Adoption and Children Bill

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Jacqui Smith: The clause sets out three conditions, one of which must be satisfied before the court can make an adoption order. First, the court must be satisfied that the parents have consented, either at the time or in advance under clause 19. We had significant discussions this morning about the safeguards and the process relating to support for birth parents in making that decision and the extent to which it is possible for birth parents to withdraw that consent. The Government responded this morning to some of the issues that the hon. Gentleman has raised this afternoon.

The court must be satisfied that the parents have consented, or that the parents' consent should be dispensed with on the grounds of the child's welfare. That is line with clause 1, which makes the child's welfare the paramount consideration in all decisions relating to adoption.

To reassure the hon. Gentleman about human rights compliance, it would be—

3.19 pm

Sitting suspended for a Division in the House.

3.34 pm

On resuming—

Jacqui Smith: I was in—full flight might be too strong a phrase—some sort of flow before we suspended.

Tim Loughton: Some sort of a flow chart.

Jacqui Smith: A flow chart—yes.

I was about to reassure the Committee about the court process—in relation to our discussion on clause 1—to dispense with parents' consent. The court will consider whether a placement order or an adoption order is in the child's best interest. It must give regard to all the factors in the checklist in clause 1(4) and conduct a cost-benefit analysis from the child's point of view. The welfare checklist specifically recognises the child's relationship with his parents and their ability to provide the child with a secure environment in which he can develop and that meets his needs. In accordance with clause 1(6), the court must consider alternatives to adoption and decide whether making an order would be better for the child than not doing so.

If the court decides that an order would be in the child's best interest and the parents give consent, the court must make the order. If the parents do not consent, the court must decide whether that consent should be dispensed with, which will be done only if the court is satisfied that the child's welfare requires consent to be dispensed with. When that judgment is made, the court must give regard to the parties' rights under the European convention on human rights and convention case law. The Bill is ECHR-compatible because the court has discretion and can weigh up rights in that situation. The hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned compatibility with article 6 of the convention. I hope that I can reassure him and address further issues that he raised about parents' consent.

In a agency case, the matter of birth parents' consent will have been dealt with at the time of application for an adoption order. The birth parents will either have consented to placement, with the safeguards and processes that we have discussed, or there will be a placement order. Such issues are dealt with early in the placement process to avoid the birth parents facing a fait accompli. Parents and guardians will be notified of the hearing unless advance consent is given. If they wish to oppose the making of the adoption order at that stage, they must seek the leave of the court, which may be granted only if there has been a change of circumstances. The door is, therefore, left open for cases in which the court is satisfied that there has been a significant change of circumstances.

Obviously, the circumstances of the case will influence whether there is an interpretation of change of circumstance. However, such factors that we envisage that would represent a change of circumstances are successful drug or alcohol rehabilitation or recovery from mental illness to allow the parent to care for the child, or the identification of a previously unknown natural father who is willing and able to provide a home for the child. Article 6 of the convention, therefore, is satisfied.

In placement order cases, there will be a court order to determine the parents' rights. In placement by consent cases, if the birth parents wish to oppose the making of the order, the court will decide whether they should do so. Article 6 is also satisfied in that instance. The court must give regard to the convention when making the adoption order.

The hon. Gentleman asked whether parents will be informed about the final adoption hearing, and they will. This morning, we discussed provisions in clause 126 that provide that parents must be informed about the final adoption hearing. They must be notified of the hearing and the agency must keep them informed of the stages of the process. That is set out in regulations. I hope that I have covered some of the hon. Gentleman's points. I have described the first of the three conditions in the clause.

The second condition is that the child has been placed for adoption through an adoption agency, either with consent, or under a placement order. In both of those cases, the birth parent can oppose the making of the final adoption order only with the leave of the court. That provision has been discussed, and concern has been expressed about it. A difficult balance must be struck between the stability and security of the child, the needs of the prospective adopters, and the needs of the birth parents. The provisions should reduce the number of contested final adoption hearings, which will provide greater stability for the child, and security for prospective adopters. That will benefit children and prospective adopters, by seeking to deal, as far as possible, with the issue of consent to adoption and placement for adoption at an earlier stage in the process, through the new placement provisions.

