House of Commons - Explanatory Note
Adoption and Children Bill - continued          House of Commons

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Clause 5: Local authority plans for adoption services

38.     Clause 5 imposes a duty upon local authorities to prepare and publish a plan for the provision of adoption services in their area. Under subsection (2) the plan must contain information of a description prescribed in regulations. Subsection (5) enables the appropriate Minister (defined in clause 129) to direct the form and manner in which, and the time at which, the plan is to be published by a local authority. The appropriate Minister may also direct who the local authority is to consult in drawing up the plan. A direction may be given by the appropriate Minister under subsection (4)(a) that the plan be included in a document specified in the direction, for example a more general plan for the provision of services relating to children within the local authority's area. The intention is as far as possible to incorporate the adoption plan within existing planning mechanisms for children's services, but the provisions provide flexibility to allow for the preparation of separate plans should they be required. There is a power to make regulations relating to the review, modification and substitution of plans (subsection (3)). Subsection (7) provides that the requirements in subsections (2) to (5) apply in relation to a modified or substituted plan as they apply to the initial plan produced under subsection (1).

39.     A direction given by the appropriate Minister may modify the requirements in the regulations concerning the information to be included in the plan (subsection (4)(b)). Such directions may be given to a particular local authority or to a class of local authorities. It is envisaged that these powers might, for example, be used to facilitate the production of a tailored plan where authorities are working with the Adoption and Permanence Taskforce. Directions other than those given under subsection (4)(b) may be given to a particular local authority, a class of local authorities or to local authorities generally.

Clause 6: Arrangements on cancellation of registration

40.     Clause 6 empowers the appropriate Minister (defined in clause 129), where an adoption society has ceased to be registered under Part 2 of the Care Standards Act 2000, to direct that society to make appropriate arrangements for the transfer of its functions relating to children.

Clause 7: Inactive or defunct adoption societies etc.

41.     Clause 7 empowers the appropriate Minister (defined in clause 129) to direct the relevant local authority to take action, where a registered adoption society is inactive or defunct or has ceased to be registered under Part 2 of the Care Standards Act 2000, and it has not made such arrangements for the transfer of its functions relating to children as are required. It also enables the appropriate Minister to charge the society for the expenses necessarily incurred by him or on his behalf as a result of its failure to make appropriate arrangements.

Clause 8: Adoption support agencies

42.     Clause 8 amends the Care Standards Act 2000 to make new provision for the registration of adoption support agencies by the registration authority (the National Care Standards Commission in England and the National Assembly in Wales) under Part 2 of that Act. The purpose of these new provisions is to allow agencies other than adoption agencies to provide support services in connection with adoption (for example, specialist birth records counselling, and other services to be set out in the new national framework for adoption support) while ensuring that organisations operating in this sector are properly regulated. An adoption support agency may be voluntary or profit-making, and both organisations and sole practitioners providing adoption support services will be required to apply for registration as an adoption support agency. Registration will ensure that adoption support services are provided to an appropriately high standard by staff with the necessary training and expertise. Registered adoption support agencies will be able to provide birth records counselling under paragraph (2)(1)(b) of Schedule 2 and counselling in respect of information disclosed by adoption agencies under clause 60. Carrying on or managing an adoption support agency without being registered will be an offence under section 11 of the Care Standards Act.

43.     The providers of adoption support services listed in subsection (2) are not included in the definition of an adoption support agency. These providers are not to be registered under Part 2 of the Care Standards Act as they are already regulated through other means. Subsection (2)(f) provides a power to make regulations to add to this list.

