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Lord Hunt of Kings Heath: My Lords, I am trying to say that none of the suggestions put forward by the noble Earl is without merit, although there may be some problems with the specifics of what he suggests. When one comes to the heart of the matter, the substantive issue is that we believe it is better to allow ourselves flexibility in the legislation so that we can keep the issue under close review. If it seems that another area should come under the independent review, I can ensure that that will be done in a fairly straightforward way through regulations.

Earl Howe: My Lords, I understand that, and I believe that it is, indeed, a sensible way forward. I appreciate that there is flexibility in the clause, and that is welcome. However, I do not quite understand what would govern a decision by Ministers to include a particular type of determination within the scope of the independent review mechanism. But perhaps that remains to be seen.

As I said, the debate has been enlightening. I shall leave it to the noble Baroness to decide what she chooses to do with her own amendment, which, so far as I can see, is separate and discrete from my own. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker had given notice of her intention to move Amendment No. 19:



"( ) A decision not to provide adoption support services which have been assessed as being needed is a qualifying determination."

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The noble Baroness said: My Lords, following the excellent precedent set by the noble Lord, Lord Campbell of Alloway, I rise simply to say that I shall not move my amendment. In doing so, I wish to thank the Minister very much for the assurances that he has given us about the proposed review. I take the opportunity to say to him that that will be subject to intense scrutiny when it returns to this House. Any suggestion that there is insufficient evidence of the effectiveness of any of the regulations because of devolved decision making to local authorities will bring him short shrift from this side of the House. If his performance management framework does not come up with the goods he will find himself back with a fight on his hands.

Lord Hunt of Kings Heath: My Lords, in the light of those remarks, does the noble Baroness think that she should revisit her party's new statement on relationships between central and local government?

Baroness Barker: No, my Lords, I do not. If the Minister reads what is a thorough document about how to make such systems work, he may find it educational. I do not want in any way to detract from the issue. We all recognise that the points raised by the noble Earl, Lord Howe, and by me are of extreme importance. We shall take what the Government say in guidance and regulations but in two or three years' time we shall be back carefully to consider the matter. I do not intend to move the amendment.

[Amendment No. 19 not moved.]

Clause 18 [Placement for adoption by agencies]:

Lord Clement-Jones moved Amendment No. 20:


    Page 13, line 17, leave out "section 19 or"

The noble Lord said: My Lords, in Committee a number of concerns were articulated on the provisions in the Bill regarding placement orders and placement by consent, which is an extremely important part of the Bill. In particular, such concerns related to potential conflict with the Children Act and the unnecessary complexity regarding the implications of parents giving consent to placement. First, in circumstances where a parent consents to adoption and subsequently changes his or her mind, he or she cannot remove the child even if the child has not been placed for adoption. It may be reasonable for there to be some delay in cases where the child is placed with adopters, but it is difficult to see the reason for delay where the child is not even placed.

Secondly, in situations where a relinquishing mother consents to the adoption placement and obstructs the local authority from ascertaining the views of the father without parental rights and the views of the wider family, the adoption agency faces the dilemma of whether to place with consent or insist that the father and possibly the wider family are consulted. Thirdly, a birth parent can give consent to placement even before the child is six weeks old and can then be committing a criminal offence if they changed their minds and tried to take their child home. Fourthly, where babies are placed for adoption under

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six weeks, their status in the placement is unclear once they reach six weeks of age. At that point the mother can give valid consent to placement but, if she does not do so, if she cannot be found, if the CAFCASS officer is not available to see her on day 42 or is not satisfied that she can give valid consent, what is the status of the placement? Is there not a danger that the child will have to be moved to a temporary foster placement?

In Grand Committee the noble Baroness, Lady Andrews, gave a helpful outline of the safeguards which the Government believe address such concerns. However, we do not believe that those safeguards are sufficient, for the following reasons. First, the noble Baroness stated (at col. CWH 136 of the Official Report of 2nd July 2002) that there will be regulations on counselling parents. The agency will be required to counsel parents and to spell out to them the full implications of what they are agreeing to. The noble Baroness stated:


    "In that way, everyone will know what they have signed up to".—[Official Report, 2/7/02; col. CWH 136.]

How will that work in practice, with parents with mental health problems or learning difficulties, or even with those who are inevitably distressed at the position in which they find themselves?