The benefit for birth families comes earlier in the placement process. We have discussed that. Where they do not consent to placement, there must be a court hearing, and a placement order must be made before the child can be placed. That is in contrast to the current position, where children in care may be placed for adoption without the consent of the birth parents, who can then find themselves faced with something of a fait accompli at the adoption order hearing, as the child might have been placed with the prospective adopters for several months. As I have emphasised, where a placement has been made with the consent of the parents, the parents are free to withdraw that consent until the moment when the application for the adoption order is made.

The third condition is that the child is freed for adoption by virtue of a pre-existing freeing order. One of those three conditions must be met for the court to be able make an adoption order.

Mr. Djanogly: I wish to address the issue of the child's consent, which has human rights implications. We discussed the matter in relation to clause 1. It is unfortunate—and symptomatic of the bizarre timetabling—that we were unable to speak about the matter in the context of placement, because, as the Committee has recognised, that is now the key stage. As that opportunity has gone by the wayside, it is important that we discuss the matter in the context of adoption orders.

Shortly after I raised the issue in debating clause 1, the Committee adjourned for lunch—

Mr. Henry Bellingham (North-West Norfolk): I did not have lunch. I had business to attend to.

Mr. Djanogly: Well; during lunch, I received a paper from the Adoption Law Reform Group, which has been briefly mentioned by my hon. Friend the Member for North Dorset. I want to refer to it again, as it addresses important issues that we have not adequately covered.

The Adoption Law Reform Group is linked with other bodies, such as the British Agencies for Adoption and Fostering and the National Organisation for Counselling Adoptees and Parents. Its paper states that the wishes and feelings of the child should be taken into account: any decision on adoption should involve the formal agreement of a child. It also notes that the adoption law review, in its report to Ministers of October 1992, recommended that the agreement of a child over the age of 12 should be required. The draft Bill of 1996 included such a provision.

The paper also states:

    ``the lack of a formal process for obtaining the child's consent runs the risk that insufficient weight will be attached to the child's views.''

Its specific suggestions are that,

    ``As a party to the proceedings, the child, subject to his or her age and understanding, should have the following opportunities: to consent to adoption; to refuse consent to adoption; to decline to give or refuse consent; to give full expression, with appropriate help, to his or her wishes and feelings in connection with the application.''

Finally, the paper states,

    ``In giving its decision the court should be required to explain how it has taken the child's wishes and feelings into account.''

3.45 pm

Liz Blackman (Erewash): Does the submission that the hon. Gentleman has just read out have regard, at any point, for the enormous pressure put on young people going through the adoption process by birth parents unduly pressurising them not to consent? The Minister mentioned the links that children continue to have with birth parents, even though there may have been significant abuse. Are those issues addressed?

Mr. Djanogly: Yes, indeed they are. The submission refers to the concern that

    ``it may place too painful a burden on the child to ask him or her to `sign away' the birth family.''

However, it states that, on balance, it is correct that the child has such rights. The child's rights are dealt with under the Human Rights Act 1998, and that will lead to problems in the future if we do not address the matter now.

Jacqui Smith: It might be helpful to respond to the point about consent. I have a problem with the hon. Gentleman's points with regard to the use that he makes of the understandable concern that is shared by all members of the Committee and the Government to ensure that the child's wishes and concerns are taken, recorded, listened to and represented to the court, and that there is a clear process for doing that. There is a distinction between that and the burden and pressures placed on a child by introducing into legislation a requirement for the child's consent to a placement and adoption order. I refer hon. Members back to some of the questioning in the evidence sittings last week, when we probed the extent to which some of those giving evidence felt, as we all do, that it is good practice that children's views should be gathered and represented to the court. The difference between that and introducing a requirement for consent, and the guilt that that would cause to the child—

 
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Prepared 29 November 2001