House of Commons - Explanatory Note
ADOPTION AND CHILDREN BILL - continued          House of Commons

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Clause 95: Section 8 orders: local authority foster parents

219.     Clause 95 amends section 9 of the Children Act 1989 to provide that local authority foster carers may not seek leave of the court to apply for any sanction or order (including a residence order) in respect of a child unless they have the agreement of the local authority or a relative of the child or the child has been living with them for one year instead of three years at as present. This is intended to align the position with the residence requirement for local authority foster carers where they wish to give notice of their intention to adopt a child living with them without needing the consent of the local authority.

Part III

Miscellaneous and Final Provisions

Chapter I - Miscellaneous

Clause 96: National Adoption Register

220.     Subsection (1) of clause 96 enables the Secretary of State to establish and maintain a register to be known as the National Adoption Register. The register will contain details of children who are suitable for adoption and prospective adopters who have been approved to adopt a child. The register will also contain additional prescribed information about such people in respect of events which occur to them after inclusion in the register. This may be used, for example, to record information about the stability of adoptive placements.

221. Under subsection (2) prescribed information held on the register may be given either to an adoption agency which is looking for suitable adoptive parents with whom to place a child or to an adoption agency acting on behalf of approved adoptive parents who wish to adopt a child. Regulations made under subsection (5)(b) will set out the steps which local authorities must take upon receipt of this information.

222. Subsection (3) enables information either held on the register or compiled from information held on the register to be passed to prescribed categories of persons for statistical or research purposes and other prescribed purposes.

223. The register will not be open to public inspection and regulations will make provision about retention of information in the register.

Clause 97: Use of an organisation to establish etc. the register

224.     Clause 97 deals with delegation of the Secretary of State's function under clause 96. Subsection (1) enables the Secretary of State to delegate his function of establishing and maintaining the register to an organisation defined by subsection (4) as being either a public body or a private or voluntary organisation. It also enables that organisation to release information entered in or compiled from information in the register on the Secretary of State's behalf. Where the Secretary of State enters into an agreement with an organisation under subsection (1) he may issue general or special directions in respect of the way in which the organisation operates the register. Subsection (3) enables the Secretary of State to make payments to the organisation in respect of this arrangement. Subsection (5) provides that the organisation is to be referred to as the registration authority in the remaining provisions dealing with the register.

Clause 98: Supply of information to the registration authority

225.     Clause 98 deals with the supply of information to the Secretary of State or the registration authority. Regulations will set out the timing, form and manner in which information must be passed by adoption agencies to the Secretary of State or the registration authority for inclusion in the register. Subsection (3) clarifies that these requirements are subject to the parties to whom the information relates consenting to the proposed use of the information. Where the information relates to a child, regulations will set out whose consent will be required before information may be passed on.

Clause 99: Disclosure of information

226.     Clause 99 provides that information maintained on the register may only be disclosed by the Secretary of State or the registration authority in accordance with the statutory provisions and on any prescribed terms and conditions. However, subsection (2) enables information to be released with the consent of the Secretary of State. It also enables prescribed information to be passed to the National Assembly for Wales. Fees may be levied in respect of release of information. Disclosure of information otherwise than in accordance with the provisions set out in this clause is an offence, punishable by up to three months imprisonment, or a fine not exceeding level 5 on the standard scale, or both.

Clause 100:Supplementary

227.     Clause 100 provides general interpretation in respect of these provisions. Whilst the register will operate in both England and Wales subsection (2) provides that regulations made by the Secretary of State may only be made after consultation with the National Assembly for Wales. Subsection (3) clarifies that any action taken by the Secretary of State or the registration authority which might otherwise be an offence under clauses 76 to 78 is not an offence where the action was authorised or required to be done by virtue of these provisions.

Clause 101: Amendments, transitional provisions, savings and repeals

228.     Clause 101 introduces Schedules 2, 3 and 4. Subsection (1) provides for Schedule 2, which makes minor and consequential amendments to other legislation, to have effect. Subsection (2) makes provision for Schedule 5 (which details transitional provisions and savings) and subsection (3) for Schedule 4 (which details repeals) to have effect.

Chapter II - Final Provisions

Clause 102: Orders, rules and regulations

229.     Clause 102 provides that all orders, other than those containing directions, and regulations made under the Bill are to be made by statutory instrument.

Clause 103: Rules of procedure

230.     Clause 103 enables the Lord Chancellor to make rules to deal generally with all matters of procedure. In particular this clause provides for rules to say where and to whom notice is given of hearings for placement and adoption orders. Subsection (3) provides that this notice must state the date and place of the application and that the person to whom notice is given need not attend the hearing.

