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Lord Campbell of Alloway: My Lords, the noble Baroness has reached the nub of the argument. Can she accept that the position is this? The noble and learned Lord, Lord Lloyd of Berwick, would have confirmed it if asked. If there is any hint of harm to the child, there will be no order for adoption. This provision is used as a bar to adoption. It is quite a different concept.
Baroness Andrews: My Lords, I absolutely accept that. As I said, here we are considering a threshold which is normally used in cases of child protection. I believe that there is another complication which follows from that. While, on the one hand, we were anxious that the Bill should be consistent with the Children Act, and we have tried to ensure that throughout, the Children Act threshold should also be present in order to protect families from compulsory intervention in the context of adoption. That is why Clause 21 already applies the significant harm threshold to the making of placement orders. Obviously, local authorities will use those orders in the first instance in seeking to place children for adoption, often at the same time as they apply for care orders.
However, the question of whether final adoption should be made comes later in the process. In adoption cases, either the parties will have given consent to placement or a placement order will have been made, in which case the significant harm threshold will already have been triggered by definition. By the time of the final adoption hearing, the child is likely to have been placed with prospective adopters for several months and, at that point, strictly speaking, there should be no question of significant harm to the child.
While the decision to move to the final stages of adoption will require that point to be revisited—obviously it will form part of the consideration—the courts will also have to take into account the wider expectation. Of course, the additional safeguard for parents is that, if the circumstances change, they can change their mind about the final adoption order. Therefore, I believe that the court should be able to weigh up the two alternatives. It should be able to consider the whole picture and all the relevant factors in this positive, safe and constructive manner and not simply take into account harm of the child.
These are not straightforward matters, and I sincerely respect the way that we have all wrestled with them at various stages of the Bill. We have been most grateful for the advice that we have received from the noble Lord, Lord Campbell of Alloway. However, given that we have put into the Bill the paramountcy
principle, I believe that it would be inconsistent, to say the least, to try to undermine or condition it in this way. The courts should have the discretion. Where a court considers that welfare requires that parental consent be dispensed with, then I believe that that is what should happen.
Earl Howe: My Lords, perhaps I may say that that was an extremely illuminating reply. As I sat listening to it, the pieces fell far more securely into place than they did in Grand Committee. Perhaps that was a reflection on my level of concentration in Grand Committee as compared with this evening. I am most grateful to the noble Baroness and I shall obviously read again what she said. I believe that she put the whole matter into its broadest context. I also want to thank my noble friend for the light that he was able to shed on this question.
I understand the need to refer back to the key provisions of Clause 1 in this context. Earlier, I felt that the Bill needed to refer in terms in this clause to the kind of exceptional circumstances that are required under European law. However, from what the noble Baroness said, I take it that it is not so much the language as the practice that matters. A decision by a court—if it is ever challenged—will rest upon the reasonableness of that decision in the context of Clause 1. I accept that.
Obviously I shall not press the amendment today. However, I believe that it has been useful to raise this matter again as I believe that the noble Baroness's reply will be a reference point for the writers of legal text books; at least, it deserves to be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne moved Amendment No. 67:
- Page 32, line 25, leave out subsection (6) and insert—
The noble Lord said: My Lords, this amendment concerns parental responsibility. It seems to me that there may be a danger of injustice, in particular, to fathers. Clause 52, as drafted, provides, in effect, that if a birth father wants to have any say in the adoption process, he must have parental responsibility. Your Lordships will all know that parental responsibility is granted automatically if the father is married to the mother or if his name is on the child's birth certificate. Noble Lords will also know that a birth father can apply to the court for parental responsibility. I do not believe that Clause 109 alters that position.
The problem is that, in practice, a great many birth fathers today are simply not aware of the importance of parental responsibility and, for that reason, have not bothered to apply for it. The amendment is intended to allow such fathers time to apply for parental responsibility if they are suddenly confronted with adoption proceedings in relation to their child. It would allow them to have time to apply before it was too late and they were caught by Clauses 9 and 10. I am not certain but I do not believe that Clause 10 materially affects the usefulness of what I propose in the amendment. I beg to move.
Baroness Barker: My Lords, I rise briefly to support the noble Lord, Lord Northbourne, in his amendment, in particular paragraph (c), and to make one point relating to absent fathers.
There is an almost automatic assumption that a father who absents himself from the care of a child or from living with the mother of a child does so for bad reasons. That is not always the case. I know of a couple of cases where fathers have absented themselves from the family home because they believed that it was in the best interest of the child to do so as the quality of the relationship between the child's mother and father was bad. One such father subsequently discovered by an indirect route that his children were being put up for adoption and could have gone without him knowing.
Therefore, the point which has been raised before by the noble Lord, Lord Northbourne, concerning the strength of the effort to find birth fathers is one which deserves to be underscored. I accept that the majority of cases will not be as I have described; but there are some such cases. For those people I believe that we should go the extra length to ensure that they are fully consulted.
My resolution to support the noble Lord was strengthened by the experience of talking to a birth father who has gone along to relinquish parental responsibility and subsequently to sign for his child to be adopted. I was extremely moved as he described going to the court and queuing alongside people who were paying parking fines and fines for non-payment of bills, rates and so forth, to sign away his children.
