.
Borrie, L.
Brightman, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jeger, B.
Jordan, L.
King of West Bromwich, L.
Lea of Crondall, L.
Listowel, E.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mallalieu, B.
Mar, C.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Milner of Leeds, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Neill of Bladen, L.
Northbourne, L.
Orme, L.
Patel of Blackburn, L.
Paul, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Sainsbury of Turville, L.
Serota, B.
Sheldon, L.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Temple-Morris, L.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Weatherill, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)

Resolved in the negative, and amendment disagreed to accordingly.

14 Oct 2002 : Column 609

4.6 p.m.

The Deputy Speaker (Baroness Fookes): My Lords, Amendment No. 2 is not moved. Amendment No. 3 is not moved. Amendment No. 4—

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