Clause 9: General power to regulate adoption etc. agencies

44.     Clause 9 enables regulations to be made in respect of local authorities, voluntary adoption agencies and adoption support agencies. Subsection (1) provides a general power to make regulations for any purpose relating to the exercise by local authorities and voluntary adoption agencies of their functions in relation to adoption, and by adoption support agencies of their functions in relation to the provision of adoption support services. Subsection (2) provides that the power to make regulations under clause 9 is not limited by the specific powers in clauses 10 to 12 and 53 to 62, nor by any other powers. Subsection (3) enables regulations to be made under this provision to provide that a person who breaches those regulations commits an offence and is liable on summary conviction (prosecuted in the Magistrates' Court) to a fine not exceeding level 5 on the standard scale*. Subsection (4) defines "voluntary adoption agency" for the purpose of clauses 9 and 10.

* There are five levels to the standard scale for fines, as defined in section 75 of the Criminal Justice Act 1982. A court may impose a fine up to the maximum for the prescribed level. Currently the levels are: level 1 = £200; level 2 = £500; level 3 = £1,000; level 4 = £2,500 and level 5 = £5,000.

Clause 10: Management etc. of agencies

45.     Clause 10 amplifies the general regulation-making power in clause 9 in relation to the management and general operation of adoption agencies and adoption support agencies. Subsection (1) provides for regulations to be made in respect of local authorities, voluntary adoption agencies and adoption support agencies to ensure that they are suitably managed and staffed, that their premises are fit for the purpose and that adequate arrangements are made for the keeping of information.

46.     Subsection (2) provides that regulations may be made under subsection (1) prohibiting a person's appointment to a prescribed post at an adoption agency or an adoption support agency unless they are on a register of social care workers maintained under section 56 of the Care Standards Act 2000.

47.     The powers in subsection (3) apply only to voluntary adoption agencies and adoption support agencies. In the case of local authorities such powers are either inappropriate or unnecessary because any child placed by a local authority for adoption is to be treated as a looked after child. Regulations may be made to ensure that voluntary adoption agencies are managed, and that adoption support agencies are carried on, by persons who are fit to do so, and for the health and welfare of children placed by voluntary adoption agencies (for example children waiting to be adopted who are placed with private foster parents) to be adequately protected. Subsection (3) also provides that regulations may be made imposing requirements regarding the financial position of the agency and the appointment of a manager in prescribed circumstances.

48.     Subsection (4) sets out that regulations may be made concerning the conduct of voluntary adoption agencies and adoption support agencies, including the provision of facilities and services, the keeping of accounts, notification of events occurring in the agency's premises, changes in the person managing the agency and changes in its ownership, arrangements for running the agency during periods when the manager is absent, and arrangements for dealing with complaints.

Clause 11: Fees

49.     Clause 11 amplifies the powers in clause 9 in relation to the charging and payment of fees. Subsection (1) enables the appropriate Minister to make regulations providing for the fees which may be charged by adoption agencies for the provision of services to those providing facilities as part of the Adoption Service (including the Adoption Services in Scotland and Northern Ireland), and for the fees to be paid by adoption agencies to those providing services on their behalf. This power may, for example, be used to make regulations to underpin or make changes to the "inter-agency fee" (a payment currently made by an adoption agency to another adoption agency which has recruited an adoptive family on its behalf).

50.     Subsection (2) enables the appropriate Minister to make regulations prescribing the fees which may be charged by local authorities in respect of prescribed facilities of the Adoption Service, provided that the conditions in subsection (3) are met. The conditions are that the facilities must be provided in connection with the adoption of a child brought into the United Kingdom for the purpose of adopting the child, or in connection with a Convention adoption, an overseas adoption or an adoption effected under the law of a country or territory outside the British Islands (subsection (3)).

51.     It is intended that any charges provided for by these regulations will contribute towards the local authority's costs in providing information, preparing and assessing prospective adopters, obtaining medical reports and police checks and preparing post-placement and post-adoption reports in respect of intercountry adoption cases. They will not include any element of profit.

Clause 12: Independent review of determinations

52.     Clause 12 provides for the establishment of a review procedure in respect of qualifying determinations made by adoption agencies. A person in respect of whom a determination specified in regulations has been made may apply to a panel established by the appropriate Minister for a review of the relevant determination. It is intended to use this provision to give effect to the White Paper commitment to provide prospective adopters with a right to request a referral to a panel run by an independent organisation, where an adoption agency indicates that it is minded to turn down their application to adopt.

