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Baroness Howarth of Breckland: My Lords, I rise as a mere social worker in the face of cogent arguments from lawyers—particularly the noble Lord, Lord Clement-Jones. It is difficult to follow the arguments in detail, so I will make two simple points.

The separating out of parental consent and the rights of parents to reconsider has been argued by many agencies—particularly the Family Rights Group. I would separate that issue from the prospect of every family wanting to adopt having to go through a court appearance. Because of the Bill's complexity, those two aspects have become so intertwined that it is difficult for families to see how their rights are being protected.

I continue to take the view that if consent has been given, where there is a clear assessment and little likelihood of that consent being withdrawn, it would be detrimental to take the family through the court process—which is always stressful, however kindly intended, and adds time. All the courts are in difficulty. With respect to the noble Lord, there is a real issue about saying that one can legislate, then find time. There are delays in all children court processes at this time. This would simply be another delay. We are not likely to find a great deal more time by whatever procedures. I have looked at this aspect and talked to people. It is no use saying, "We will find time in the morning"; mornings are used for other issues in court. Therefore, it means extra time.

The argument that if one gets the matter right early one will not have to spend a great deal of time later is the argument for ensuring that time is available for the complicated cases. It is essential that those are heard thoroughly and properly.

We place huge emphasis on the judicial process. What is so magical about a judge hearing the issues and making a judgment as against a panel of people who make their judgment from a good professional basis? I still feel that a panel in these cases will have

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made in-depth assessments. I have even more confidence in panels after seeing the content of the review. As an aside, I believe that all those people who have complained significantly about the intrusiveness of adoptive processes will find that review extraordinarily interesting with regard to what we expect an assessment to look at and to go through.

In cases where there is a danger that consent will be withdrawn a court order should be obtained. However, I am still firmly of the belief that, where there are families and where the issues are straightforward, we should get those children adopted as rapidly as possible, as painlessly as possible and as supportively as possible.

Baroness Andrews: My Lords, I am grateful to all noble Lords who have spoken in the debate and who, just as in Committee, have shown such great concern in getting the process absolutely right in this new development in terms of adoption.

The amendments propose fundamental changes. We debated a similar set of amendments in Committee. We have listened very carefully. I could not write fast enough to take down all the points of the noble Lord, Lord Clement-Jones. I shall try to answer as many as I can, but I may have to resort to writing to the noble Lord about some of them.

I do not want to reiterate what I said in Committee. But I want to say that we are rather delighted that the concept of placement has the agreement of all parties. The significant change is that we have shifted the burden of the decision to the front end of the process—to the placement process. I believe that it is because we have built in so many assumptions about the placement process itself—the support, the dignity and the quiet rehearsal of the issues in that end of the process—that we will be able to resolve satisfactorily the kind of issues in the determination of consent that the noble Lord raised today.

Let us reflect on the present system. Essentially at the moment we have this cliff-hanging opportunity at the adoption hearing process. The fate of the child hangs in the balance as birth and adoptive parents face a high noon of argument, indecision, uncertainty and often contradiction. That is precisely what we want to improve on.

The two routes we have opted for are: first, placement with consent; and, secondly, placement by way of a placement order where parents do not consent. They are, we believe, proportionate and sensitive because they reflect the difference in the situations of those families. To that extent we believe that there is a big improvement for both sets of parents. It reduces the fait accompli for the birth parents who come to the adoption hearing not knowing what will happen and then finding that the child's placement has been decided on. Of course for the prospective adopters there is the possibility of the contested court hearing.

I want to stress—this was an issue raised a good deal in Committee—that a parent who has consented to the placement of a child can withdraw his consent at any

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stage up to the point where the application for adoption is made. Every parent can still contest the final hearing if he obtains the leave of the court and there has been a change of circumstances. So the placement by consent route is, by definition, intended to be entirely voluntary.

I turn to the points made by the noble Earl, Lord Howe. I believe that we have the balance right in the Bill. The protective mechanisms built in for the birth parents will be sufficient to make sure that their human and civil rights are properly safeguarded. As I deal with the amendments I hope that I shall be able to demonstrate that. We believe that we have constructed a fairer, more open and more certain process, both on behalf of the parents and of the child.

I turn to Amendments Nos. 20, 22, 23, 25 and 26. They seek to remove the placement by consent route that I have described and require a placement order to be made in every circumstance, no matter what the family condition is. The amendments also provide that, where the parents consent, a placement order could be made without the "significant harm" threshold in the Children Act being met.

The first issue raised by the noble Lord was that requiring a court order in every case means that the agencies would be able to seek the court's guidance in cases where they were having difficulty deciding how to consult and how to involve married fathers without parental responsibility. He also argued that the use of a placement order in every case would allow the provision covering removal from adoptive placement to be recast and, therefore, it is argued, simplified. He also disputed that there would be delay, of which we believe there is a high risk and which outweighs some of the benefits he describes. He also raised some specific questions about the nature of the support available to the families when they were considering whether or not to consent.

