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Baroness Howarth of Breckland: My Lords, at this late hour, I almost did not get up to speak. I simply want to say that it is an absolutely legitimate concern to ensure that we look at the cases on their needs, rather than on which way they come through the system. Although I am not sure that the amendment is the vehicle by which we achieve that, because guidance in the area is always difficult to get exactly right, CAFCASS is looking at the matter in practice. You will see that in everyday matters. We are attending to it. The situation cannot be allowed to continue in which you spend six times as much time on a public law case as on a private law case, when the circumstances of those cases are difficult to distinguish. The service—and, I am sure, the Government—are determined to put that right. I am not sure that guidance will help us, but it is worth being prodded to get the practice right.

Lord Adonis: My Lords, we are grateful to the noble Baroness, Lady Walmsley, for raising the issue. We have demonstrated, both in the amendments that I have moved this evening and in those that we have accepted from my noble friends, that we take the safety of children and all legislative and other means for ensuring that they are protected very seriously. That applies to the concerns raised by the noble Baroness too. I am not entirely closed-minded about the issues that she raises. As we have shown, we are prepared to consider all issues relating to child safety again and again where we think that changes would lead to a better regime for the protection of children.

I invite the noble Baroness perhaps to tell me in more detail her concerns after the debate. She made a rather enigmatic remark about the courts not being unwelcoming—I think that was her phrase; it was something of that kind—to such guidance, or her having reason to believe that they might welcome it. I would very much welcome any information that she could give me on that, as our advice is that the courts are content with the status quo and have not exhibited any concerns about the absence of guidance for using their powers. Their powers as set out under Section 37 of the 1989 Act are very robust in the instructions that they can give to local authorities for the investigation of cases where there could be a public law dimension, and in which care orders or other interventions may be required.

Our current position—subject to further discussion, which I am prepared to undertake—is that we do not see a case for the further guidance because it would meet no need. Therefore, it would not lead to an improved regime. Indeed, we are somewhat concerned that issuing guidance by the Secretary of State, as the amendment suggests, could even have the effect of limiting the discretion of the judiciary, despite all the
 
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eminent people that the noble Baroness suggests we should consult. We would then have to lay down the specific cases, or give indications of what those cases would be, where they should act, which could only have the effect of circumscribing the discretion of the courts, unless the guidance was so general that it did not serve to amplify in any way on Section 37 of the 1989 Act.

We see this in the context of the amendments we have passed today. These amendments strengthen investigating procedures in respect of children who may be at risk. Amendment No. 27 moved by my noble friend Lady Gould sets out the statutory approach that we have now agreed to risk assessment. CAFCASS has made it clear that if its risk assessments alert it to concerns for children, it will take the opportunity to refer them directly to the local authority to make the necessary investigations under Section 37 of the 1989 Act.

Taking all this together, we are not at the moment persuaded that there is a case for further change, but we are mindful of the need to do everything we reasonably can to meet concerns about child safety. If the noble Baroness wishes to amplify on her earlier remarks to me, I would be happy to look at the matter further.

Baroness Walmsley: My Lords, I thank the Minister for his response and other noble Lords for their support for the idea of this amendment. I am sure that it would not be beyond the capability of the Government and their lawyers to draft guidance which, while setting down the range of circumstances under which these powers should be used, could at the same time make it clear that the discretion of the court was not fettered or limited to those situations. One would not want to fetter the court. Perhaps a practice note to go with such guidance might be helpful. My enigmatic remark related to conversations I have had in confidence with members of the judiciary, so I cannot go any further than that.

I am particularly taken by the comments of the noble Baroness, Lady Howarth of Breckland, about the amount of time spent on children in public law and private law. I am looking for rigour and consistency and I do not argue for one moment that the Section 37 powers are not robust. What we want is for them to be used and used consistently. It is like the risk assessment issue—some people did it but others did not. In some circumstances where they did not, there may have been a problem. This is why the noble Baroness wanted to introduce her successful amendment. My approach is the same. In some cases these powers are used perfectly appropriately; in others, one has the feeling that there are situations where there should be intervention and there is none. That is why I think guidance might be helpful.

It is not the answer to everything—guidance is only guidance. But it can have considerable power when it relates to issues like this, where a child could be killed if the courts did not use the powers appropriately. The pressure on them to comply with the guidance would
 
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be considerable. I am sure all the expert practitioners in the country would want to contribute to the consultations that take place before the publication of these guidelines. I am sure the Government would not be short of experts to advise them on such guidance.