53.      It is also intended that the independent review mechanism will review determinations made by adoption agencies concerning the disclosure of protected information (defined in clause 54) held by the agency where, under the Bill, the agency have discretion.

54.     Regulations may be made under subsection (3) dealing with the duties and powers of a panel (including the power to request a contribution towards the cost of a review from the adoption agency which made the original determination), administration and procedures, appointment of panel members, payment of expenses, the duties of adoption agencies in connection with reviews and the monitoring of reviews.

55.     Subsection (4) enables the appropriate Minister to delegate functions in relation to the panel to an organisation to perform on his behalf. "Organisation" is defined as including a public body and a private or voluntary organisation. Subsection (6) enables the appropriate Minister to make payments to such an organisation and under subsection (5) the organisation must perform its functions in accordance with any general or special directions which the appropriate Minister may give.

Clause 13: Information concerning adoption

56.     Clause 13 requires adoption agencies and courts to give the appropriate Minister (defined in clause 129) statistical or other general information relating to adoption as may be required. Information must be provided at the time and in the form directed by the appropriate Minister. Subsection (5) empowers the appropriate Minister to publish abstracts of the particulars sent to him.

Clause 14: Default power of appropriate Minister

57.     Clause 14 provides default powers to the appropriate Minister (defined in clause 129). These powers are exercisable where a local authority have failed, without reasonable excuse, to comply with any of the duties imposed by the Bill. The appropriate Minister may make an order containing directions to ensure that the duty is complied with within the period specified in the order. Any directions issued are enforceable by a mandatory order.

Clause 15: Inspection of premises etc.

58.     Clause 15 provides for a person authorised by the appropriate Minister (defined in clause 129) to inspect any premises where a child is living who has been placed by an adoption agency or in respect of whom a notice of intention to adopt has been given under clause 43. An officer of a local authority may also be authorised with the consent of the authority (subsection (4)). Subsection (5) enables a person carrying out an inspection of premises under subsection (1) to visit the child there and examine the state of the premises and the treatment of the child. Subsection (2) enables the appropriate Minister to require an adoption agency to give him information and access to records (in whatever form) relating to the discharge of its functions in relation to adoption. Subsection (6) provides for the inspection of any computer being used in connection with an adoption agency's records.

59.     Subsection (7) gives any person authorised to carry out an inspection under this clause a right of entry to premises at any reasonable time and a right to request reasonable assistance. He must, if required, produce documentation showing his authority to carry out the inspection. Obstructing a person authorised to inspect premises or records is an offence, punishable on summary conviction by a fine up to level 3 on the standard scale (see subsection (9)).

Clause 16: Inquiries

60.     Clause 16 provides that the appropriate Minister (defined in clause 129) may cause an inquiry to be held into any matter connected with the functions of an adoption agency. Subsection (2) enables him to direct, before the inquiry begins, that it is to be held in private. In the absence of a direction from the appropriate Minister, the person holding the inquiry may decide whether to hold it, or any part of it, in private. The provisions in section 250(2) to (5) of the Local Government Act 1972 are to apply. This clause follows the model of section 81 of the Children Act 1989, which also provides for inquiries.

Chapter 3 - Placement for Adoption and Adoption Orders

61.     Clauses 17 to 28 introduce new provisions for the placement of children for adoption. An adoption agency may only place a child for adoption with the consent of the parent or guardian (referred to in these notes as the 'parent') or under an order made by the court authorising a local authority to place a child with any prospective adopters chosen by them ("a placement order"). Provision is made for who is to have parental responsibility for the child and the other consequences of placement with consent and placement orders.

