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

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Clause 114: Offence of breaching restrictions under section 113

255.     Clause 114 sets out that it is an offence to breach clause 113(1). Subsection (2) provides a defence for all types of publication and all types of distribution, except distribution by electronic means. Subsection (3) provides a defence where a person is charged with distributing an advertisement or information by electronic means. Subsection (4) provides for the penalty on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.

Clauses 113 and 114: compatibility with the Electronic Commerce Directive

256.     The Government is currently conducting a consultation exercise on the implementation of the E-Commerce Directive, which is required to be implemented before 17th January 2001. The Directive aims to remove obstacles that act as a barrier to the growth and competitiveness of e-commerce within the European Community. It places an obligation on each Member State to ensure that providers of information society services (such as those of Internet Service Providers) established on its territory comply with its national law. Generally, each Member State will be prohibited from restricting the freedom to provide information society services from another Member State. The Directive also limits the liability of intermediaries (e.g. ISPs) to circumstances in which there is actual knowledge of illegal activity and corrective action is not taken expeditiously.

257.     Clauses 113 and 114 cover both offline (or traditional) advertising and online (or electronic) advertising. In the light of responses to the consultation exercise, it is anticipated that regulations implementing the Directive will be laid before Parliament. This is likely to be concurrent with the passage of the Bill. Consequently, as currently drafted, these provisions should be taken neither as final nor as prejudging the outcome of the consultation. Following completion of the consultation, the Government will bring forward the necessary amendments to bring these clauses into line with implementation of the Directive.

Clause 115: Adoption and Children Act Register

258.     Subsection (1) of clause 115 enables the Secretary of State to establish and maintain a register to be known as the Adoption and Children Act Register. The register will contain details of children who are suitable for adoption and prospective adopters who have been approved to adopt a child. This information will be used to suggest adoptive families for children in cases where a local match is not suitable for the child, or cannot be found within an agreed period of time. The register will also contain additional prescribed information about such people in respect of events occurring to them after their inclusion in the register (see subsection (1)(b)). This regulation-making power may be used, for example, to enable the register to record information about the stability of adoptive placements.

259.     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 (6) will set out the steps which adoption agencies must take upon receipt of this information.

260.     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.

261.     The register will not be open to public inspection or search and regulations will make provision about retention of information in the register. Information will be held on the Register in any form the Secretary of State considers appropriate, but is most likely to be held electronically.

Clause 116: Use of an organisation to establish etc. the register

262.     Clause 116 deals with delegation of the Secretary of State's function under clause 115. Subsection (1) enables the Secretary of State, with the agreement of the National Assembly for Wales, to delegate his function of establishing and maintaining the register to an organisation defined by subsection (5) 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 entered 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, with the Assembly's agreement, issue general or special directions in respect of the way in which the organisation operates the register (see subsection (4)). Subsection (2) enables the Secretary of State to make payments to the organisation in respect of this arrangement.

263.     Subsection (3) provides a power to make regulations to enable an organisation maintaining the register on the Secretary of State's behalf to act as an agent for the payment or receipt of sums payable by adoption agencies to other adoption agencies. This could be used, for example, to enable the organisation to manage the payment of "inter-agency fees" (defined in paragraph 49 above) between adoption agencies in respect of matches suggested by the register. Subsection (6) provides that, where the Secretary of State delegates his function to such an organisation under subsection (1), the references to the registration organisation in the remaining provisions dealing with the register are to that organisation.

Clause 117: Supply of information for the register

264.     Clause 117 deals with the supply of information to the Secretary of State or the registration organisation for entry in the register. Regulations will set out the type of information which must be passed by adoption agencies to the Secretary of State or the registration organisation for inclusion in the register, and the time, form and manner in which that information must be given. Subsection (3) provides that regulations may require adoption agencies to pay a fee to the Secretary of State or the registration organisation in respect of information to be entered on the register. Such a fee would contribute towards the administrative costs of placing information on the register and would not include any element of profit. Subsection (4) clarifies that these requirements are subject to the parties to whom the information relates consenting to inclusion of the information on the register. Where the information relates to a child, regulations will set out who may consent to the sharing of the information on the child's behalf.

