Adoption and Children Bill

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Mr. Dawson: I appreciate the sincerity with which the amendment was moved, but such a suggestion is misplaced. We had some excellent sittings last week listening to our witnesses. Their evidence clarified much of our thinking. I hope that the new approach to adoption and consultation, in which the views of young people are listened to, and the new structures on children's guardians will encourage many more children to say explicitly, ``Yes, I would like to be adopted. That's for me''. I hope that many children younger than 10 years old will be enabled to do that. I hope also that it would be exceptionally rare for children to be faced with the option of an adoption that they did not want. If that did occur, I would hope that under the improved mechanisms, greater understanding and better procedures for listening to children, they would be enabled to say, ``No, this is not for me. This is not what I want.''

Clause 1 is well balanced and carefully proposed. I am afraid that the amendment would increase children's vulnerability. It mentions specifically children aged over 10. By that age—often even if they have lived in the most appalling circumstances with birth parents—children have developed huge loyalties to parents, siblings, grandparents and other relatives. They can be extremely torn about their future and what they want to happen to them. I would worry about placing children in a position of carrying such responsibility. Indeed, I cannot imagine myself carrying such a responsibility at any childhood age or being required to decide whether I would want to be adopted.

The amendment would put an incredible amount of pressure on children and, as Members on both sides of the House care for children, we should not do that. The nightmare scenario of a child facing adoption proceedings with a barrister instructed by people who want to undermine that child's view of what should happen to them would be appalling and destructive. I hope that the hon. Gentleman will not press the amendment to a Division, although I recognise the decent spirit in which it was moved.

Jacqui Smith rose—[Interruption.]

The Chairman: If the hon. Member for Romsey wishes to catch my eye, she should stand up in her place. Waving, winking or putting her thumbs up is not good enough; the rules apply here as they do in the Chamber. I believe that the hon. Lady tried to catch my eye.

Sandra Gidley: You winked at me earlier, Mrs. Roe, so I thought that I had caught your eye.

The Chairman: I was surprised that the hon. Lady did not stand up until later, which is why I did not call her.

Sandra Gidley: I apologise for the misunderstanding.

I want to echo the sentiments expressed by hon. Members who spoke against the amendment. I, too, feel that it is well meant. However, criminal law is one thing, and the position of a child being placed for adoption is another. We are speaking about a 10-year-old in a vulnerable situation, at a time of intense emotional turmoil that few of us can understand. My feelings are swayed by a case that I encountered recently—it did not involve adoption, but there were parallels.

Let us consider a case in which one birth parent does not want the child adopted but, for the best reasons, social services—or whoever—decides that the child should no longer be with the birth family. The birth parents could find ways of putting incredible pressure on the child and, if he or she has the power of veto, the emotional burden would be more than we should ask someone to bear. If the amendment is pressed to a Division, I shall vote against it.

Jacqui Smith: The arguments surrounding the amendment have been well and clearly exemplified.

The problem is not what intentions may or may not be behind an amendment—admirable or not—but the affect that it would have on legislation. The Government want to resist the amendment for two reasons. First, there are the more technical issues raised by hon. Members about a single age range. If we determined an age of 10, how would we deal with questions about the capacity of the child? As hon. Members have pointed out, there may be very different circumstances, abilities and natures among children aged 10.

12 noon

Mr. Llwyd: To play devil's advocate for a minute, it was the hon. Lady's Government who did away with the doli incapax rule so that, effectively, every child of 10 is criminally liable regardless of his or her ability. That tends to undermine her last statement.

Jacqui Smith: I was supported in my view by the hon. Member for Romsey, who pointed out that there is an important distinction to be made between criminal liability and the ability or need of a child to make a very difficult and potentially tricky decision about their future and their relationship with their birth parents and their prospective adopters. There are technical difficulties around the idea of distinguishing by age.

