Adoption and Children Bill

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The Chairman: I welcome you, colleagues, to this first evidence session for the Adoption and Children Bill, and in particular I welcome our witnesses.

As you will appreciate, the time available is very constrained. We have an hour and a half in which—hopefully—to get through our business, with a further hour and a half for dealing with other witnesses. I will therefore be grateful if witnesses keep their answers crisp and brief, and I hope that my colleagues will ask their questions in a similar fashion.

Ms Meg Munn (Sheffield, Heeley): I start with the issue of placement orders, parental consent and consistency with the Children Act 1989. The adoption law review has suggested that wording should be included in the Bill stating that parental consent to adoption should not be dispensed with unless the benefits to the child of being adopted are so significantly better as to justify dispensing with parental consent. If such a provision were included in the Bill, what issues would arise and what would be the likely effect?

James Paton (Directorate of Children, Older People and Social Care Services, Department of Health): We looked at that issue, following the adoption law review, in developing the Bill and the draft Bill in 1996. I think that the Government believe that the child's welfare should be the paramount consideration in all adoption decisions, including the question of dispensing with parental consent. Clause 1 sets out a checklist of factors that the court must look at in considering whether to make a placement order or an adoption order without the consent of the parents. In particular, I draw the Committee's attention to clause 1(4)(f), which obliges the court to consider the child's relationship with their birth family and any other significant people, the views of the family and their capacity to care for the child and provide a stable and secure home.

We did not explicitly use the phrase ``so significantly better'' because we did not think that it added anything to the considerations that the court must bear in mind in taking such decisions. The court will have to consider all the various factors. In weighing up whether or not to make the adoption order, it will have to bear in mind those factors, its other powers under adoption legislation and the Children Act, and, of course, the various parties' rights under the Human Rights Act 1998 and the European convention on human rights. The decision will need to be taken in the context of ECHR case law and the test that the court would have to take in deciding to dispense with the parents' consent would not be trivial or low.

We did not think that saying that the court must not dispense with the consent unless it is ``so significantly better'' added anything—what would the court look at in deciding whether it was ``so significantly better''? We think that the court would consider the list of factors in clause 1(4), weigh up various factors in the context of convention rights and the court's other powers and come to a decision. We are not sure that adding ``so significantly better'' would make a substantive difference, and we are concerned that it may also create confusion by opening up a large vein of debate about what ``significantly better'' meant.

Mr. Julian Brazier (Canterbury): To ask an overall point, I would like to address the provisions relating to dispensing with parental consent. There have been many cases, including that of a nice young lady from care who told me that she would have liked to be adopted but because her mum refused—a mum whom she did not subsequently see for 10 years—she could not be adopted. Are you satisfied that the Bill will remove the ability of birth parents who are basically out of the equation to delay the process endlessly?

James Paton: What it does is ensure that the court considers all relevant factors and weighs them up. The court will need to include the birth family's views, but consider them in the context of the relationship with the child, the value to the child of that relationship continuing and the relatives' capacity to provide the child with a secure and stable environment. Alongside that, there are other factors in the checklist including the benefit to the child of being adopted. Clause 1 provides a checklist of the various factors that need to be part of the decision of the court, which will weigh everything up bearing in mind the rights of all parties and convention case law, and will arrive at an appropriate decision based on the child's welfare. Would you like to add anything to that, Sandra?

Sandra Walker (Assistant Director, Solicitor's Office Division C, Health and Personal Social Services, Department of Health): The only point that I would add is that the decision about dispensing with consent is taken at the beginning of the adoption process, and is not something that is left until the end when positions have become entrenched. Such decisions are made at the start so local authorities and other agencies will not be able to place a child for adoption unless they have parental consent or a placement order.

Mr. Hilton Dawson (Lancaster and Wyre): I have two points, Mr. Paton. The first is in response to your point about whether courts would be able to decide what ``significantly better'' meant, and what factors would be used. Surely courts are familiar with such debates because they have to consider similar matters when weighing up whether to make a care order. They must decide whether all the right conditions exist for a care order, whether it is in the child's interest and whether it will make a significant material difference. What is the difference here?

James Paton: I think that the difference is that with the care order example one is talking about a court making a judgment on whether the child is likely to suffer significant harm, which is a tangible concept, but ``significantly better'' asks the court to make a relative judgment. I am not sure that including such a requirement adds anything to what the court will be obliged to do anyway under clause 1(4). How will a court decide that it is ``so significantly better'' as to justify? It would need to consider benefits to the child, views of the parents and everything that is in the checklist, weigh them all up in the context of the various parties' rights and reach a decision. I am not sure that ``so significantly better'' adds anything and I do not think that the parallel with a care order is exact because in that case one is talking about harm, whereas this is a comparative situation—``significantly better'' or not, what does that mean?

Mr. Dawson: That is not the case. One might be dealing with significant harm, but the decision that must be made—explicitly—is whether making a care order would be better than making no order at all.

James Paton: Indeed, and the same thing must be done here.

Sandra Walker: The test for making a care order is that the threshold conditions are satisfied, which is the significant harm test. A placement order cannot be made unless the court, similarly, is satisfied that those criteria are met. Before the court can make a care order, it must look at the question of the child's welfare and then decide whether to make the order. It may not make it unless it considers that doing so would be better for the child than making no order at all. Precisely the same test is in the Bill: the court may not make an order unless it considers that doing so is better for the child.

Ms Munn: To ask a very brief question, in what percentage of cases are orders likely to be made without parental consent, and how does that compare to the current situation on adoption orders?

James Paton: That is difficult. I suppose that the closest parallel would be the current situation involving freeing orders. About 40 per cent. of looked-after children who are adopted have previously been freed. We do not have regular information about the numbers of cases that are contested but, speaking from memory, I think that research in the early '90s indicated that about 75 per cent. of freeing orders were made without the active consent of the individuals involved, although only about 20 per cent. of the actual court cases were actively contested.

I suppose that similar proportions will arise here, although, as Sandra Walker says, because consent or dispensing with it is being dealt with earlier in the process, through the placement provisions, there may be an increase in the number of cases contested at that point. A criticism of the current adoption process is that it leaves too much to the final hearing and that birth families can feel faced with a fait accompli then. Because we are giving them a more substantive chance to address such issues earlier in the process, there may be a higher number of opposed cases. However, the court will take that into account and make a substantive decision after having heard all the parties' views.

Mr. Dawson: There is no provision in the Bill for children—we are examining the adoption of older children here—to give explicit consent to being adopted, nor does there seem to be any mention of the separate representation of children throughout adoption proceedings.

James Paton: I will make two points on that. The 1996 draft Bill included a clause that children over the age of 12 should consent to adoption. The consultation responses on that were overwhelmingly negative, indicating that it would place too great a burden on children. It was removed from the Bill on that basis. Clause 1(4)(a), however, will oblige the court to have regard to the child's ascertainable wishes and feelings regarding decisions, including the decision on making the adoption order. They will be

    ``considered in the light of the child's age and understanding''.

On the child's representation, the Bill provides for officers of the Children and Family Court Advisory Service, the children's guardian in such cases, to be appointed for placement order and adoption order proceedings. The child's guardian will therefore be present to represent its views to the court and to ensure that the court process is explained to it appropriately and sensitively. In terms of the child being a party to proceedings—

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