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Earl Howe: My Lords, I am grateful to the Minister and take on board his points about the effect of my amendment if accepted. As I am sure that he appreciates from my earlier remarks, the amendment was designed as a device to tease out a little more information about the Government's thinking on how the system will work in practice—in particular, on the major question, which I know puzzles and worries many people at present: what will constitute sufficient information in that context? We may each have our own ideas about what may constitute sufficient information, but it would be useful to have at least a broad idea about that placed on the record. However, I realise that that request may not be reasonable at this stage.
I had also hoped that the Minister would say something about fees, which are another worry to those who specialise in adoption. As I said, they will impact especially on those from overseas who come to the United Kingdom and are confronted with an expensive system.
Lord McIntosh of Haringey: My Lords, I apologise to the noble Earl for not referring to fees, which he indeed raised in his opening speech. I can either give him an answer now or write to him and other noble Lords.
Earl Howe: My Lords, I should be most grateful if the Minister would write to me in due course on the matter. I am grateful for that offer. Nevertheless, this has been a useful exchange. Once again, I thank the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 [Adoption Contact Register: supplementary]:
Clause 83 [Restriction on bringing children in]:
Clause 84 [Giving parental responsibility prior to adoption abroad]:
Clause 85 [Restriction on taking children out]:
Clause 89 [Section 88: supplementary]:
Clause 91 [Restriction on arranging adoptions, etc.]:
Clause 96 [Sections 91 to 95: interpretation]:
Lord Hunt of Kings Heath moved Amendment No. 96A:
- After Clause 96, insert the following new clause—
On Question, amendment agreed to.
[Amendments Nos. 97 and 98 not moved.]
Clause 110 [Acquisition of parental responsibility by step-parent]:
[Amendments Nos. 99 to 101 not moved.]
Baroness Thomas of Walliswood moved Amendment No. 102:
The noble Baroness said: My Lords, I was under the impression that the noble Earl, Lord Listowel, was to lead on this amendment, but perhaps he has been foxed by the speed with which your Lordships have got
Noble Lords will know that there has been a great deal of concern about the availability of independent support and advocacy on behalf of children during the adoption process. The amendment, together with Amendments Nos. 117 and 118, relate to that subject.
There have been many arguments on the matter since the beginning of the Bill's passage. On these Benches, we have taken the line that children who are too young to be able to make legal representations on their own behalf should be able to get independent legal advice or advocacy—whatever word we want to use—whenever they are subject to or a party to a case relating to adoption or any other children's case.
Another aspect of the matter is that the right of a child to be represented by an advocate is already part of the general public law. We would prefer it to become part of this Bill so that, in any relevant case, the child would have the ability to be represented. Others who have spoken to us about the matter also feel that it is important to get rid of the difference between public and private law in this respect. Members on the Government Benches will be aware of that; they will have received the same briefings.
A third argument has to do with whether this country is compliant with international legislation on the rights of the child. The relevant legislation says that a child shall be represented in legal cases according to the protocols or something like that—I quote from memory—of the country involved. Our interpretation of that is that the child shall have that representation not in every case but in cases in which it is clear that the child needs that representation and that in no case involving a child should the child be unable to get such representation. The law, as it stands, puts children in the United Kingdom in that position, which is why I have constantly queried our consonance with the two major pieces of European and United Nations legislation on the rights of the child.
The Government have made their own proposals about advocacy, but we must know that the child is secure. If a judge decides, on the basis of any part of the Bill, that a child requires to be represented, the child must be independently represented. We also want to know that our compliance with international human rights law is complete. I beg to move.
Baroness Noakes: My Lords, I compliment the noble Baroness, Lady Thomas of Walliswood, on a bravura performance, even though she had no prior notice that she was about to move the amendment.
I know that the Minister will give a detailed resume of the legal position on the representation of children and will say that what is sought in the amendments is already covered by existing rule-making powers and/or the practice of the courts. I, for one, would not dream of challenging the Minister whose expertise in that area of the law is widely famed. But—it is a big "but"—the fact remains that the Government have
I thank the Minister for the useful briefing note that was circulated on 4th October. It referred to messages from a scoping study and possible areas for further consultation. However, the note gave no timescales and did not identify any particular areas that the Government were committed to pursuing. I hope that, if the legal framework is to be accepted as perfect, the Minister will accept that something must be done about implementation in practice. It should be clear that the need for the representation of children's views about their future is beyond question. If further consultation is required, it must be timetabled.