231.     Subsection (4) makes provision as to whom that notice must be given. For applications for placement and adoption orders this is every person who can be found whose consent is necessary or could be dispensed with under clauses 18 or 39. In these cases rules may prescribe that where such a person cannot be found another relative must be given such notice.

232.     For applications to vary or revoke a placement order, notice should be given to each party whose consent to the placement order was necessary (or would have been required but for the dispensation provisions); for applications for an adoption order where advance consent has not been given by each parent or guardian, notice should be given to each parent and guardian and for applications for an adoption order where advance consent has been given, notice should be given to each parent or guardian who has not opted out of being provided with such notice.

233.     Where a child is over 12 years of age and the application is for an adoption order he must be notified of the hearing under subsection (4)(d).

Clause 104: Supplementary and consequential provision

234.     Clause 104 enables the appropriate Minister to make such additional provision as he considers necessary in order to give full effect to the provisions of the Bill.

235.     Subsections (2) and (3) apply to any power of the Secretary of State, the Lord Chancellor, the Assembly, or the appropriate Minister to make regulations, orders or rules under this Bill. These subsections enable them to exercise this power to make such additional provision as they consider necessary or expedient.

236. Subsection (3) makes clear that the power in this clause extends to modifying, amending or repealing Schedule 3 to the Bill or any other enactment or instrument.

Clause 105: Offences by bodies corporate and unincorporated bodies

237.     Clause 105 provides that where an offence under the Bill is proved to have been committed with the consent or connivance of, or to be due to the neglect of an officer of a body corporate (or someone purporting to act in such a position) then he as well as the company is guilty of the offence (subsection (1)).

238.     Where an offence under the Bill is committed by an unincorporated body and proved to have been committed with the consent or connivance of, or to be due to the neglect of an officer of that body or any member of the governing body that person is guilty of the offence (subsection (3)).

Clause 106: Making arrangements for the adoption of a child

239.     Clause 106 defines "making arrangements for the adoption of a child". Examples of activities that it includes are the preparation by social workers of home study reports to assess whether prospective adopters are suitable to adopt a child; making contact with birth parents on behalf of prospective adopters; obtaining birth parents' consent to adoption and taking forward agreed matches between children and adoptive families by placing a child for adoption.

240.     Subsection (4) enables the Secretary of State after consultation with the National Assembly for Wales to make an order amending this definition. Under clause 102(3)(a) this power is subject to Parliamentary scrutiny under the affirmative procedure.

Clause 108: Devolution: Wales

241.     Clause 108 provides that the reference to the Children Act 1989 in Schedule 1 of the National Assembly for Wales (Transfer of Functions ) Order 1999 is to be treated as referring to the Children Act 1989 as amended by this Bill.

Clause 109: Expenses

242.     Clause 109 provides for expenditure relating to the Act to be paid out of money provided by Parliament.

Clause 111: Commencement

243. Clause 111 provides that this Bill, with the exception of Part III Chapter II is to come into force on a day that the Secretary of State appoints by order.

Clause 112: Extent

244. Clause 112 defines the extent of the Bill. The whole Bill applies to England and Wales. Clauses 33(7) to (9) (provisions on recovery orders) and the provisions in this Chapter also extend also to Scotland and Northern Ireland. Amendments or repeals of any enactments extending to Scotland or Northern Ireland will also extend to those countries.

Schedule 1: Registration of Adoption

245. Paragraph 1 of Schedule 1 makes provision for the registration of certain adoptions in the Adopted Children Register in accordance with a direction in the adoption order. It deals with the marking of entries in the registers of live-births relating to a child who has been adopted and for marking any entries in the Adopted Children Register relating to a child who has been re-adopted.

246. Paragraph 2 makes provision for registration of adoption orders made in Scotland, Northern Ireland, the Isle of Man and the Channel Islands in the registers of live-births. It also deals with marking any entry in the Adopted Children Register relating to a person who has been re-adopted in one of these jurisdictions and for cancellation of any such marking where an order has been quashed, revoked or a successful appeal brought.

247. Paragraph 3 deals with registration of other adoptions. It provides for registration of overseas and Convention adoptions which meet specified requirements. These are referred to as "registrable foreign adoptions".

248. Paragraph 4 makes provision for the amendment and cancellation of entries in the Adopted Children Register and for the cancellation of markings in that register and the registers of live-births. Paragraphs 5 and 6 deal with re-registration of birth and cancellation in registers on legitimisation.

