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Lord Campbell of Alloway: My Lords, I have not been asked to move Amendment No. 2.
The Deputy Speaker: My Lords, I did call it.
Lord Campbell of Alloway: Well, my Lords, I did not hear it.
The Deputy Speaker: My Lords, I thought that my voice was quite clear and loud. However, in the circumstances—if the noble Lord did not hear it—I shall repeat it. Amendment No. 2.
Lord Campbell of Alloway had given notice of his intention to move Amendment No. 2:
- Page 2, line 24, at end insert—
The noble Lord said: My Lords, I merely say that, in view of the Division, I defer to the sense of the House and beg leave to withdraw the amendment.
The Deputy Speaker: The amendment is not moved.
[Amendments Nos. 2 and 3 not moved.]
Earl Howe moved Amendment No. 4:
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendment No. 155.
My noble friend ably focused our minds on the issue of the voice of the child during the adoption process. Like him, I believe that to be extremely important. I am dissatisfied by the extent to which the Bill is capable of ensuring that, during the adoption process, the views of the child are given the fullest possible weight.
Adoption is the most dramatic interference with the right to family life that there is. It is also irrevocable. As such, it is the most serious order that can be made in respect of any child and their birth family. In many cases, adoption involves termination of direct contact between the child and his or her birth family. In all cases, it severs all legal rights and links with that family.
Clause 1(4)(a) is of course welcome in that it provides that the court or adoption agency must have regard to,
A mechanism of that kind would enable us to be quite clear that we were meeting the requirements of the UN Convention on the Rights of the Child. Article 12 provides that:
The Explanatory Notes to the Bill indicate that the rules of procedure will provide that the child will automatically be a party to proceedings in placement order cases and will be able to apply to the court for leave to be made a party to adoption proceedings.
I believe that we would all feel far easier about the whole issue if consultation took place on it at the earliest possible date. It would be helpful to have a better idea, if the Minister can give it, about the detail of the rules and the timetable for consultation. Ideally, I should like to have been able to consider the draft rules during the passage of the Bill. That is the main point of my Amendment No. 155, which is intended primarily as a probe.
Amendment No. 4 proposes that placement proceedings, which will be closely linked to care and adoption proceedings, should be specified proceedings under Section 41 of the Children Act 1989. In specified proceedings, unless satisfied that it is not necessary to do so, the court appoints an officer of CAFCASS for the child concerned in order to safeguard his or her interests. That means that the child's wishes and feelings would be reported to the court independently
In my view, that process would discharge the court's duties under Clause 1 in the best possible way. It would ensure a thorough investigation of the background and circumstances of the adoption application. Even when there is consent or when, for example, it is a step-parent adoption, such an investigation may well be required. It would also act as an independent check of social work practice. If, in the child's view, there were a problem with the proposed adoption, then the children's guardian would become aware of it and could alert the court appropriately. In that way, every child would have an independent voice and, in judging the weight to be given to the views expressed, due regard would be paid to the child's maturity rather than simply to his or her chronological age.
I hope that the Minister will be able to respond in a positive way to my amendments, which I believe are in keeping with much of what he has already said today. I beg to move.
Baroness Thomas of Walliswood: My Lords, the amendment moved by the noble Earl seems to me to provide a better way of obtaining the objective that he seeks to achieve than the method suggested in the brief that we received very recently from the noble Baroness, Lady Scotland.
In that brief it is pointed out that care proceedings—of course, children who are placed are in the care of the local authority—are specified proceedings under Section 41. It is pointed out, too, that the Government propose that placement proceedings should also be made specified proceedings by amending Section 41 of the Children Act or by issuing regulations under that section. However, that will be relevant only to placement proceedings.
Personally, I believe that what the noble Earl, Lord Howe, proposes—that is, setting out the matter on the face of this Bill—is a better way to proceed because it is more transparent and more obvious. However, it seems to me that he has also widened the issue because he has introduced adoption orders as specified proceedings. I am in some doubt as to whether the Lord Chancellor's brief, which talks about placement proceedings, includes adoption orders.
However, it seems to me that, until an adoption is made, the child is still in the care of the local authority. Since adoption orders can be contested under certain circumstances, notwithstanding that there has been a placement previous to that—for example, if the birth parent withdraws the consent, the adoption can be contested—it seems to me that, in this case as well, the wording of the noble Earl's amendment is broader and, therefore, more desirable than that expressed in the Lord Chancellor's brief. I hope that I have understood these rather subtle points correctly. I rely on the Minister and the noble Earl, Lord Howe, to tell me whether I have made a mistake.
Lord Hunt of Kings Heath: My Lords, the effect of Amendment No. 4 would be that in every placement order and adoption order case the court would be under a duty to appoint a CAFCASS children's guardian to represent and act on behalf of the child unless the court was satisfied that the child's welfare did not require it.
As I said in Grand Committee, the Government will consult on the issue of the representation of children in proceedings under this Bill in drawing up the court rules that will accompany implementation. But perhaps I may give an outline of how we currently envisage addressing these issues.