I believe that that is an indignity through which we should not put people. Those responsible for making the decisions have a duty to try as best they can to ensure that such people have been fully informed. I understand the difficulties experienced by care agencies in trying to find fathers and trying to make them responsible. However, some people deserve not to be categorised or treated in that way. Therefore, I support the noble Lord, Lord Northbourne.
Baroness Andrews: My Lords, I am well aware that both the noble Lord, Lord Northbourne, and the noble Baroness, Lady Barker, speak from long experience and a deep concern for the cases they visualise when they describe the implications of the amendment. I appreciate and respect that.
The noble Lord, Lord Northbourne, spoke of the danger of injustice. In the amendment, matters turn on who counts as a parent for the purpose of consent to placement. We are keen not to perpetrate any injustice in the Bill and to put right what we can. As regards unmarried fathers, perhaps I may remind noble Lords of the position under the 1976 Act, and that the provisions in Clause 52 concerning consent to placement and adoption orders provide that the people whose consent is required are the parents or guardians of the child. That is straightforward. In this case "parent" means parent with legal parental responsibility within the meaning of the Children Act. That is exactly the same position as applies now under the 1976 Act.
I believe that the noble Lord is mainly concerned with the position of unmarried fathers. To reiterate, under the Children Act an unmarried father does not automatically have parental responsibility for his child, so does not automatically have the right to consent to the adoption of his child. He can obtain parental responsibility by reaching an agreement with the mother, by marrying the mother or by obtaining a court order giving him parental responsibility.
I am pleased to state that in Clause 109 there will be in future another route. Unmarried fathers will have parental responsibility automatically where they jointly register the birth of the child with the mother. I am sure that over time that will mean that this other route will open up the prospect of shared responsibility in the way we hope.
However, the noble Lord's amendment focuses on what should happen where, for whatever reason, an unmarried father does not have parental responsibility and how he should be involved in any court proceedings.
In addressing the amendment I go back to much earlier in the adoption process. We discussed the issue of placement orders on Monday. I explained that where an adoption agency is considering placing a child for adoption it has to abide by its obligations under Clause 1(4)(f), which requires it to consider the wishes and feelings of the child's relatives, including both parents.
We would expect the agency to consult and involve members of the child's family, including unmarried fathers, in all circumstances unless it would be contrary to the welfare of the child. I take the point made by the noble Baroness, Lady Barker, that there are cases, which I presume are rare, in which fathers have absented themselves willingly because they feel that they would be an embarrassment or obstruction or may cause a difficulty to the child.
The explicit duty on adoption agencies exists at present under Regulation 7(3) of the Adoption Agencies Regulations 1983 to contact and involve the unmarried father of the child where he is known to them and where that is practicable and consistent. We expect all reasonable steps to be taken within that framework of consistency to find the father.
In another place my right honourable friend the Minister of State for Health, Jacqui Smith, gave an explicit commitment that that obligation will be repeated and expanded upon in the new regulations and guidance to accompany the implementation of the Bill. It will also take account of recent ECHR-related case law, which places further emphasis on the importance of informing, involving and consulting unmarried fathers. I believe that that extra dimension will make the commitment and our resolution to follow it much clearer and stronger. Therefore, that will be an improvement.
Moreover, when the agency is in any doubt as to whether or not to consult the unmarried father, as I said on Monday, we envisage providing in court rules for it to be able to make a direct application to the court for guidance on this matter. Therefore, there are two ways in which that will be strengthened.
The intention is that in the vast majority of cases the unmarried father without parental responsibility will be aware of the proposed plan for the adoption of his child well before any application for an adoption order. He will then be able to take the action anticipated in the noble Lord's amendment. It will be open to him to apply for an order giving him parental responsibility under Section 4 of the Children Act.
However, I also know that the noble Lord wants to widen the window. That is the intention of his amendment. I assure the noble Lord that there is such an opportunity. Under the Bill, where a child has been placed for adoption with prospective adopters, there will be a period of 10 weeks when the child is living with the adopters when it will be possible for the unmarried father to make arrangements to apply for parental responsibility.
Paragraph (b) of the amendment concerns what should happen when such an application is pending. Here, we run into a few difficulties. When there is a pending application for a parental responsibility order from an unmarried father and at the same time an application for a placement order or an adoption order, we would expect that the court would ensure that the matter of the parental responsibility would be resolved first. Therefore, the father will not be in a state of limbo. He will be able to assume parental responsibility if the conditions are right before the next steps are taken. That is in line with the approach adopted by the courts when there have been doubts in the past. I hope that it is a more appropriate solution than that proposed by the noble Lord.
We also have concern about the uncertainty of the amendment. Paragraph (b) would mean that a parent who did not have parental responsibility but who had applied for it would be treated for the purposes of adoption as if he already had it. However, the corollary of that would be that if his application was unsuccessful he would be treated as if he did not have parental responsibility.
In our interpretation, there is a slight inconsistency. Two people without parental responsibility would be treated differently. I do not think that the noble Lord wishes that. While we are concerned about the
I know that the noble Lord will agree that there needs to be absolute certainty at every stage of the process. That is what we aim for. That is why we have difficulties with the amendment.
"(6) "Parent" in this section means—
(a) a parent having parental responsibility for the child,
(b) a parent who has applied to the court for parental responsibility for the child and is awaiting a determination by the court, or
(c) a parent who does not have parental responsibility for the child until he has been notified in writing that he has the right to apply to the court for parental responsibility and has either declined or failed to do so within a period to be stipulated in regulations."
8 p.m.
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