62.     The placement provisions build on and implement the recommendations of the Adoption Law Review. The intention is to ensure decisions about whether adoption is the right option for the child, whether the birth parents consent and, if not, whether parental consent should be dispensed with are taken earlier in the adoption process than at present, with court involvement where necessary. The intention is to provide greater certainty and stability for children by dealing with consent to placement for adoption before they have been placed (at present this issue is often not addressed until the final adoption order hearing); to minimise the uncertainty for prospective adopters, who under the current system possibly face a contested court hearing at the adoption order stage; and to reduce the extent to which birth families are faced with a 'fait accompli' at the final adoption hearing (as they may be under the current system, where their child has not been freed for adoption but has been placed with an adoptive family for some time before the application for an adoption order is made).

63.     A flowchart summarising the placement process is attached at Annex A.

Clause 17: Placement for adoption by agencies

64.     Clause 17 provides that an adoption agency may place a child for adoption with prospective adopters where the parent of the child has consented to the placement or, in the case of a local authority, where it has obtained a placement order. Where a local authority is authorised to place a child for adoption the child is treated as a looked after child for the purposes of the Children Act 1989. This applies whether or not the child is placed for adoption (subsection (2)). Clause 51 enables regulations to be made modifying the provisions in the Children Act 1989 which relate to looked after children, when these children are authorised to be placed for adoption (see paragraph 133).

65.     Under subsection (4) placement has been given an extended meaning under the Bill covering both placing a child with prospective adopters and, where the child is already placed with people for other purposes (for example with foster carers), leaving the child with them as approved prospective adopters. It will be open to local authority foster parents to seek formal approval from the local authority as prospective adopters in respect of a child being fostered by them. If they are approved as prospective adopters and the agency leave the child with them as prospective adopters, the placement will be an agency placement and there will be no need for them to give formal notice under clause 43. If the agency does not approve them as prospective adopters, local authority foster carers can independently give notice of intention to apply to adopt the child as a non-agency case, providing the condition in clause 41(4) is met.

Clause 18: Placing children with parental consent

66.     Clause 18 makes provision for placing children with parental consent. It allows an adoption agency to place a child for adoption where it is satisfied each parent has given consent to placement and that consent has not been withdrawn. Placement with consent may be with prospective adopters identified in the consent or with any prospective adopters who may be chosen by the agency (subsection (1)). Consent to placement with prospective adopters identified in the consent may be combined with consent to the child being subsequently placed for adoption with any prospective adopters who may be chosen by the agency (subsection (2)). Consent can be withdrawn at any point before an application for the adoption order is made.

67.     Subsection (3) provides that where an application as a result of which a care order under the Children Act 1989 may be made and that application is pending, the provisions relating to placement of children with parental consent do not apply. Where a local authority is satisfied such a child should be adopted it must apply for a placement order under clause 21(2). Where a child is placed with prospective adopters and consent is then withdrawn the child continues to be treated as placed for adoption until the child is returned to the parents or any placement order application is determined (subsection 4). Clause 18 is subject to the provisions in clause 50 relating to what is meant by consent. Consent will be in a prescribed form and to ensure it is properly given in full understanding of what it involves it is intended that it will be witnessed by an officer of the Children and Family Court Advisory and Support Service, provided for by rules made under clause 126.

Clause 19: Advance consent to adoption

68.     Clause 19 enables a parent who consents to his child being placed for adoption by an adoption agency to give consent at the same time to the making of a future adoption order ('advance consent'). As with placement with consent, advance consent may be to adoption by prospective adopters identified in the consent or by any prospective adopters who may be chosen by the agency. Subsection (3) provides that consent may be withdrawn. It must be withdrawn in the form prescribed (see clause 51(7)). Subsection (4) enables a parent who gives advance consent to adoption to give notice to the agency that he wishes to be informed when an application for an adoption order is made, and to withdraw any such notice. This provision allows a parent who wishes to relinquish their child for adoption to do so, and to provide that they need have no further involvement in the adoption proceedings.

69.     Subsection (6) provides that this section is subject to the provisions in clause 50 relating to what is meant by consent.