Clause 118: Disclosure of information

265.     Clause 118 provides that information maintained on the register may only be disclosed by the Secretary of State or the registration organisation in accordance with the statutory provisions and on any prescribed terms and conditions. However, subsection (2) enables any information to be released with the consent of the Secretary of State. It also enables any prescribed information to be passed to the National Assembly for Wales. Subsection (4) enables fees to be charged in respect of information given to adoption agencies under clause 115(2) or in respect of information given to prescribed categories of persons for statistical or research purposes, or other prescribed purposes, under clause 115(3). Disclosure of information otherwise than in accordance with the provisions set out in this clause is an offence, punishable on summary conviction by up to three months' imprisonment, or a fine not exceeding level 5 on the standard scale, or both.

Clause 119: Supplementary

266.     Clause 119 provides general interpretation in respect of the provisions in clauses 115 to 118. Subsection (1)(c) provides that regulations under this group of clauses are to be made jointly by the Secretary of State and 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 89 to 91 is not an offence where the action was authorised or required to be done by virtue of these provisions. Subsection (4) enables regulations to be made applying any of the provisions in clauses 115 to 118 with or without modification for the purpose of finding persons with whom children may be placed for purposes other than adoption. This provision may be used to extend the remit of the register to cover children needing other types of permanent placements, such as special guardianship.

Clause 120: Scottish restriction on bringing children into United Kingdom

267.     Clause 120 amends section 50A of the Adoption (Scotland) Act 1978 to impose restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the UK with the intention of adopting the child in the UK, unless the person complies with prescribed requirements and meets prescribed conditions. It also makes it a criminal offence for a British resident to bring or cause someone else to bring a child habitually resident outside the British Islands who he has adopted within the last six months into the UK, unless he complies with prescribed requirements and meets prescribed conditions. A person would be liable on summary conviction to up to six months' imprisonment or a fine not exceeding the statutory maximum (currently £5,000), or both, or, in the event of the case being referred to the Crown court, to up to twelve months' imprisonment or an unlimited fine, or both.

268.     It is intended that regulations will require the British resident to be assessed and approved as suitable to adopt by a UK adoption agency prior to bringing a child into the UK.

Clause 121: Adoption and fostering: criminal records

269.     The new Criminal Records Bureau (CRB) is being established under the Police Act 1997 to provide (amongst other things) for a system for vetting those who work with children, and a "one stop shop" to simplify and speed up that process.

270.     The intention is that criminal record checks and enhanced criminal record checks should be available through the CRB on both prospective foster and adoptive parents and other adults in the same household as them. Such checks for the purpose of determining the suitability of persons to act as foster parents and adoptive parents are already specifically provided for under sections 113 and 115 of the Police Act 1997.

271.     Criminal record certificates cover both spent and unspent convictions, and cautions, reprimands and warnings. Enhanced criminal record certificates also include "soft information" from local police records which the chief officer of police considers relevant. This would include relevant matters which did not lead to a conviction. The process would also include a check of lists maintained by the Department of Health and the Department for Education and Skills of persons considered unsuitable to work with children, under the "one-stop shop" arrangement under the Protection of Children Act 1999.

272.     Subsection (1) provides that Part 5 of the Police Act 1997, which covers certificates of criminal records, is to be amended. Subsections (2) and (3) amend sections 113 and 115 of the Police Act to make it absolutely clear that adoptive parents, foster parents and other adults in the same household are eligible for checks under sections 113 and 115 of the Police Act 1997.

Clause 122: Payment of grants in connection with welfare services

273.     Clause 122 amends section 93 of the Local Government Act 2000, which enables the Secretary of State to pay grants to local authorities for welfare services. The provisions in clause 122 enable grants to be paid contributing to the provision of welfare services, or in connection with welfare services, as well as for their direct provision.