I shall deal with a few of those specific points first. As to the question of placements and the status of new babies, for example, after six weeks, the issue has been raised in detailed discussions. We have recently discussed this with the AS and with the Family Rights Group. We are giving it careful consideration. If we conclude that changes are needed to put the status of children beyond doubt, we will introduce the necessary minor amendments at Third Reading. Clearly, we do not want to leave any confusion or indecision. I hope that that helps the noble Lord with regard to the specific case of young babies.

The noble Lord also raised the question of whether or not there would be sufficient support to help the parents who chose consent where there were learning or health difficulties. We also know that in such complex cases there are often special needs issues which need to be addressed. We believe that agencies will be able to use their available skilled social workers, and, if they are in any doubt about a family, they can apply for the placement order. Therefore, that is always an option for them.

Perhaps I may now turn to the safeguards. The noble Lord carefully went through all the safeguards that I outlined in Committee. I reiterate that we believe

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that intimate and intense discussions are far better than a court appearance, which would be involved in a placement order, in the process of assisting parents to reach a proper decision—the right decision—about their child, for all the reasons which the noble Baroness, Lady Howarth of Breckland, spoke of so powerfully both in Committee and today.

The noble Lord was sceptical about CAFCASS officers. They are brought in at the next stage. I stress that they are fully independent. Their key task is to ensure that consent is given properly and that parents fully understand what they are consenting to. I can assure the noble Lord that the prescribed form will be consulted upon. Clearly if there are difficulties in creating such a form and making it accessible, we need to take proper advice. The consultation will see to that.

The ultimate safeguard is the indisputable right of the parents to withdraw consent and to have the child returned to them right up to the point at which the application for an adoption order has been made. We believe that these safeguards will meet the concerns expressed, that they are sufficient to ensure that parents understand the significance of what is involved, and that their interests are protected throughout the process.

However, let us consider the other issues about which genuine uncertainty may exist. There is nothing in the Bill at present that obliges the authority to go down the consent route, even if the parents are willing. If there is a potential case of "significant harm", the option of going for a placement order is available. So it is not only directed towards the parents; there is also a degree of flexibility available.

The noble Lord argued that court intervention would ensure that everyone was consulted. He expressed particular concern about the unmarried father and about instances where the agency might not know whether the unmarried father had given his consent, or whether he had even been consulted. It is an important area, especially given the existence of the Human Rights Act. We fully understand the concerns expressed. However, we are sure that the Bill's provisions are compliant with the ECHR. We are as concerned as noble Lords opposite to ensure that involving fathers should be at the heart of the Bill. Indeed, wherever possible, we have built that consideration into the legislation.

Clause 1(4)(f) places an obligation on the adoption agency to consider the views of the child's relatives and of others who have a significant relationship with him. We expect the expert adoption panels, to whom the noble Baroness, Lady Howarth, paid a powerful tribute, to play a fundamental role. Given the review to which I referred, we are confident that they will be able to do so. We have also given a clear commitment that regulations and guidance to the new adoption agencies will underpin those obligations to ensure that the views are properly and widely explored.

It was overlooked in Grand Committee, but Clause 109 means that more unmarried fathers will be able to acquire parental responsibility because they will be able to register jointly the birth of their children.

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Again, there is an obvious route into the courts. I hear what the noble Lord says about inherent jurisdiction, which is always an option, but I want to emphasis what I said in Grand Committee; namely, that we are more than willing to consult on whether specific provision should be made in court rules for an application to the court in these cases. It would mean that there would be a purpose-built solution for agencies to use and a direct route to court for difficult cases, rather than relying on simple, inherent jurisdiction.

Noble Lords should be aware that running through our approach is the whole question of proportionate and sensitive responses to different situations. We should bear in mind the fact that the reasons why children are placed voluntarily in accommodation means that they have often been relinquished, that they have no home to return to, and that, often, their parents have been inadequate for many years. Therefore, we need to act to assist them. We believe that a placement order process will actually introduce delays.

I listened to what the noble Lord said, but, if we meet our targets, we are talking potentially about another 600 children a year. At present, 430 children a year are placed voluntarily in care. We are saying to the families and to the children that we are imposing a court stage, which is not available at present. As reiterated during the summer through advice from the Lord Chancellor's Department, the judges' pre-list time is already occupied with other work. I cannot believe that these non-contested cases where all the families are in agreement will take any priority over urgent injunctions or pressing family proceedings. We should remember that a child's time-scales are not the same as those of an adult: weeks are endless, let alone months. We want to ensure that we cut down and remove any possibility of delay. That is why we are standing firm on this issue.

I turn to the second half of the story; namely, Amendments Nos. 31, 35, 39, 40 and 42, which concentrate on the provisions covering removal from adoption and are very closely linked. I listened to what the noble Lord said in that regard. Through a combination of Clauses 19 and 52, the Bill as currently drafted ensures that in placement with consent cases parents can change their minds about placing the child for adoption at any stage up to the point at which an application for the final adoption order is made. That is an important point. Under Clause 42, there must be a minimum of 10 weeks between the child being placed with prospective adopters and being able to make an application. During that period, we very much hope that the child will get to know the family and that the consent will stick.