With regard to placement orders, we agree with the intention behind the amendment. If a placement order is made, a child is removed from his or her natural family. The noble Earl is right. In most cases, that will be against the wishes of the parents. It also represents an interference with a family's right to a private family life under Article 8 of the European Convention on Human Rights, comparable to placing a child in care under a care order.
Care proceedings are specified proceedings under Section 41 of the Children Act. That means that a CAFCASS officer is appointed to safeguard the child's interests and a solicitor is appointed to represent the child.
Our current intention is to provide for placement proceedings to be made specified proceedings within the meaning of Section 41 of the Children Act. By virtue of Section 41(6)(i), we can add to the list of specified proceedings by amending court rules.
We plan to consult on the rules generally. However, we do not currently envisage that adoption proceedings will be specified proceedings, subject of course to consultation. The new provisions relating to consent and placement should mean that the main issues will already have been dealt with before the making of a final adoption order.
We need to be very clear that one of the main aims of the placement provisions in Chapter 3 of the Bill is to reduce the number of contested final adoption order hearings. Where consent to placement has been given or not withdrawn, or where a placement has been made, the final adoption order hearing will be contested only if the parents seek and gain the leave of the court on the grounds that there has been a change in circumstances.
In addition, we need to remember that many adoptions are made in non-contested cases where parental consent has been given and all parties are agreed on the course of action. We believe that in such cases it would be disproportionate and unnecessary for a CAFCASS officer and a separate solicitor to be appointed automatically to act for the child at the final adoption order stage. It is important to remember that that does not mean that the court will not have a chance to consider the views and interests of the child. The child will of course be at the centre of the case and the court will be bound by its obligations.
In agency cases, the court will have before it a detailed report from the agency on the placement and, in non-agency cases, such as step-parent adoptions, it will have a report from the relevant local authority into the circumstances of the case. As I shall describe, we also envisage that the court will be able to appoint a CAFCASS officer to provide the court with a general welfare report on the case and on the interest of the child.
However, there should be discretion. It should be open to the court to decide in the light of that whether or not to appoint a CAFCASS officer. That must be seen in the context of the work undertaken in the late 1990s and of the report of the PIU entitled, Prime Minister's Review: Adoption. One of the key features of that report attempted to deal with delays in the system and to ensure, within a clear framework of responsibility and tough assessment, that such adoptions take place as speedily as possible. That is where we believe we have the balance right; that is, by placing the critical stage of the placement order where there will be provision for representation.
There is a strong case for the court having flexibility in uncontested cases which would take place at the adoption order stage. Representation of children and the duties of CAFCASS officers in proceedings will be considered in the wider work on rules of court following passage of the Bill when we consult key stakeholders and organisations to ensure that new adoption rules provision is made for the child's wishes and feelings to be considered within adoption. An initial scoping study undertaken by the Lord Chancellor's Department indicated that flexibility is key in that area. Not all children want to be parties in court proceedings. That does not mean that we cannot ensure that their voices are heard.
We shall consider the points raised by the noble Earl when we consult on detailed proposals in 2003 in preparation for the implementation of the Bill in 2004. I would argue for the flexibility provided by secondary legislation.
I turn to Amendment No. 155, and to our earlier discussion on this point. We believe that it is important that children are kept informed of progress in relation to court proceedings in a way appropriate to their age and understanding. However, Amendment No. 155 would have the effect that children should receive formal notification from the court of a placement or adoption order hearing concerning them.
We do not agree that the child must be notified directly of the proceedings. That would not be practical in all cases. Formal notification in a document sent by the court and addressed to the child could also be distressing and confusing. We need to remember how intimidating the court process can be, with the best intentions in the world. Rather, we would expect, under Clause 1(4)(a), that the adoption agency and the court must have regard to the child's ascertainable wishes and feelings, in the light of his age and understanding. The child's wishes and feelings should be actively sought and fully taken into account
As we discussed in the debate on a previous amendment, in a good number of cases it may be appropriate for the child to be involved, to visit the court and to see the judge. However, we need to be sensitive to the individual needs of children. We must avoid any sense of burdening them with a decision.
I understand the sentiment behind the noble Earl's amendment that children should always be informed; that their views should be sought and considered and that they should be involved as far as is appropriate for the child. I hope that he will understand why I cannot support the amendment.
"( ) The court, on or after making an adoption order, may give directions (subject to review) as to financial provision to be made for the child by the adopter, or adopters, which shall be enforceable; and may make recommendations as to provision for monitoring and other services as appropriate for the welfare of the child."
Page 2, line 39, at end insert—
"( ) Section 41 of the Children Act 1989 (c. 41) applies in relation to proceedings for placement for adoption and adoption orders referred to in chapter 3 as if they were specified proceedings for the purposes of that section."
"the child's ascertainable wishes and feelings".
However, I am left with the concern that that is really not enough. There should be a clear mechanism in the Bill to ensure that in all cases the child's view is fully and properly represented to the court independently of the adoption agency, the applicants and the birth parents.
"State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".
4.15 p.m.
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