Clause 20: Placement orders

70.     Clause 20 defines a placement order. It is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority (subsection (1)). Only local authorities are able to apply for placement orders. Subsection (2) provides that the court may not make a placement order unless the child is already subject to a care order or it has the power to make a care order under section 31(2) of the Children Act 1989. In order to be able to make a care order (and therefore a placement order) the court must first be satisfied that the child concerned is suffering, or likely to suffer, significant harm, and that this is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him, or the child is beyond parental control.

71.     Linking the making of placement orders to these provisions in the Children Act is intended to deliver on the Government's undertaking to align adoption law with the Children Act. The same threshold for compulsory intervention in family life is to apply where a local authority seeks authority to place a child for adoption without parental consent as applies where an authority seeks to take a child into care under a care order. In placement order cases, where the court is satisfied that the 'significant harm' threshold is met, it will then consider whether a placement order should be made. The clause 1 provisions will apply: the child's welfare will be the paramount consideration, the court will apply the welfare checklist set out in clause 1(4), the court will have to consider its full range of powers, and will only make the order if it is better for the child than not to do so.

72.     Subsection (3) provides that the court may only make a placement order if it is satisfied that the parent has consented to the child being placed for adoption with any prospective adopters who may be chosen by the agency and has not withdrawn that consent or that the parent's consent should be dispensed with. The grounds for dispensing with consent are set out in clause 50(2). A placement order will continue in force until it is revoked, an adoption order is made in respect of the child or the child marries or reaches 18 (subsection (4)).

Clause 21: Applications for placement orders

73.     Clause 21 sets out when a local authority must apply for a placement order. An authority must apply for a placement order when the child is placed for adoption or is accommodated by a local authority, the parent does not consent to placement for adoption and the authority consider the threshold criteria in section 31(2) of the Children Act 1989 are met and are satisfied that the child should be placed for adoption (subsection (1)). This might occur for example where the parent has withdrawn consent to placement but the authority remains of the view the child should be adopted.

74.     Where an application is pending on which a care order under the Children Act 1989 might be made, or the child is subject to a care order but the parent does not consent to the placement of a child for adoption, and the local authority are satisfied that the child should be placed for adoption, they must apply to the court for a placement order (subsection (2)). If the child is subject to a care order and the parent or guardian is prepared to consent to the placement of the child for adoption, the authority have a discretion as to whether to apply for a placement order (subsection (3)). Alternatively, they could decide to place the child with parental consent under clause 18.

75.     Subsection (4) provides that where an application for a placement order is pending, the child is to be treated as a looked after child for the purposes of the Children Act 1989 until the application is determined. Subsection (6) enables the court where the application for a placement order is pending and no interim care order has been made to give directions for the child to undergo medical, psychiatric or other assessment.

76.     The application for a placement order is to be made by the appropriate local authority as defined in subsection (7).

Clause 22: Varying placement orders

77.     Clause 22 provides that the court can vary a placement order to substitute another local authority for the authority authorised to place the child for adoption but the application has to be made by both authorities.

Clause 23: Revoking placement orders

78.     Clause 23 makes provision for the revocation of placement orders. A local authority may apply to revoke a placement order at any time. Any other person, for example the parent, may apply for the revocation of a placement order with the leave of the court, and if the child is not yet placed for adoption by the authority and a period of one year has elapsed since the placement order was made. Leave cannot be given by the court unless it is satisfied that there has been a change in circumstances since the order was made.

Clause 24: Parental responsibility

79.     Clause 24 makes provision for who is to have parental responsibility where an agency is authorised to place a child for adoption under clause 18 or where a placement order is in force. Parental responsibility for the child is given to the agency (subsection (2)) and while the child is placed with prospective adopters, parental responsibility is given to them (subsection (3)).

80.     Under subsection (4) it is for the agency to determine the extent to which the parental responsibility of any parent or of prospective adopters is to be restricted.

 
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Prepared: 19 October 2001