Clauses 30 to 33 set out what is to happen when parents change their minds. These clauses establish the restrictions and rules regarding removal. The noble Lord commented that they are complex. I tried to persuade him in Grand Committee that they are really very simple. Certainly, the result that they deliver is simple. There are three basic rules to consider: first, only an adoption agency, not the parents, may actually remove a child from placement. Given the sensitive

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nature of the process, that must be right. Secondly, where consent to placement has been given and the parents subsequently withdraw it with the request that their child be returned to them, the adoption agency must comply within a set period—seven days where the child is under six weeks of age, or is accommodated by the agency but is not yet placed with the prospective adopters, or 14 days where the child has been placed with prospective adopters.

Thirdly, the only exception to this return is where the agency is a local authority and, despite the fact that the parents have withdrawn consent, it considers that the child should still be adopted. In that case, application must be made for a placement order but it must be done within the seven or 14-day period. That is the procedure.

The noble Lord's amendments follow on from his proposal that Clause 19, which deals with placement with consent, should be removed from the Bill. As a consequence, a placement order would apply to everyone. This is reflected in the changes proposed to Clause 30 by these amendments and by the opposition to Clauses 31, 32 and 34 standing part of the Bill. Once a placement order was made, these changes would mean that the child could only be removed from the placement by the local authority. The parents would have no right to request the removal of the child or to have the child returned to them within a set period, as is the case under Clause 19. All they could do would be to return to the court to get the order discharged. Even then, they could only do so if the child had not been placed.

I do not believe that that proposed change is very fair to parents. The Government continue to believe that there should be an alternative route for parents who consent, and that parents should be allowed the opportunity to change their minds. This is a major change from the current position. The noble Lord should carefully consider his proposal. Under Section 20 of the Children Act, 400 children every year are placed for adoption. At present, the parents of those children can exercise their right at any point under the section to have their children returned. However, that possibility would not exist under the proposed amendments. Parents would lose their ability to secure the return of their child without going to court.

We believe that it is well worth keeping that voluntary option open, with the actual return to the parents being handled through the agency. Therefore, the restrictions proposed by the amendments now before the House go too far. To reiterate: rather than expanding the rights of parents, we believe that these amendments would actually diminish them. In both principle and practice, our argument is that the route available under Clause 19 is potentially valuable and that it should be retained.

Finally, I turn to the government amendments, which are minor and upon which I do not wish to detain the House for too long. Amendment No. 41 simply corrects a drafting error in Clause 34, which deals with the restrictions in removing children under placement orders. Only local authorities can apply for

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placement orders, but the clause currently refers to the "agency". The amendment merely corrects the wording so that the clause refers to the "authority". Amendment No. 45 relates to Clause 41, which covers the court's powers to make an order for the recovery of a child where someone fails to comply with the obligations to return the child set out in the earlier removal provisions. The amendment ensures that the court has this power where adopters breach the provision, which is to be added to Clause 31 by government Amendment No. 38, on the return of a voluntarily placed child under six weeks old. We shall be discussing the latter shortly under another amendment. I hope that noble Lords will support these minor corrections.

7.30 p.m.

Lord Clement-Jones: My Lords, I thank the Minister for her vigorous exposition of the Government's case. She fired some heavy artillery in this direction in response to some fairly heavy artillery from these Benches. There are clearly strong feelings and a fundamental difference about how placement is structured. There is no getting away from the fact that it is difficult to find common ground at this stage. It is partly a matter of the detailed drafting of the Bill, but it is also a matter of perception. The noble Earl, Lord Howe, both in Committee and on Report used the word "finality". Although the noble Baroness prays in aid certain provisions, it is the feeling of finality once consent has been given to a placement that is at the root of this. Those of us who tabled the amendment clearly want to go down the route of airing a placement order. That carries with it the corollary that we do away with all of the other aspects, such as the withdrawal of consent and so on, in the adoption order process.

An interesting phrase used by the noble Baroness, Lady Howarth—I think—was that if there is a danger of consent being withdrawn, the agency could go to court. In fact, that is a middle way not currently covered by the Bill, as I read it. Either one is given consent or one is not and goes to court. If the local authority is uncertain whether the consent will endure, at the least it should be able to apply for a placement order. That is not provided by the Bill as drafted.

Just as I delivered a fairly high frequency and volume of words in a short space of time to keep your Lordships' attention, the words of the noble Baroness clearly need further consideration. If we can find a way through this without doing away with the current placement by consent, that would be valuable. The Government have not got the balance right; there are circumstances in which the agency should be able to apply for a court order. That would be a way to resolve the matter. But at this stage, consideration of the Minister's words would be valuable. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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