The second safeguard mentioned by the noble Baroness was that the consent would be witnessed by a CAFCASS officer. Similar concerns apply, but the task for the CAFCASS officer will be even harder as he or she will have only a limited opportunity to get to know the parents whose consent is sought and to assess their level of understanding. Either they will rely too much on the information provided by the agency, thus compromising their independence, or they will have to undertake a detailed assessment of the parent's capacity, thus adding to delay. As there will be no current court proceedings, they will not have the option, as they would under the current procedures, of referring the case back to the judge for further directions.

The third safeguard articulated by the noble Baroness was that consent would be in the prescribed form,


    "which will spell out clearly what is being agreed to".

A number of agencies attempted to draft such a form. The complexity that they arrived at shows the problems attendant on that approach. Certainly, the form would be sufficiently complex for parents to be deterred from being able to sign it.

The fourth safeguard mentioned by the noble Baroness is that,


    "adoption panels, with all their expertise and independence ... [will have] played a leading role in ensuring that the proper work had been done before any decision was taken that adoption was in a child's best interest".—[Official Report, 2/7/02; col. CWH 137.]

While that provides potential safeguards, there is no guarantee that all panels will operate to the same high standards. Their independence is only partial. Present regulations require some independent members, but they are not in the majority. In any case, panels make only recommendations which can be overruled by the agency decision maker. There is a risk that local

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authorities, anxious to meet the Government's target of a 40 per cent rise in adoptions and to avoid delay, may reject what are seen as unnecessary obstacles put in their way by the panel. Although it may be thought that adoptions where a parent is apparently requesting and consenting to adoption are straightforward, practitioners can demonstrate that that is often far from the case.

The fifth and last safeguard mentioned by the noble Baroness is access to the court for a placement order, or using the court's inherent jurisdiction. As the Bill is currently drafted, the placement order route is available only if there is evidence that the child would be likely to suffer harm under Section 31 of the Children Act. There is a danger that either the interpretation of the necessary threshold for significant harm would be watered down to bring more children within the remit of a placement order, or that the court will have to fall back on the inherent jurisdiction, which is exercisable only in the High Court.

When the Children Act 1989 was introduced, a key principle was that the inherent jurisdiction was to be used only in the most exceptional circumstances; basically, those that were not anticipated when the statute was passed. It must be wrong to introduce new statutory provisions on the basis that they contain a gap which can be filled only by recourse to the inherent jurisdiction.

In addition to those specific points, we on these Benches are concerned that the Bill as drafted will not achieve the Government's goal of reducing the uncertainty for adopters in consent cases. First, the adopters cannot lodge an adoption application until the child has been with them for 10 weeks. At any point up to then the parent may withdraw consent. If she does so and requests the return of the child, the continuation of the placement is entirely dependent on the willingness or otherwise of the agency to make an application for a placement order. The adopters are powerless to do anything. Secondly, even after the application has been lodged, it is open to the parent to seek the court's leave to oppose the order. It seems likely that the court would be more willing to grant leave in cases where there has been no prior court hearing and where there might be issues about the parent's proper understanding of the consent. That uncertainty for the adopters, although not completely unavoidable, is more likely to be avoided if a placement order had already been made confirming the consent.

The aim of Amendments Nos. 20, 22, 23, 25 and 26 is that there should be a placement order in every case, including where the placement is by consent. The advantages of that would be, first, that the significance of the decision being made by the parent in consenting to placement would be underlined to that. That is particularly important in view of the restrictions placed by the Bill on the parent's ability to withdraw their consent and contest the making of the adoption order. Secondly, the complicated provisions contained in Clauses 30, 32 and 34 would not be needed; it would

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be enough to provide that the making of a placement order operated to restrict the parent's right to remove the child without the leave of the court. Thirdly, a child and prospective adopters would have greater protection against disruption of the placement. Fourthly, any outstanding issues or queries concerning, for instance, the involvement of fathers without parental responsibility, or members of the wider family, could be resolved by the court prior to the child's placement. Such a course is advocated by the President of the Family Division in Re H and Re G in 2001.

Although having a placement order in every case may appear to create extra delay and expense—as alleged in Committee—we do not believe that will occur in practice. If the consent is genuine, the court hearing can be brief and should be fitted in without unnecessary delay. Court timetables will always be under pressure but it cannot be proper to introduce legislation where rights are curtailed by inadequate Court Service provision. In terms of court resources, a small amount of court time at an early stage must be preferable to lengthy hearings at a later stage that have to address issues not already explored.