I have listened to what the Minister said. Perhaps we can have a conversation about this issue before the next stage of the Bill. I tabled the amendment in the spirit of the constructive development of the safety issues of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 pm

Clause 12 [Power to charge]:

Earl Howe moved Amendment No. 31:

Leave out Clause 12.

The noble Earl said: My Lords, I make no apology for returning to an issue that we debated briefly in Grand Committee; namely, the provisions in Clause 12. It was clear from our earlier debates that there is an issue of principle here about which we and the Government are in fundamental disagreement. The Government propose to levy charges for the work done by departmental officials in connection with intercountry adoptions. They justify that by saying that this work is a personal service and that the money could be better spent elsewhere. I am the first to agree that no public expenditure is trivial. But we are looking here at saving a sum of money which in the departmental context is small but which to individual adopters could well be substantial. That situation, frankly, does not commend itself to me.

More importantly, however, I take issue with the argument that this is a personal service. It is surely no such thing. It is in essence nothing more nor less than child protection work. Where else in this country do public authorities charge for child protection? In the case of intercountry adoptions we have entered into international obligations to ensure that those children who are adopted from abroad are not exploited or otherwise improperly treated. So I ask the question that I posed in Grand Committee. Since when has it been thought right to transfer the cost of meeting those obligations from the public purse to private citizens?

I should be very grateful if the Minister was able to answer those points, because bodies such as BAAF which concern themselves with intercountry as well as domestic adoptions regard Clause 12 as a clear and unwelcome signal from government that intercountry adoption, for all the fine words heard during the passage of the 1999 Act, is seen as a low status activity in comparison with domestic adoption. I have to say that that is the only logical conclusion that can be drawn from this clause. I beg to move.

Baroness Barker: My Lords, I am very grateful to the noble Earl, Lord Howe, for returning to this subject, not least because it enables me again to ask the Minister a question that I asked in Grand Committee and I believe has not yet been answered. The service is
 
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provided not only to individuals seeking to adopt but is a service that is provided to others including local authorities. Can the Minister explain whether the department, in its costings and reaching its figure of £240,000, has separated out the service to individuals from the service that will be more widely used?

Lord Adonis: My Lords, I am well aware that I am arguing the least popular cause of all this evening and that my comments will not make many converts, but I hope that I can at least explain the Government's thinking behind the inevitably unpopular decision to charge for a service that has previously not been charged for.

In the first case, there is a simple issue of priorities. We believe that it is better to put the resources into the front line where there is higher priority than to subsidise individuals whom we believe are well able to pay the fees we are discussing, while accepting that we will waive those fees on a means-tested basis for those who are not able to pay.

Our second argument relates to some of the international comparisons which we have looked at since then. I think it was suggested in an earlier debate that we were highly unusual in adopting this course. In fact it transpires that other countries do charge at similar rates for their administrative casework services. I am informed that every state in Australia, for example, charges administrative fees at varying rates and for different functions. New South Wales charges 2,270 Australian dollars, about £950, for a central administrative and casework service similar to the one that we are proposing, which is part of government fees totalling 9,700 dollars, or £4,100, on top of fees from other sources. Switzerland, Norway and Israel all have fees which include costs for adoption assessments and for administrative work akin to our casework process. Israel caps total fees at 20,000 US dollars, which is about £11,300.

So I do not think that we are way out of line on international practice in what we are seeking to do.

The Hague Convention allows reasonable fees to be charged for that work, which is precisely what we propose in this case. As we have said, in the context of approximate total cost to inter-country adoption, which ranged between £10,000 and £12,000, we do not think that it is unreasonable to make a fee of that kind so that resources can be directed to higher priority services.

On the point raised by the noble Baroness, Lady Barker, we see advice to social workers on domestic and international issues as fundamentally different from the support service that is provided directly to individuals. It is reasonable to split out those costs in the way that we propose.

In Grand Committee, I made a point which I repeated today. We are very mindful of the need to see that the service reaches a higher standard before people are expected to pay for it. In Grand Committee,
 
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I indicated that we would expect applications for which we are in receipt of full and complete documentation to be processed within 12 to 14 weeks, which is significantly less than some of the periods that have been experienced recently, as we modernise the service and seek to bring administrative functions together in one place. We would be charging for a service that would be improving. I recognise that charging for any service which has previously been free will be regarded by some people as unreasonable. But in the context of priorities, international best practice and overall charges which inter-country adopters face, and the waiver that we will give for those on lower incomes, we believe that this is a reasonable step to take.

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