Clause 123: Extension of the Convention to British Overseas Territories

274.     Clause 123 enables provisions giving effect to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption to be extended to any British Overseas Territory by Order in Council.

275.     Article 45 of the Hague Convention allows the Convention to extend to British Overseas Territories at the same time as the UK ratifies the Convention or later. For the Convention to be extended to any territory that territory must have the necessary legislation implementing the Convention in place. Clause 123 allows an Order in Council to make any provision in respect of any British Overseas Territory that would put in place the legislation necessary to allow the Convention to be extended to that territory. In particular, subsection (2) permits provisions corresponding to the Adoption (Intercountry Aspects) Act 1999 and regulations made under section 1 of that Act (which will be used to give effect to the Convention in England, Wales and Scotland) to be made in respect of any British Overseas Territory.

276.     Subsection (3) enables an Order in Council to be made to ensure that where the Convention has been extended to any British Overseas Territory, a child adopted overseas under a Convention Adoption Order may acquire automatic British Citizenship. British Citizenship will be automatically granted if at least one of the adopters is a British Citizen and, in the case of a joint adoption, both adopters are habitually resident in the UK or the relevant British Overseas Territory.

Clause 124: Amendments, transitional provisions, savings and repeals

277.     Clause 124 introduces Schedules 3, 4 and 5. Subsection (1) provides for Schedule 3, which makes minor and consequential amendments to other legislation, to have effect. Subsection (2) makes provision for Schedule 4, which details transitional provisions and savings, and subsection (3) for Schedule 5, which details repeals, to have effect.

Chapter 2 - Final Provisions

Clause 125: Orders, rules and regulations

278.     Clause 125 provides that all orders (other than a default order made under clause 14 and a commencement order made under clause 133) and regulations made under the Bill are to be made by statutory instrument. Any statutory instruments made under clauses 88(6), 90 or 113(6) (respectively amendments to list of prohibited steps, restrictions on reports and amendments to restrictions on advertising in light of advances in technology) or other instruments which amend primary legislation are subject to the affirmative procedure.

Clause 126: Rules of procedure

279.     Clause 126 enables the Lord Chancellor to make rules to deal generally with all matters of procedure. It is intended that the child shall automatically be a party to proceedings in placement order cases, and shall be able to apply to the court for leave to be made a party to adoption proceedings. The clause provides in particular 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.

280.     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 20 or 45. In these cases rules may prescribe that where such a person cannot be found another relative must be given such notice.

281.     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 been given, notice should be given to each parent or guardian who has stated he wishes to be provided with such notice.

Clause 127: Supplementary and consequential provision

282.     Clause 127 enables the appropriate Minister to make such supplementary, incidental or consequential provision as he considers necessary in order to give full effect to the provisions of the Bill.

283.     Subsections (2) and (3) apply to any power of the Secretary of State, the Lord Chancellor or the Assembly to make regulations, orders or rules under this Bill. These subsections enable them to make any supplementary, incidental, consequential or transitional provision as they consider necessary or expedient in the exercise of those powers.

284.     Subsection (4) makes clear that the power in this clause extends to modifying Schedule 4 to the Bill or amending or repealing any enactment or instrument.

Clause 128: Offences by bodies corporate and unincorporated bodies

285.     Clause 128 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 corporate body is guilty of the offence (subsection (1)).

286.     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 also guilty of the offence (subsection (3)).

Clause 130: Devolution: Wales

287.     Clause 130 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 131: Expenses

288.     Clause 131 provides for expenditure relating to the Act to be paid out of money provided by Parliament.

Clause 133: Commencement

289.     Clause 133 provides that this Bill, with the exception of Chapter 2 of Part 3 and the provisions mentioned in subsections (3) and (4), is to come into force on a day that the Secretary of State, following consultation with the National Assembly for Wales, appoints by order. The provisions mentioned in subsection (3) are to come into force on such day as the Scottish Ministers may by order appoint. The provisions mentioned in subsection (4) are to come into force on such day as the appropriate Minister may appoint by order.