If the consent is not genuine or is confined to the mother only but the father or members of the wider family wish to care for the child, it is appropriate that should be ascertained and adjudicated upon by the court before the placement is made—as envisaged by Clause 1. Otherwise, delays may occur at the adoption hearing, when the father or the wider family may be making applications for contact or residence orders.

Issues about the extended family or father without parental responsibility being able to care for the child need to be able to be raised, to ensure compatibility with the European Convention on Human Rights. While the agency will, if it follows good practice, consider those issues or should have done so, a court hearing before authorisation is given to place the child will provide the opportunity for the issues to be raised in a judicial forum. If they are not raised until the final adoption hearing, not only will that cause delay but it will almost certainly be damaging for the child and distressing for the adopters.

There is a particular issue with regard to fathers without parental responsibility. Clause 52(9) and (10) provide that a father who may never have been aware of the adoption plans will be deemed to have consented in the same way as the mother if he acquires parental responsibility after the placement has been made. That must be incompatible with Articles 6 and 8 and is therefore likely to be challenged under the Human Rights Act 1998.

Amendments Nos. 31, 35, 39, 40 and 42 are also based on the premise that there should be a placement order in every case—even where consent to placement is forthcoming. The amendments aim at ensuring that once a placement order is made following judicial scrutiny, the placement should not be disrupted without the leave of the court or the consent of the agency. The advantage for the adopters is that they will know that if a child is placed with them under an

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order, even if it was made by consent, the placement cannot be disrupted by a parent who has changed his or her mind without the court being satisfied that there is a sufficient change in circumstances to merit sanctioning a move.

The terms of the placement process are not satisfactory. Where a child is placed with adopters following consent, of course there needs to be a mechanism that enables the agency to have a time window, to make satisfactory arrangements for the child, and—where the agency decides that it is not in the child's interest to return to the parents—to make a court application. In the latter circumstances, it is an essential safeguard for the right of parents and the child to family life and consistent with the parallel provisions in the Children Act 1989 that the onus should be on the local authority to satisfy the court that there are grounds for refusing to return the child.

The noble Lord, Lord Hunt, stated in his letter to me of 5th August that,


    "where a child has been voluntarily accommodated and the local authority then decided that the child should be adopted and applied for a placement order, as currently drafted, subsection (2) of Clause 29"—

now Clause 30—


    "would prevent the parents or anyone else from removing the child while the application was pending unless they had the leave of the court".

Under the Children Act 1989, where a child is accommodated the local authority must make an agreement with the parent about the plans for the child. If they are unable to reach agreement and the local authority is satisfied that the child would suffer significant harm, it would apply for a care order. To prevent the child's removal, the local authority would need to apply for an emergency protection order or interim care order. The parent would have the opportunity to challenge in court the local authority's plans at the earliest possible stage—and if the child were not returned, to seek a contact order pending the final hearing.

Contrast the terms of the Bill. If the provisions of the Bill remain as drafted, the parents' access to court may well be delayed and their chances of ultimately recovering the child would be reduced. That falls short of the Government's stated intention of ensuring fairness for birth parents. The balance in the Bill as drafted is wrong and I hope that the Government will listen and make appropriate changes. I beg to move.

7 p.m.

Earl Howe: My Lords, the noble Lord has succinctly described his concerns, which I share. I spoke to similar amendments in Grand Committee.

We return to that well-used but important word "balance". It is difficult to get the correct balance of rights and obligations in a Bill of this kind but we should make certain that we do our best.

I remain distinctly uncomfortable that parents who have consented to placement but never to adoption will be unable to oppose the making of a final adoption order unless the court gives them leave to do so. While

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we all accept that the welfare of the child is paramount, that cannot be an excuse for overriding the rights of parents. We need constantly to remind ourselves of the finality and irrevocability of an adoption order.

The beauty of the amendments is that they simplify the legal framework for placement orders—which, as the Bill is worded, is exceedingly complicated. On a more substantive level, any aspect of the Bill that puts people off giving their formal consent to a placement is a bad thing. This part of the Bill may be a case in point. I agree with the noble Lord that while there are safeguards, they are not as robust as they should be. After all, formal consent to placement is an administrative process. It is not judicially supervised. A court may never have to consider whether the parent's consent to adoption is forthcoming.

I am fully supportive of the Bill's intent of ensuring that parental consent is dealt with as far as possible prior to placement, to give the child and the adopters certainty from an early date. But when it comes to the parents' rights then, as the noble Lord concluded, the balance seems to be wrong.


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