|Adoption and Children Bill
Tim Loughton: Now the Minister has urged rejection, I shall give her my reasons for proposing the new clause in the first place; I shall respond to the counter-response, which is bizarre.
To put the new clause into context, we have endeavoured to be helpful, which I hope the Minister will acknowledge, in our amendments to clause 1. We have taken a multiple-choice approach, and although she sympathised with some of our intentions, she has not accepted any of our amendments. On that basis, the new clause gives her the option of replacing clause 1, the weaknesses in which we discussed earlier. It is entirely consistent for my hon. Friend the Member for North Dorset to add his name to the new clause, having not had his earlier amendment accepted. We sympathise with the thrust of amendment No. 24, which reappears as an attachment to the new clause.
We obviously welcome much of the Bill's content, and its general principles of paramountcy and speed are recognised in clause 1. To echo the Minister's comments, the recognition of the lifelong impact of adoption is important; it is more than an episode in a child's life, which is why that recognition has been retained in the new clause. There is, however, a raft of problems. Clause 1 does not address timetabling, and we want the legislation to come into force as soon as possible. Furthermore, it is difficult to deal with the principle of the Bill in the absence of the regulations that will be the meat and drink that enforce that principle, which is especially true in the provision of support services.
Clause 1 does not address the mechanics by which the increased targets for the amount of adoptions taking place will be reached. As the hon. Member for Chatham and Aylesford (Mr. Shaw) rightly pointed out, it does not deal with the treatment of children with different problems and ages. The role that the child is to play is still unclear, which is why we pressed our amendment to the vote. However noble the intentions of clause 1—there are many noble intentions in clause 1—they will fall down unless they are properly resourced in terms of social services departments and other agencies that deal with people involved with adoption. We shall be seeking further assurances on that matter later in the Bill.
There are also problems with legal definitions. Subsection (4)(f)(ii) refers to
That is open to legal interpretation. The Minister cannot resist quoting from her brief, which, as we have discussed, brings us to the PC checklist, a colloquial phrase that will be with us for some time.
I was surprised by remarks of the hon. Member for Meirionnydd Nant Conwy on the language qualification in that checklist. Ironically, his suggestion would work against the promotion of the Welsh language. There are many more English babies who could be adopted by Welsh-speaking parents and become Welsh speakers later in life than there are Welsh-speaking babies who could be adopted by English parents.
Kevin Brennan: That is a puerile point. All children raised speaking Welsh in Wales are bilingual because they learn English and Welsh. That is a gift, not a disadvantage, to children.
Tim Loughton: Far from being puerile, my point was factual and helpful. It did not demean the rich tapestry of the Welsh language, which should be available to more people. It was a statement of fact, but the hon. Member for Meirionnydd Nant Conwy is no longer here, so we will have to leave that for another day.
Clause 1 is designed to introduce the paramountcy of the child's welfare into adoption law. The clause extends the Children Act's formulation by adding that such consideration is to be throughout the child's life. We accept and applaud that. Unfortunately, it does not meld seamlessly with the Children Act, or make clear provision for twin-track planning, which would reduce delay. Subsections (1) and (7) attempt to define adoption jurisdiction, but fail to divide clearly between jurisdiction and the public law care proceedings of the Children Act. That would not matter if the same welfare checklists were applied to adoption and care proceedings, but they are not. The division is so blurred that the scope for legal argument is huge.
Under the Children Act, any care case in which the local authority was engaged in twin-track planning could match the description of clause 1(7)(a):
To gain advantage, one of the parties might claim that the adoption rather than the Children Act welfare checklist should be applied. The clause does not bring the Bill into line with the Children Act. A multiple-choice situation could develop in court; one side might opt for the Children Act checklist as it applies to adoption and care—the provisions in clauses 22 and 23—instead of the Bill's new checklist
Guardians or social workers may have to write a report following one checklist in care proceedings and another checklist because of the possibility of adoption, which would be a waste of their very expensive and valuable time. That problem is more serious than the clogging of the courts with arguments about which provisions should apply. The solution is to minimise the distinctions between the Bill and the Children Act checklists. In cases that are necessarily different—for instance, the permanent nature of adoption orders—we must make clear which procedure applies. The new clause would clarify that process for lawyers. New clause 2 would rewrite clause 1 wholesale by following the Children Act wording. It only diverges in additions about adoption.
The Minister pre-empted me, but perhaps I can put a different spin on the changes in new clause 2. Subsection (1) in the new clause would add
Proposed new subsection (2) adds:
That is a simplification of the clause 1(2). In proposed new subsection (4)(b), a better definition is added:
We heard last week from witnesses about how much educational and psychological evidence is part of the support services that we need to provide. Paragraph (c) refers to any changes in circumstances, rather than to the less-clear family change to which my hon. Friend the Member for North-West Norfolk referred.