Clause 134: Extent

290.     Clause 134 defines the extent of the Bill. The whole Bill applies to England and Wales. Clauses 40(5) to (9), 60(2) to (5), 113 and 114, and the whole of Chapter 2 of Part 3 except for clauses 126, 127(1) and 130, 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 Adoptions

291.     Paragraph 1 of Schedule 1 makes provision for an entry 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.

292.     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.

293.     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".

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

Schedule 2: Disclosure of Birth Records by Registrar General

295.     In the case of adoptions taking place before the provisions for the disclosure of information under clauses 53 to 62 are enacted, Schedule 2 places a duty on the Registrar General to supply an adopted person, on application and subject to certain conditions including payment of a fee, with information to enable him to obtain a certified copy of the record of his birth.

296.     Paragraph 2 provides that before the Registrar General gives any information to an applicant, the Registrar General must inform the applicant that counselling services are available to the applicant, and where they may be obtained from. If the applicant chooses to receive counselling, the Registrar General must send to the person or body providing the counselling the information to which the applicant is entitled.

297.     Under paragraph 2 counselling is available at the General Register Office, or from a local authority in England, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 in Scotland, a Board in Northern Ireland, a registered adoption society or an adoption society which is approved under section 3 of the Adoption (Scotland) Act 1978 or registered under Article 4 of the Adoption (Northern Ireland) Order 1987, or a registered adoption support agency. The persons or bodies listed in paragraph 3 are to be obliged to provide counselling if asked by the adopted person.

298.     Paragraph 4(1) provides that where a person applies for information under this Schedule and was adopted before 12th November 1975, the Registrar General must not give the information to the applicant unless the applicant has attended an interview with a counsellor arranged by a person or body from whom counselling services are available. Paragraph 4(2) provides that where the Registrar General is prevented by paragraph 4(1) from giving information to a person who is not living in the United Kingdom, he may give the information to any body which he is satisfied is suitable to provide counselling to that person, and which has notified the Registrar General that it is prepared to provide such counselling.

PUBLIC SECTOR COST IMPLICATIONS

299.     The main financial implications of the Bill for the public sector lie in the following areas:

  • the new frameworks for adoption support services and financial support and the right to an assessment for adoption support (clauses 2, 3 and 4);

  • the independent review mechanism (clause 12);

  • changes to the legal process of placing a child for adoption (clauses 17 to 34);

  • the new system for access to information held by adoption agencies (clauses 53 to 62);

  • tightening the controls on inter-country adoption (clauses 80 to 87 and 120);

  • the requirement on courts to draw up timetables for adoption cases (clause 104);

  • the special guardianship status (clause 110);

  • the Adoption and Children Act Register (clauses 115 to 119).

300.     Clause 3 requires each local authority to continue to provide, within their area, an adoption service. This duty includes a new clear requirement on local authorities to make arrangements to provide adoption support services, as specified in regulations to be made under clause 2. Clause 4 provides a new right for specified persons affected by adoption to request an assessment of their needs for adoption support.

301.     Local authorities currently provide adoption support, but the availability of individual services is inconsistent. The powers in clauses 2 and 3 will be used to set out a range of adoption support services (including financial support) which local authorities will be obliged to make arrangements to provide. The Government has allocated £66.5m of the Department of Health's Spending Review settlement over the period 2001/2-2003/4 to support the implementation of the programme of work set out in the White Paper in England. The National Assembly has also made extra funding available for adoption in Wales. Local authorities will be expected to invest a substantial portion of this funding in developing adoption support services, according to the new frameworks.

302.     Clause 12 enables the appropriate Minister to establish an independent review mechanism to review qualifying determinations made by adoption agencies. It is intended to use this provision to provide prospective adopters with a right to request a referral to a panel run by an independent organisation, where the adoption agency has indicated that it is minded to turn down their application to adopt. 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).