If we are attempting to make it practically impossible for an older child who could express a view to be adopted against their will, does not subsection (4)(a)—and, indeed, the rest of the clause—do so? Having weighed up the issues in the checklist and the other aspects of the clause, the courts would need an extremely good reason to do what the hon. Member for Huntingdon appears to be asking us to avoid: the possibility of a child being adopted against their consent.

That leads me to the second problem, which was ably described, particularly by my hon. Friend the Member for Lancaster and Wyre. The amendment would require not that we should consult a child, ensuring that their wishes are represented in court and borne seriously in mind in the decisions that a court or adoption agency reaches, but explicitly that we should ask and expect the child to consent to the placement or adoption. Forcing a child to make what would have to be a formal, open, legal statement would place too much responsibility on them—probably regardless of their age. We have heard mention of some of the guilt felt by the child during the process of adoption, and of the complexity of the child's feelings. Even when there has been abuse, for example, children continue to have a commitment and an attachment to their parents.

Mr. Walter: I am interested in the Minster's line of argument against the amendment. My hon. Friend's amendment would amend the provision that

    ``The court or adoption agency must have regard to . . . the child's ascertainable wishes and feelings''.

Is it not therefore reasonable, in considering such ascertainable wishes and feelings, that the court should question whether an older child is agreeable to the idea and feels that the adoption should go ahead? If so, the court would be taking the child's consent into account.

Jacqui Smith: The hon. Gentleman undermined his point as he developed his question. He first asked whether the court would consider whether the child consented and went on to provide legally weaker definitions of what constitutes consent. There is a general consensus in Committee on the objective; disagreement only on how best to achieve it. We all accept that the child's wishes and feelings should be ascertained and represented to the court. The opposition to the amendment is focused on whether it is right to ask a child, in a formal, public and legal manner, to consent to the plan. We have debated some of the difficulties and my hon. Friend the Member for Lancaster and Wyre suggested that requiring such consent could place a terrible burden on a child. We should remember that we are talking about adoption, so the children would carry the decision with them for the rest of their lives. It would influence their entire relationship with the adoptive family.

It is interesting that a specific requirement for children aged 12 or over expressly to consent to adoption was included in the 1996 draft adoption Bill, but was removed, following consultation, on the grounds that it placed too much of a burden on the child. The balance of evidence at the hearings would support that approach. I reiterate—as it may have been the intention behind the amendment—that subsection (4)(a) will oblige courts to ascertain and take account of the child's view,

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

Court rules provide that a guardian must be appointed to represent the child, and the guardian's duties include reporting the child's views to the court. The courts are obliged to consider them before taking any decision. It is envisaged that guidance to courts and the judiciary in respect of the new Act will have to cover how the child's views were taken into account before the final decision was reached. That is the appropriate way of ensuring that the child's views are heard in court. The amendment is neither workable nor desirable, so I hope that the hon. Gentleman will withdraw it.

Mr. Djanogly: Having heard the discussion, I shall withdraw the amendment, but I am still not confident that issues surrounding the consent of the child have been dealt with adequately. The defeat of amendment No. 15, tabled by my hon. Friend the Member for East Worthing and Shoreham, and the withdrawal of my amendment takes us back to the Bill, in which the child's rights are not expressly stated. We will have to rely on guidance. The Minister states that guidance will be proper and adequate, but we have had no sight of it.

Jacqui Smith: I hope that the hon. Gentleman realises that I spoke about regulations, which are legally much stronger than guidance.

Mr. Djanogly: I appreciate that regulations are firmer than guidance. However, we have still had no sight or knowledge of such regulations, so it is fit and proper to use today's debate as a forum in which to discuss what those may be.

To that extent, it is worth reiterating that there was—I think—agreement that a child has the right to a say in whether they are adopted and that there should be contact with the child. I have gone further by adding an age. If a child of 10 can be locked up for committing a criminal offence, I do not see why we cannot stipulate an age at which they can have a say in their adoption. Clearly, that brings us back to the regulations, and I should be interested to hear from the Minister whether we are likely to have early sight of them. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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