Mr. Bellingham: The clause as drafted and the new clause refer to ``his''. Does not my hon. Friend think that the time has come to start referring to ``his and hers''?
Tim Loughton: That is an interesting point. My hon. Friend tabled amendments to that effect that we have not discussed because, sadly, Mrs. Roe, you chose not to accept them. The Bill is complicated enough without our having twin-track discussions on whether ``his or her'' is appropriate. I fear that that is a debate for another day.
New subsection 4(f) has some important additions to which we shall return later. The clause as drafted does not give sufficient regard to siblings and half-siblings; that is why ``relatives'' is qualified in the proposal. Paragraph (f) in the new clause removes the reference to a secure environment, which is open to all sorts of interpretations, and adds at the end of paragraph (g):
which follows the wording of the Children Act.
New subsection (5) repeats the politically correct checklist in section 22 of the Children Act, adding the provisos in amendment No. 24. The new clause removes subsection (7) as drafted and replaces it with subsection (6); it also deletes references to relationships.
New subsection (1) makes it clear that care proceedings with twin-track planning are to follow the Children Act checklist, and largely does away with the need for new clause 1(7). Our proposals for clause 1(2) follow the Children Act wording more closely, while retaining the necessary addition of ``throughout his''—or her—``life''.
The proposed changes in new subsection (3) follow the Children Act wording but are crucially different from the wording in the Bill because legal advice states that it is vital that the concept of the effects of delay are the same in both measures. Clause 104 also needs to mirror the new clause rather than the wording in the Bill as drafted, which is an unhappy borrowing from section 32 of the Children Act. Leaving the wording as drafted will enable lawyers to argue that a difference is intended by Parliament because of the different location of the word ``general'' in the sentence. We are trying to avoid the long, strung-out delay in the courts, which profits solicitors but is not in the interests of those involved in adoption, especially the potential adopted child.
Case law on the Children Act has developed the concept of purposeful delay as an excuse for not addressing proceedings with all speed. If the Bill's wording is deliberately intended to allow for that concept to be included, it should say so, and the Government should consider amending the entire Children Act.
The proposal in terms of clause 1(4) again follows the Children Act wording much more closely and thus avoids the prospects for arguing that the difference was intended, other than on the specific editions which are, (c), adding ``throughout his life'' and, (f), where there is a much greater emphasis on the long-term effects of changes.
We have also taken out the words ``among others'' in line 13 since that is an invitation to lawyers to persuade courts to adopt additional criteria by accretion of case law. We have reverted to the Children Act formulation of
In our proposal for clause 1(4)(c), we have specifically omitted
and re-introduced the concept of
The latter is so much wider and can be properly tailored to the circumstances of that particular child. Without this inclusion the Bill's list does not really include the general consideration of the proposed changes in the child's life.
The proposal for clause 1(4)(f) is to specifically introduce the concept of the wishes and feelings of siblings and half-siblings. That does not appear to feature as much as we think it should in the whole Bill. The Bill as proposed places a great deal of emphasis on the child's feelings and those of the surrounding adults, but does not spell out the special considerations of the child's siblings and half-siblings who by reason of their likely closeness in age to the child, could well have a longer role in that child's life. That would also enable the consideration of a placement that brings together rather than splits up, which has long been a source of problems.
It is important to appreciate that the wording of clause 1(4)(f) would allow the views of foster parents to be taken into account, particularly in circumstances where they wished to adopt and the local authority had other plans. Can the Government clarify whether or not that is their intention?
In proposed new clause 1(4)(f) we deliberately omitted the words
because such a need is envisaged in the word ``needs''.
The addition of such words—particularly the phrase ``secure environment'' and the word ``develop''—will give rise to an enormous amount of legal argument because it will suggest a prominent position for those over matters above general consideration of all the child's particular needs.
The proposed new clause 1(4)(g) mirrors clause 1(3)(g) of the Children Act and would stand instead of the Bill's clause 1(6). Finally, we have included part of the Bill's clause 1(7) as our proposed clause 1(6) and added the role of the Bill's clause 1(8)(c) to it.
Clause 1(7)(b) makes little sense. What distinction is being drawn? Perhaps the Minister could answer that. What criteria are proposed in terms of the decision to initiate proceedings for adoption in a court, if not those in the Bill? Similarly why are other aspects of granting this not included, in relation to adoption matters?
I hope that has made the new proposed clause crystal clear and that the Minister will be able to explain why the original assumption—that perhaps it was not such a good deal after all—may need to be reviewed in the light of the detailed breakdown of why our new clause 2 is much better than her existing clause 1.
|©Parliamentary copyright 2001||Prepared 27 November 2001|