303.     The Department of Health and the National Assembly for Wales will meet the cost of establishing a body to operate the new independent review mechanism. The use of the independent review mechanism in relation to the assessment of prospective adopters 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 reviewed by the local authority's own adoption panel. They may be required to contribute towards the cost of convening a review panel, but this cost would be incurred instead of the cost of holding a second hearing of the local authority's adoption panel and so is unlikely to lead to significant additional expense. The use of the independent review mechanism in relation to adoption agency determinations about the release of protected information is not expected to place a significant additional burden on local authorities.

304.     Clauses 17 to 34 underpin the new system of placement for adoption. Local authorities wishing to place a child for adoption will, in prescribed circumstances, be required to apply to the court for a placement order. In many cases, applications for placement orders will be heard alongside applications for care orders, and in all cases they will replace existing freeing order cases. There may be several hundred additional cases requiring court hearings across England and Wales each year. Any increase in local authorities' workload as a result of placement should however be compensated to a considerable extent by a reduction in the number of contested final adoption hearings, as the placement system will address issues around consent to adoption earlier in the adoption process. The Department of Health and the National Assembly for Wales have taken account of the likely effect of the provisions on placement in allocating funding for adoption from the Spending Review settlement.

305.     Access to information is provided under clauses 53 to 62. A single gateway will be created for adopted people seeking access to information which identifies, or helps to identify, their birth parents. Such information is currently made available by both the Registrar General and adoption agencies, but adoption agency policy and practice on handling the release of identifying information is variable. All requests for identifying information in respect of adoptions taking place following implementation of the Bill will be channelled through the adoption agency which handled the case, and adoption agencies will operate a consistent system for determining whether to release such information. This will in theory lead to an increased workload for local authorities, as adoption agencies will be taking overall responsibility for a service which was previously provided in part by the Registrar General, including the provision of counselling. However, in the light of the increasingly open climate in which many adoptions now take place, demand for this type of service is now declining and is expected to continue to do so. The number of applications received by the Registrar General from adopted adults wishing to access their birth records fell by 27% between 1996 and 2000. The extra workload for local authorities is therefore not expected to be significant.

306.     Clauses 80 to 87 and 120 provide for improved controls for inter-country adoption. Regulations made under clause 80 will prevent people from bringing, or causing others to bring, a child into the United Kingdom, unless they have been appropriately assessed and approved as prospective adopters by a local authority or a registered adoption society. Similar provision is currently made by the Adoption of Children from Overseas Regulations 2001, made under section 14 of the Adoption (Intercountry Aspects) Act 1999. The provisions in clause 80 are likely to lead to increased demand on local authorities from prospective intercountry adopters wishing to undergo an assessment of their suitability to adopt. Local authorities may experience some initial pressure in building the capacity needed to deliver the level of service required. However, clauses 11(2) and (3) enable local authorities to charge prospective intercountry adopters a fee to cover the expenses associated with the assessment, and so local authorities should not be financially disadvantaged by these provisions.

307.     The Bill also contains new provisions for case management by the courts. Clause 104 places an obligation on the court, where it is dealing with any matter where the issue of whether a placement or adoption order should be made may arise, to draw up a timetable and give any directions it considers necessary to ensure that the timetable is adhered to. More effective case management will be resource intensive for court staff, judiciary and officers of the Children and Family Court Advisory and Support Service. Improvements in training will also enable staff and judiciary to deal with work more quickly and more efficiently.

308.     Clause 110 makes provision for the new special guardianship order. 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 also include provisions to enable local authorities to provide support for those affected by special guardianship placements, particularly where the child has previously been looked after by a local authority. The resource implications for local authorities will be determined by the volume of special guardianship placements, and can be expected to be potentially offset by the savings yielded by special guardianship orders being made in favour of children previously looked after by them.

309.     Clauses 115 to 119 enable the Secretary of State to establish the Adoption and Children Act Register. The Secretary of State and the National Assembly for Wales will meet the cost of establishing the register centrally. The resource implications of the Adoption and Children Act Register for local authorities were taken into account by the Department of Health and the National Assembly for Wales in allocating money from the Spending Review settlement to support the White Paper work programme. 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 is therefore not expected to be significant.

 
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Prepared: 19 October 2001