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4 Nov 2002 : Column 107—continued

9.15 pm

These are detailed amendments, but our clear intention is to ensure that children being adopted from overseas by parents, relatives, guardians and step-parents are properly safeguarded. We recognise that such children are vulnerable, that they need protecting and that their relatives may need the same assessment of suitability and/or help to prepare for adoption as a stranger planning to adopt a child from overseas. However, we are also clear about the fact that we do not want to impose unworkable restrictions and that we need to take the advice of those working in the field as to any groups that should legitimately be excluded. That is why we have taken care to include in the amendments regulation-making powers that provide the necessary flexibility to react to experience, changes in practice and the views of professionals.

Lords amendment agreed to.

Lords amendments No. 40 agreed to.

Lords amendment No. 41 and Government amendments (a) to (c) thereto agreed to.

Lords amendments Nos. 42 and 43 agreed to.

New clause

Lords amendment: No. 44, before clause 110, to insert the following new clause—XOrders with respect to children—
In section 8 of the 1989 Act (residence, contact and other orders with respect to children) there is inserted—

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X(5) The Lord Chancellor may make regulations providing for the separate representation of children in specified circumstances relating to any matter arising from proceedings under this section.""

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move, That this House disagrees with the Lords in the said amendment.

Madam Deputy Speaker: With this we may discuss Lords amendments Nos. 48 and 49, the Government motions to disagree thereto and amendment (a) in lieu thereof.

Ms Winterton: First, I must make it clear that in moving motions to disagree with amendments Nos. 44, 48 and 49 made in the other place, the Government are not disagreeing at all with the principle that children should have a say in decision making regarding their future. The Government amendment in lieu seeks to meet the spirit of the amendments made in the other place while eliminating some technical flaws and reducing duplication.

Neither the amendments made in the other place nor the Government amendment would add to the existing powers of the courts or the Lord Chancellor. The courts can already order that a child be made a party and separately represented in any family proceedings. However, we have listened to and respected the views of the House and the other place, and we agree that those powers should be explicitly referred to in primary legislation.

The Government, in tabling their own amendment in lieu of those made in the other place, seek to address three key concerns that have been raised during the passage of the Bill. First, there is too stark a distinction between public law cases in which the state intervenes in a family's life—for example, care proceedings—and private law disputes between individuals. Secondly, the power to provide for the separate representation of children is not referred to explicitly in primary legislation. Thirdly, children should have access to separate representation more frequently than they do at present.

The Government's amendment would make it clear in primary legislation that applications for the making or revocation of a placement order will be specified proceedings as defined by section 41(6) of the Children Act 1989. The child will be a party, a children's guardian will be appointed, and the child will be separately represented in every case. The issue has been raised both here and in the other place. The Government have already said publicly that they will make such proceedings specified; the amendment would embody that commitment in the Bill.

Using Lords amendment No. 49 as a basis, the Government's amendment in lieu provides that proceedings for section 8 orders—such as contact and residence orders—can, in circumstances to be established by rules of court, be designated specified proceedings. That will give us the necessary flexibility to take into account the outcome of planned public consultation on the representation of children in private law proceedings. Using section 64 of the Family Law Act 1996 as a basis, the Government's amendment

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amends section 93 of the Children Act, dealing with rules of court, to enable the Lord Chancellor to make rules to provide for the separate representation of children. He has made such provision in the current rules, but the amendment sets his power in primary legislation. That is intended to address Lords amendments Nos. 42 and 48.

The Government's amendment goes wider. It will apply not only to applications for section 8 orders, but to other proceedings under the Children Act—for example, applications for special guardianship orders. It makes it absolutely clear that we have power to specify certain categories of private law proceedings as requiring children to be parties automatically, and to be separately represented. The amendment would place in primary legislation the ability for rules to provide for children's separate representation in private law cases. It goes further than Lords amendment No. 44, as it applies to all proceedings under the Children Act.

Mr. Dawson: What would be the effect on children appearing at adoption hearings? Will they have ready access to separate representation?

Ms Winterton: Not all adoption proceedings will require separate representation. The issue has been much discussed, and I think it is agreed that it will not be appropriate in some cases. We are trying to adopt a belt-and-braces approach to the current situation. We want it to be stated in primary legislation that other circumstances can also be specified in regard to automatic representation.

The amendment should not be seen in isolation. We have already completed a Xscoping" study of how children might have a more effective voice in family proceedings. There will be full public consultation, which will begin later this year. That consultation will also address the third concern raised in debates here and in the other place about the need for greater consistency in how the powers available to the courts are used in practice. If necessary, following consultation, we can add to the definition of specified proceedings and use court rules to guide the courts in those cases in which the separate representation of the child may be especially important.

The amendments do not change the existing position. Children may already be separately represented in any family proceedings, but the Government's amendments are intended to make that commitment explicit in primary legislation in order to address the concerns that have been raised. Those changes in primary legislation must not be the end of the story. We need to ensure that the powers provided under the Children Act 1989 work effectively, and that is why we need to have the flexibility to take into account the results of consultation when making court rules. It is important that we listen to the views of children and young people themselves. I ask the House therefore to disagree with Lords amendments Nos. 44, 48 and 49, and to support the Government's amendment in lieu.

Dr. Evan Harris: Strictly on a non-love-in basis, I wish to congratulate both Ministers on the mastery of their briefs and to thank them for their courtesy. I even extend my thanks to the Conservative spokesman, the hon. Member for East Worthing and Shoreham

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(Tim Loughton), who has occasionally been courteous to me and was, no doubt, very courteous to my hon. Friend the Member for Romsey (Sandra Gidley). She has been promoted out of this portfolio, but wished me to pass on her thanks. [Interruption.] I will not be drawn on whether she has escaped or been punished.

I come late to the issue, but I do not intend to oppose the amendments in lieu. However, I wish to raise several points on behalf of those who have supported our campaign. I have received help from the NSPCC, Women's Aid, NCH and the legal department at BAAF in promoting the approach that the Government have now accepted. The original amendments, the spirit of which the Government have accepted, were tabled by Lord Listowel, but were moved by my colleague, Baroness Thomas. We would appreciate some clarification on certain issues: if not now, then in the other place when the original movers of the amendments will have the chance to put their view.

I shall not rehearse the basis of the amendments, because the Minister has done that admirably. I thank the Minister for accepting the thrust of the amendments and, indeed, for going further in some of her amendments in lieu, which are of course more correctly drafted. My first question is whether the necessary and relevant court rules will be made as promptly as possible, because without them the amendments would add nothing to the Bill. The existing framework is in place, so the addition of the court rules would be straightforward. Does the Minister have in mind a timetable for her proposals to consult? We remember section 64 of the Family Law Act 1996, which was never implemented, so people with an interest in the matter will want to see the actual regulations.

The Minister has clarified that children will be full parties in the circumstances in which she envisages that the court will feel that to be appropriate. The children will then have the benefit of both the children's guardian and a solicitor.

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