I hope that the Minister will be positive about the matter. If she is not, the case for the amendments will become compelling.
The Earl of Listowel: My Lords, I shall speak to Amendments Nos. 102 and 117, which stand in my name. Before doing so, I sincerely thank the noble Baroness, Lady Thomas of Walliswood, for stepping into the breach. I apologise to the House for being detained. I was trying to perfect what I was going to say, so I hope that I can do it justice now.
The Minister has been a well respected practitioner in this area, as the noble Baroness, Lady Noakes, said. The Minister has said that there should be a change in the culture of private law proceedings involving children, and she has helpfully provided briefings on the many steps she is taking to bring about that change. She has argued that it is practice that must be addressed and that that would be best done through training. She has argued that there is already an adequate framework in private law to protect children.
I have weighed carefully what the Minister said. I have paid close attention to what she said about the problems that could arise in providing equality of arms for children in private law cases. The Minister said that that could lead to the prolongation of cases and could mean that the child would have to take the side of one parent or the other. The indiscriminate use of separate representation for children in private law cases is not desirable.
I took a pause for thought and consulted children and family court reporting officers and children's lawyers working in this area. The consensus was that the framework is not as it should be. There is a lack of means for courts to appoint separate representation if it is felt that that is necessary for the child. The courts would appreciate more guidance on when to consider the introduction of separate representation for children.
There are two main pathways into separate representation for a child. There is Section 9(5), which provides for the assistance of a Children and Family Court Advisory and Support Service officer. The officer is empowered to appoint separate
Amendment No. 102 seeks to allow the Lord Chancellor to establish rules that will enable the courts to give particular regard to whether a child should have a guardian appointed and should be empowered to have separate representation. For instance, if the parents are in court for the 24th time litigating against one another, the courts in the new circumstances will be empowered to appoint a guardian for the child. The court may be the only means, through considering the needs and wishes of the child, to end such prolonged and protracted litigation.
Where there is disputed contact, the courts can more easily obtain a thorough investigation of the children's circumstances and ensure that the voice of the child is heard by appointing separate representation.
A model already exists in statute; Amendment No. 102 is modelled closely on Section 64 of the Family Law Act 1996. My noble and learned friend Lord Simon of Glaisdale spoke eloquently at the time of passing that law for the need of such provision.
I should be grateful if the Minister could say why the Government are choosing not to reinstate a provision already accepted under the Family Law Act 1996. This is an important new means to support and protect children in private law proceedings.
"PRE-COMMENCEMENT ADOPTIONS: INFORMATION
(1) Regulations under section 9 may make provision for the purpose of—
(a) assisting persons adopted before the appointed day who have attained the age of 18 to obtain information in relation to their adoption, and
(b) facilitating contact between such persons and their relatives.
(2) For that purpose the regulations may confer functions on—
(a) registered adoption support agencies,
(b) the Registrar General,
(c) adoption agencies.
(3) For that purpose the regulations may—
(a) authorise or require any person mentioned in subsection (2) to disclose information,
(b) authorise or require the disclosure of information contained in records kept under section 8 of the Public Records Act 1958 (c. 51) (court records),
and may impose conditions on the disclosure of information, including conditions restricting its further disclosure.
(4) The regulations may authorise the charging of prescribed fees by any person mentioned in subsection (2) or in respect of the disclosure of information under subsection (3)(b).
(5) An authorisation or requirement to disclose information by virtue of subsection (3)(a) has effect in spite of any restriction on the disclosure of information in Chapter 5.
(6) The making of regulations by virtue of subsections (2) to (4) which relate to the Registrar General requires the approval of the Chancellor of the Exchequer.
(7) In this section—
"appointed day" means the day appointed for the commencement of sections 56 to 65,
"registered adoption support agency" means an adoption support agency in respect of which a person is registered under Part 2 of the Care Standards Act 2000,
"relative", in relation to an adopted person, means any person who (but for his adoption) would be related to him by blood (including half-blood) or marriage."
Before Clause 111, insert the following new clause—
"ORDERS WITH RESPECT TO CHILDREN
In section 8 of the 1989 Act (residence, contact and other orders with respect to children) there is inserted—
"(5) The Lord Chancellor may make regulations providing for the separate representation of children in specified circumstances relating to any matter arising from proceedings under this section.""
3.30 p.m.
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