Adoption and Children Bill

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Mr. Djanogly: I beg to move amendment No. 75, in page 2, line 2, leave out from `with' to `including' in line 4 and insert

    `any person who is entitled to make an application pursuant to section 25(3).'

There are two points behind my tabling the amendment. First, all hon. Members would agree that this is quite a complicated Bill in its legal construction and drafting. Reading clause 1 and cross-referring to clause 25, which contains the contact provisions, I realised that slightly different definitions were used, although the end intentions were very similar. The definition in question is in clause 1(4)(f). I noticed that clause 25, which has significant relevance to issues such as contact, used a different definition. Therefore, I suggest that the people who can apply for a contact order should be the same as those mentioned in clause 1(4)(f).

There is a wider issue, which I am also trying to get at with my amendment. It would be nice to think that most adoption agencies would be keen to encourage adoption, but we must consider whether the provisions could be used to keep a prospective adopted child within a specific area, rather than to have the child promoted on to the national register. In certain circumstances, particular adoption agencies may not be keen on using that register. My amendment is aimed at tightening up the legislation slightly to prevent an adoption agency from being able to get round one of the Bill's purposes.

12.15 pm

Jacqui Smith: The hon. Gentleman and I agree about the legal complexity of the legislation. I understand the probing aspects of the second part of his comments, and I will come to that in a moment.

Let me outline our concerns about the legal effect of the amendment. It seems to be aimed at narrowing the range of people whose relationships with the child the court or adoption agency must consider in coming to a decision about adoption. That may not be the aim of the amendment, but it would be the effect. The hon. Gentleman compared clauses 1 and 25. It is worthwhile for us to remember that clause 25(3)(a) is modelled on the Children Act provision for care contact orders. The intention in clause 25(3) is to enable anyone to apply, with leave, for a care contact order, and is different from and narrower than the intention in clause 1.

Another difficulty is that the amendment would remove the obligation on the court and agency to consider the child's relationship with its father, unless the father had parental responsibility. For that reason, the narrowing would be inappropriate. In the overarching clause that we have drafted to determine the conditions for all decisions that are made by courts and adoption agencies, what matters is not the precise relationship but the significance to the child of the relationship. That is why the drafting of clause 1 is flexible and differs, as the hon. Gentleman pointed out, from that of clause 25(3).

Clause 1 provides a wide definition of ``relative'' but also allows for the relationship with any other person that the court or agency considers relevant to be taken into account. That might apply if a distant family member or family friend has taken a leading role in caring for the child. It can only be right to consider the value of that relationship from the child's point of view and how it would be affected by adoption. However, the court or agency must balance the value of the relationship and the chance of its continuing against all the other factors in the checklist before coming to its decision. I hope that I have made it clear that there are different intentions in different parts of the Bill for the definition of relatives.

The hon. Gentleman probed the extent to which it will be compulsory for local adoption agencies to place children on the adoption register and was concerned that the Bill allows a way in which that could be avoided. I assure him that that is not the case. Regulations under clause 117 will require local authorities to forward to the register the details of all children who have adoption as the plan, if a local or regional match has not been found within the set period.

If the register generates potential matches, it will be the responsibility of the adoption agency to consider whether the match is in the child's best interest. Under current procedures, the decision would be taken following a recommendation on the suggested match by the adoption panel. In considering the matches, the agency will need to balance the relationships relevant under clause 1(4)(f) with all the other factors in the checklist, including the benefits to the child of being adopted. However, most contact in adoption is indirect or ``letterbox'' contact, which can easily take place over a considerable geographical distance. We do not intend to allow local adoption agencies a way out of engaging in the adoption register, which we consider to be an important means of ensuring that we are better able to match children more quickly with prospective adopters. I hope that the hon. Gentleman is reassured that we will do what is necessary to ensure that the register operates in the desired way.

Mr. Djanogly: I am reassured by the Minister's remarks, and I am prepared to withdraw my amendment. However, having heard her talk about the differences between the clauses, I am still not sure that we have got it right.

Jacqui Smith: I undertake to write to the hon. Gentleman about the first of his concerns.

Mr. Djanogly: If fathers are not included in the Children Act provision, it may be appropriate for them to receive contact rights if they are so excluded in clause 25. At the same time, I am not sure whether there are provisions to ensure that clause 1(4)(f) cannot be used to complicate the adoption process because it does not sufficiently define who should be considered for continued access to the child. That is a complicated area, and I am struggling with the words to define it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Walter: I beg to move amendment No. 1, in page 2, line 14, leave out—

    `religious persuasion, racial origin and cultural'.

The Chairman: With this it will be convenient to take the following amendments:No. 19, in page 2, line 14, leave out from `the' to end of line 15 and insert `child'.

No. 24, in page 2, line 15, after `background', insert—

    `, subject to the proviso that such consideration shall be secondary to the matters to be considered in subsections (2) and (3).'.

Mr. Walter: Amendment No. 1 is probing, and we want to use it to examine some important aspects of the Bill. There are several typographical errors on page 31 of the amendment paper. I appear to be called ``Mr. Mr.'' all the way through. There is also a slight error in the manuscript amendment that I submitted to the clerks. My original manuscript said that I would leave out

    ``religious persuasion, racial origin and cultural and linguistic''.

Making the clause say that ``the adoption agency must give due consideration to the child's background'' would simplify it. As the amendment is probing, I will not spend much time talking about the discrepancy in its tabling, but speak instead to the general principle.

It is of paramount importance that the interests of a child who is to be adopted are put first. When an adoption agency or a court considers a child for adoption, it is important that it looks at the child's background. It concerns me that the clause is very specific about all the factors that must be considered. If an agency or a court decides to be pedantic and starts to consider all those factors—religious persuasion, racial origin, and cultural and linguistic background—it could lead to delays in the process of considering the child's suitability for adoption by specific adoptive parents.

Perhaps it is worth considering how important these factors are in relation to the child's age which is not mentioned in this amendment. Obviously, if a child has reached a benchmark age of ten and has experience of a religious upbringing, a racial background, or a cultural background, or if the child speaks a language that may not be the language of the adoptive parents, all those factors should be taken into account. However, if the child is very young and has not yet grasped any particular knowledge of language, they will not have a particular cultural or religious background to which they can relate. In such cases, we are treading on dangerous ground—in fact, we are treading on fairly archaic ground if we believe that the religious background of the child's natural parents is relevant to the adoption procedure for a child who may be a babe in arms. I think that that is a factor—

Liz Blackman: I am sorry to interrupt the hon. Gentleman, but I believe that subsection (4)(d) covers those points.

Mr. Walter: The hon. Lady points outs that

    ``the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant''

is in subsection (4)(d), but subsection (5) says

    ``In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.''

The two subsections are to some extent contradictory. What I want to do is to give the adoption agency and the court flexibility while taking into account the child's background.

Liz Blackman: On that point, in each subsection the word ``must'' is used. The organisation making the decision ``must have regard to'' the list, but the child's welfare is of paramount consideration: it outweighs all the factors on the list. In coming to its conclusions it must give consideration to those factors, but what ultimately drives the process is the child's welfare.

Mr. Walter: I thank the hon. Lady for pointing that out, but I remain concerned that on the face of the Bill it says that when placing a child for adoption

    ``the adoption agency must give due consideration''

to those factors, which are, in the case of younger children, too prescriptive. I want nothing to appear on the face of the Bill that might delay the adoption procedure for children to whom those factors are irrelevant.

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