PUBLIC SECTOR COST IMPLICATIONS

249.     The Bill is not expected to place a significant new financial burden on local authorities. The financial implications of the Bill lie mainly with the new proposals for an independent review mechanism, changes to the legal process of placing a child for adoption, a National Adoption Register, the special guardianship status and a new framework for post-adoption support.

250.     Clauses 3 and 4 set out the duty on local authorities to make arrangements to maintain an adoption service, including adoption support services, and the new right for adoptive families to request an assessment of their needs in relation to adoption support. Local authorities currently provide adoption support, but provision is patchy. The range of adoption support services that local authorities will need to provide on a consistent basis will be set out in the new national framework for adoption support which the Government will be developing and consulting on over the coming year. Both the implementation of the framework and the introduction of the new right to an assessment will have resource consequences for local authorities. The Government has allocated £66.5m of its Spending Review settlement over the period 2001/2-2003/4 to support the implementation of the White Paper programme, and anticipates that a substantial portion of this will be used by local authorities to invest in developing adoption support services according to the new framework.

251.     Clause 9 provides for the appropriate Minister to establish an independent review mechanism in relation to the assessment of prospective adopters. This is not expected to place a significant new financial burden on local authorities. Local authorities will be required to offer prospective adopters an independent hearing by the review mechanism as an alternative to having their case referred back to the agency's own panel. The cost of reimbursing the body running the review mechanism for the cost of convening a review panel will therefore be incurred instead of the cost of holding a second hearing of their own panel. The Secretary of State will meet the cost of establishing the new body from the Spending Review allocation.

252.     Clauses 15 to 33 concern new provisions about placement for adoption. Local authorities will apply to courts for placement orders in prescribed circumstances. Placement orders will be heard alongside care orders in many cases, and will be substituted for existing freeing order cases. There may be several hundred additional cases each year. This increase in the local authority workload should be compensated to a considerable extent by the reduction in the numbers of contested final adoption hearings. The Department has taken account of the likely effect of these provisions in allocating the Spending Review settlement for adoption.

253.     Clauses 96 to 100 enable the Secretary of State to establish a National Adoption Register for England and Wales. The Secretary of State and the National Assembly for Wales will meet the cost of establishing the Register. Resources are available to meet this cost as the likely cost of the National Adoption Register was taken into account in allocating money from the Spending Review settlement to support the policies outlined in the Adoption White Paper. Local authorities will be expected to absorb the resource consequences of using the register, including any fees that may be charged for matches, within the enhanced level of funding provided by the Spending Review settlement. On a national basis it is estimated that details of around 5000 children and 3500 adoptive families may be placed on the Register each year. The additional workload on an individual local authority basis should not be great.

254.     The provisions for special guardianship are set out in Clause 94. Local Authorities will have a new function of preparing reports for the court on the circumstances connected to each application for special guardianship. The Bill will include provisions to enable local authorities to provide support to special guardianship placements to help them to succeed, particularly where the child has been looked after by a local authority. The detail of these support arrangements will be developed subject to consultation and the resource requirements will flow from this. Broadly the resource implications will depend on the volume of special guardianship placements, and can be expected to be offset by the savings yielded by the child no longer being looked after. The Government is providing £885m over 5 years from 1998 through the Quality Protects programme to support local authority investment in services for children in need.

255.     The Bill also contains new provisions for case management and new options for permanence available to the courts (through the new special guardianship order). More effective case management will be resource intensive for court staff and the judiciary but should result in reduced delay for children. Specially trained staff and judiciary should deal with work more quickly and more efficiently.

SUMMARY OF REGULATORY APPRAISAL

256.     The Bill will not create any additional costs for business and the impact on the voluntary sector will be restricted to voluntary adoption agencies (VAAs). The main impact on VAAs will be produced by three of the new policy areas - the National Adoption Register, the independent review mechanism for prospective adopters and measures to promote consistency of access to adoption agency and court records. The Regulatory Impact Assessment (which can be obtained in the library of the House or on the Department of Health website at www.doh.gov.uk/adoption) sets out the impact of each in more detail. However, none of these measures will place a significant additional burden on voluntary adoption agencies.

EUROPEAN CONVENTION ON HUMAN RIGHTS

257.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of the Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the convention rights (as defined by Section 1 of that Act). Mr Secretary Milburn has made the following statement:

"In my view the provisions of the Adoption and Children Bill are compatible with the Convention rights."

 
 
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Prepared: 21 March 2001