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Lord Hunt of Kings Heath: My Lords, we return to the hierarchy of relationships, as I like to call it. It is not a question of the married status so much as the judgment about the strength of the relationship which surely must inform the adopter assessment process.
In relation to that, the consultation document states:
- "It is currently common practice among agencies to require any marital or cohabiting relationship to be of sufficient length to demonstrate stability".
I undertook to give careful consideration to the arguments made in favour of applying the affirmative resolution procedure. I agreed with the noble Earl that he had made an important point and I have in response tabled my Amendment No. 154. It will ensure that regulations made under Clause 45 concerning the matters to be considered in determining the stability and permanence of a couple's relationship—be they married or unmarried—will indeed be subject to the affirmative procedure.
Whatever the ultimate conclusion in relation to unmarried couples, it is right that Parliament should debate the matters to be considered in determining the stability and permanence of a couple's relationship.
That is why I hope that the noble Earl will accept that my Amendment No. 154 meets the needs of that requirement.
Earl Howe: My Lords, I am grateful to the Minister and wholeheartedly welcome his amendment. I did not want to pre-empt him; it was right that he should speak to it first. It is good news and I thank him.
I was a little surprised by what he said in answer to my specific question about a consultation document because it implied that in the assessment process the fact of marriage would not be relevant. Indeed, he said that the strength of a particular relationship would be assessed in other ways. I find that extraordinary and I hope that in practice it will not be the outcome.
Lord Hunt of Kings Heath: My Lords, we risk going over the ground that we have already covered. I sought only to say that it would be wrong if in the adopter assessment process simply the fact of being married was regarded as of a higher status than that of two couples who were not married but were in a successful relationship. Ultimately, one must come back to an individual judgment about a particular couple.
Earl Howe: My Lords, I understand that and I am grateful to the Minister for repeating his point. However, it is strange that whatever form a couple have to fill in will not contain the question, "Are you married?" I should have thought that that was a relevant fact in any assessment, but I shall not labour the point further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 55:
- Page 29, line 10, leave out ", the Children (Scotland) Act 1995 (c. 36)"
The noble Lord said: My Lords, in moving Amendment No. 55, I shall speak also to government Amendments Nos. 56, 57, 129 and 138. I want also to make favourable reference to Amendments Nos. 128 and 149 in the name of the noble Baroness, Lady Barker.
These amendments have been brought forward in recognition that the orders that can be made under the Children (Scotland) Act 1995 are not the same as those that can be made under the Children Act 1989. In particular, the 1995 Act contains a statutory scheme for dealing with children's property. An order can be made to administer the child's property or to appoint a court official to carry out that task.
Following consultation with the Scottish Executive, we do not believe that such orders should be automatically extinguished by an adoption order being made in respect of the child in England and Wales. The equivalent Scottish legislation contains no such provision.
We believe that the correct course of action is that an application should be made to the court that made the order to vary or discharge it. The court can then
consider the adoption in making a decision in the best interests of the child. The amendments provide that orders made under the 1995 Scottish Act concerning a child's property will not be extinguished by an adoption order in England and Wales. The amendments also provide that exclusion orders under the 1995 Act should not be extinguished.These orders exclude named persons from the child's family home if the child has suffered or is likely to suffer harm from the conduct of the named person and that making an order is better than removing the child from the home. The orders are applied for by the local authority. They are intended to protect the child and are likely to be less appropriate if the child has left the home in Scotland and is now placed for adoption in England or Wales. However, the 1995 Act contains provisions to deal with this situation. After consultation with the Executive, we have decided that this should remain the case.
As the effect of these orders is not directly on the child's legal relationship with an adult, they are not part of the adoption process itself. Other orders made under the 1995 Act, concerning residence, contact and other specific issues, will be extinguished on the making of an adoption order in England and Wales, as the equivalent orders under the 1989 Act will be by the rest of this clause.
Amendment No. 129 inserts a new Section 56 into the Adoption (Scotland) Act 1978. Scottish local authorities cannot currently make an application for freeing orders as they are expected to apply for freeing under the equivalent provisions of the 1976 Act in England and Wales. As the Bill replaces freeing orders with placement orders, there would be a legislative gap where a Scottish adoption agency wishes to place a child in England and the agency needs to apply for a freeing order.
The amendment would allow Scottish local authorities to apply for freeing orders for children who are placed for adoption from Scotland to prospective adopters in England or Wales. However, the child may still require to be freed before an adoption order can be made in England or Wales and that can be done only through this amendment. It also allows flexibility in those cases for the adoption to be applied for in Scotland or in England and Wales.
I turn to Amendments Nos. 128 and 129 tabled by the noble Baroness, Lady Barker. They do not change the effect of the provisions. Existing freeing orders made under the 1976 Act will continue to be recognised in Scotland after that Act is repealed. The argument for the amendments is that it is clearer to leave this intention on the face of the relevant Scottish primary legislation rather than rely on transitory provisions in this Bill.
The amendment would ensure that the Scottish adoption legislation—that is, the Adoption (Scotland) Act 1978—continues to say in its text that freeings from England and Wales, granted before the Bill comes into force, are recognised.
It is the clear policy of the Bill that although freeing is to be abolished in England and Wales, orders in existence up to the implementation of the Bill will still be recognised in England and Wales and in Scotland. However, as drafted, the Bill deletes the recognition of these freeings in the 1978 Act so that on its face that Act will look as though there is no recognition of them.
The fact that recognition is continued by reference to Schedule 4 (transitional provisions) will not be of direct assistance to the Scottish courts and Scottish legal advisers. Scottish legal practitioners and courts will not have in front of them, in the normal course of events, a copy of the Bill as passed. However, they will have access to an up-to-date version of the 1978 Act. Following consultation with the Scottish Executive, we accept the argument and we are prepared to accept Amendments Nos. 128 and 149.
Amendment No. 138 is aimed at paragraph 19 of Schedule 2 to the Children Act 1989. Paragraph 19(1) of Schedule 2 provides that where a child is subject to a care order, the court must approve his being moved by a local authority to live outside England and Wales. In the case of any other looked-after child, paragraph 19(2) of Schedule 2 to the Act provides that the child may only be moved outside of England or Wales with the consent of all those who have parental responsibility for him. It would therefore be possible for cross-border placements—in other words, between England or Wales and Scotland—to be blocked.
Let us take the example of an English adoption agency which has been authorised to place a child in England for adoption under Chapter 3 of the Bill, and the child's parents have consented to placement or a placement order has been made. Let us say that the agency considers that a placement with Scottish adopters is in the child's best interests and wishes to do that. Any person with parental responsibility for the child could then, under paragraph 19, block that by objecting to it, even though the conditions for placement in the Bill have been complied with and the placement is considered to be in the child's best interests.
The amendment therefore disapplies paragraph 19 so that where a child is looked after by a local authority, and the authority has already been authorised to place the child for adoption under Chapter 3 of the Bill, it will be able to do so outside England or Wales into another part of the United Kingdom without the need to have the consent of all those with parental responsibility. I beg to move.
7.30 p.m.
Baroness Barker: My Lords, in speaking to Amendments Nos. 128 and 149, I agree with everything that the noble Lord, Lord McIntosh of Haringey, has just said.
On Question, amendment agreed to.
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