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Earl Howe: My Lords, it would be disingenuous of me if I said that I was disappointed by that reply because I was not seriously hoping that the Minister would suddenly eat his words at this stage. However, I am very happy to thank him for throwing further light on the matter. I still maintain that it is an unfortunate signal to send to those who, with the best motives at heart, want to give a good and loving home to a deprived child from overseas and who will find themselves saddled with additional costs for all the trouble and expense that they already have to incur in setting about that task.

Nevertheless, I have noted what the Minister has said. I hope that the exemptions about which he spoke will cut in at a reasonable point and that it will be readily apparent to those who are going through the process that those exemptions are potentially available. It is important that it is brought to their notice that if they are of limited means there could be a case for them to apply for dispensation on those grounds. It remains for me only to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Other amendments relating to adoptions from abroad]:

Baroness Barker moved Amendment No. 32:

Page 16, line 40, at end insert—

"( ) In section 85 of the Adoption and Children Act 2002 (c. 38) (restriction on taking children out) in sub-section (2) after "paragraph (a)" insert—
"(aa) the High Court has given leave for the child to leave the United Kingdom to be placed with the prospective adopters pending the issue of an application under section 84"."

The noble Baroness said: My Lords, I find myself in the unenviable position, late at night when people are tired, of having to go through something quite technical at some length. I crave the indulgence of the House to do so. We discussed this matter in a very short period at the end of a day in Grand Committee. I am afraid that we did not do the subject anything like the justice that it should have had. It was a highly unsatisfactory discussion and outcome. So I have to return to the subject at some length.
 
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The issue concerns the adoption of children from this country in countries abroad. Frequently, they will be adoptions by relatives of the children. The Government's response in Committee was that this would be a deregulation too far. The noble Lord, Lord Adonis, accepted that the proposal in this amendment might appear burdensome to some individuals. Our case is that for many individuals it will not be burdensome, it will be impossible. A measure that is designed to protect children may have the effect that they cannot be placed with the most suitable adopters, who are often people with whom they have a relationship. Noble Lords will understand that this amendment seeks to give the courts the power to waive the period of 10 weeks' residence in this country with the people who are going to adopt the child.

The Minister said that the period for the child to have lived with the adopter was being reduced from six months to 10 weeks. He described that as

"a significant move in the direction that the noble Baroness wishes".—[Official Report, 17/10/05; col. GC 178.]

That is misleading. Under the existing provisions of Section 55 of the Adoption Act 1976, the court cannot make an order unless the child has had his or her home with the prospective adopters for six months prior to the order. Under the 2002 Act, the 10-week period must have elapsed before the application can be commenced. Even if the court and all the parties act with the greatest possible speed, it is most unlikely that an order could be made in less than, say, three weeks after the issue of the application. In practice, it could be much longer. The move in the right direction may not be very significant.

There are other changes that have an effect in this matter. Prior to June 2003, the restriction on taking a child out of this country for adoption did not apply if the child was to be adopted by a parent, guardian or relative, which was defined as including aunts, uncles and grandparents, but not great aunts or great uncles. Since that date, the amendment to the 1976 Act introduced by the Adoption and Children Act 2002 has removed the exemption in relation to adoption by relatives. The 2002 Act does allow for regulations to be made that would make exceptions for relatives, but none has been made.

In addition, the 2002 Act has made a significant amendment to the Children Act 1989, which restricts the ability of a local authority that has a child in its care to obtain leave of the High Court to place the child outside England and Wales if the placement is to be for the purpose of adoption. That amendment will come into force with the rest of the 2002 Adoption Act on 30 December this year. It is somewhat illogical that the power exists for the court—any court, it could be a magistrate's court or a family proceedings court—to make an order permitting a local authority to place a child in its care outside the jurisdiction under paragraph 19 of Schedule 2 to the Children Act 1989, including overruling a parent's objection to such a course if the court is satisfied that the parent is unreasonable in refusing to consent, as long as, from
 
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30 December when the Adoption and Children Act comes into force, the placement is not for the purpose of adoption.

There are no specific requirements about the report that must be supplied to the court or about the nature of the supervision that it is proposed will be exercised once the child leaves the jurisdiction, although, in practice, the court will wish to be satisfied that the arrangements are going to be made. The court in such Children Act proceedings is required, as it will be in the proceedings under the Adoption and Children Act 2002, to regard the child's welfare as its paramount consideration. However, the court may, in those cases where a placement for adoption is proposed and it is impossible for the prospective adopters to comply with the residence requirements of Section 84 of the Adoption and Children Act, find itself unable to make the order that would, in its view, be the best one to promote the child's welfare.

In Committee, the noble Lord, Lord Adonis, said that it was necessary to have regard for the fact that once a child was outside the United Kingdom, he or she would no longer have the protection of the authorities in this country. The same applies to children placed, with the leave of the court, outside the jurisdiction under the Children Act 1989.

9.45 pm

The noble Lord suggested that should the adoption not proceed as planned, we in the UK would not know whether it had occurred. That is a possibility. But the reason for suggesting in the amendment that this power should be exercisable only by the High Court underlines the importance of careful scrutiny that would be required before an order were made. In practice, in placements for the purpose of adoption, it is likely that careful assessments and inquiries would have been undertaken before an application was even made to the court and that there would be an even greater likelihood that it might be the case, say, if the child were placed with foster carers under the Children Act provisions, that the overseas authorities concerned would notify the UK authorities if for some reason the adoption did not proceed.

The trial period required before an adoption order can be made has been put in place to enable the court, with the benefit of reports presented to it by the adoption agency, to satisfy itself that the child has settled in well with the new family. It presents a problem where the family does not live in the same country as the child. The solution we have adopted in England and Wales is that adopters who live in another country must be in this country for a trial period. That is a major drawback, particularly for relatives who live abroad and who may have jobs abroad. They may not have jobs at all but simply live abroad, but they are the only relatives of those children.

The point of this amendment is to enable families living abroad who are going to adopt children to do so, when it has been determined that they are the best people. As the noble Lord, Lord Adonis, outlined the
 
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matter, adopters will have to move back to this country for a period, which may jeopardise their livelihoods and would not be in the best interests of children.

I have taken a lot of time on the amendment, for which I apologise. I realise that these provisions apply to a very small number of children, but I do not think that I shall have an opportunity in the near future to raise their case again. All we ask is for the High Court to have the flexibility, in particular cases where it is satisfied that it is in the best interests of a child to be adopted abroad, to enable that to be done in a way which does not mean those prospective adoptive parents cannot meet our criteria. What matters is the welfare of the child when living with those adoptive parents. I cannot see why insisting that they be assessed for an extended period in this country will necessarily help the court to determine what happens. I beg to move.

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