Adoption and Children Bill

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Ms Rosie Winterton: As the hon. Gentleman says, clause 97(2)(a) prohibits the appointment as CAFCASS officer in a case involving a placement order of a person employed by the local authority that is making the current application. The intention is to prevent conflicts of interest such as a self-employed guardian acting on behalf of a local authority that is involved in a case as well as on behalf of the child. The amendment would extend the category of persons who may not be appointed to include any person employed by any local authority that has ever had the care of the child involved. That would prevent not only current conflicts of interest, but also any suspicion that a children's guardian might be overly influenced by a connection with a local authority that was previously involved in the case.

One of the purposes of the current Bill is to align practice in adoption and care cases more closely. It is noticeable that a wider restriction applies in care cases than is currently contained in the Bill.

Mr. Jonathan Djanogly (Huntingdon): I am interested in hearing the Parliamentary Secretary's opinion on a matter related to conflicts of interest. Reading subsection (1)(b), it appears that the same person could act for the child and also act effectively as an adviser to the parents who are giving their consent. Is that not in itself a conflict of interest and does the Bill address that conflict?

Ms Winterton: There may be instances in which there has been a relationship between the two but I will come back to that point.

As I was saying, one of the purposes of the Bill is to align practice in adoption and care cases more closely. It is noticeable that a wider restriction applies in care cases than is currently contained in the Bill. Rule 4.10 (7) of the family proceedings rules prohibits the appointment as guardian ad litem of anyone who has been employed by a local authority and involved in arrangements for the child during the previous five years. If there was any conflict of interest, as in the case that the hon. Member for Huntingdon (Mr. Djanogly) raises, that person would not be allowed to act in any way. The role of the guardian ad litem is to protect the interests of the child; therefore, if a person were acting for any other party, there would be a conflict, and that would be ruled out.

Mr. Djanogly: For clarification, is the Parliamentary Secretary saying that the conflict would be ruled out somewhere in the Bill, or under another piece of legislation? She mentioned guardians ad litem but I thought there were no such things anymore.

Ms Winterton: I am sorry—I am using out-of-date language. There is usually no need for a children's guardian in a case where the parent agrees to the adoption. In such cases there would be a reporting officer to the court as opposed to the child's interests being separately represented by a guardian; the whole issue would be dealt with by a reporting officer. In some cases the children's guardian will also report on the child's interests: if the children's guardian perceives a conflict of interest a different officer will be appointed.

The amendment goes too far in excluding anyone connected with a local authority that was previously involved in the case, however remote that period and whether or not that individual has ever had any personal connection with the case. However, I am certainly not unsympathetic in principle to the amendment. If the hon. Gentleman agrees to withdraw it, I undertake to consider the matter further to establish whether tightening up the provision to bring it more into line with other provisions is possible. If that is deemed appropriate after consultation, the Government will table an amendment at a later stage.

Tim Loughton: I am on a roll: that is two hits, and with the next amendment standing in my name, I might be ambitious and go for a hat trick. Before in-flight refuelling, the Minister said that the amendment would place impossible limits on anyone working in local authorities. That is why I added the caveat that the Minister might like to reconsider the matter in the light of a time exemption or restriction to a certain number of authorities. My hon. Friend the Member for Huntingdon raised further important considerations about potential conflicts. The Minister has promised to look again and she is ''certainly not unsympathetic''—a positive statement in a negative sort of way—so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): I beg to move amendment No. 136, in page 52, line 9, at end insert—

    '(5) The Service shall lay an annual report before Parliament dealing with its performance, staffing and all matters relating to the exercise of the functions bestowed upon it by this Act.'.

CAFCASS is one of the most important aspects of the Bill. If the Bill is to succeed, the service must succeed. Over the weekend I discussed the issue with a senior circuit judge in north Wales, a family court judge. He was genuinely fearful of the headlong rush to set up CAFCASS and he condemned the treatment of the guardians—whether ad litem as was, or children's as now. A time bomb could be lying in the Bill. If the service fails, the Bill fails: it is as simple and obvious as that.

Guardians ad litem were introduced to provide fully independent people to protect the interests of children. They fulfilled that role through the provision of detached, objective assessments and expert advice on child care matters to the courts. That has been the position since 1984. As a practitioner, I know how heavily lawyers and the courts depend on their independence and expertise. They are clearly a core service in the whole scenario.

It is sometimes said, ''Why try to repair what has not been broken?'' An allied problem is whether to bring the official solicitor, the guardians and court welfare officers together under one roof. That potentially poses a great conflict of interests, to which the Minister referred earlier. They have wholly different functions, yet now fall under one particular roof. Nothing is more likely to ensure the Bill's success than the guardians' independence of mind. We must preserve their expertise and continue to rely on those who have worked in the field over the past few years.

5 pm

We all know that securing the best interests of children must be the driving force in every case. Without the good offices of guardians and the best possible level of advice, we will fail the children. That shows how vital the guardians are. They face considerable pressure because there are too few of them to carry out the necessary work, which can be hard and stressful. They frequently undergo emotional stress. Guardians often have to issue advice that they know will be highly unpopular, but they will always be driven by what is best for the child or young person in all the circumstances.

The dispute between guardians and the new service, CAFCASS, has been mentioned. CAFCASS faces three distinct problems: the dispute with children's guardians; the fact that the service is already over budget; and the fact that its chief executive is suspended, which does not augur well. The Minister quite properly mentioned earlier that some of the guardians' difficulties could be overcome through consultation, but their treatment by CAFCASS was improper and unreasonable. CAFCASS is one step removed from the Government, so I am not levelling oblique criticisms at the Minister or the Department. I echo the words of the senior judge to whom I spoke over the weekend in saying that the headlong rush to CAFCASS might well prove to be a mistake. We shall have to reflect at leisure later. Because we are dealing with the lives of children and young people, it may, unfortunately, have far-reaching consequences.

The Parliamentary Secretary will know that, over summer last year, CAFCASS decided to ensure that all guardians under its auspices were employed by the service. Most, if not all, experienced guardians had been self-employed and many would tell the Committee that that was one of the safeguards of their independence. An application for a judicial review was made to the Family Division of the High Court. Lord Justice Scott Baker came out heavily against CAFCASS for not allowing the guardians a reasonable period to reply to the short consultation initiated. The subsequent exodus of distinguished guardians is the one thing that the service cannot allow.

The judge said:

    ''The children whom guardians represent are 'among the most vulnerable in society'.''

The judge emphasised that

    ''guardians must be both independent and be seen to be independent, have the authority to be able to make often unwelcome recommendations, and be able to withstand pressure from Local Authorities and other parties. Therefore the impending loss of vast numbers of experienced guardians was 'a serious position, which needs to be remedied quickly.' ''

He went on to say that

    ''the present dispute is entirely unhelpful to the Family Justice system.''

Those would be strong words in any High Court judgment. He said:

    ''The current position has been brought about by CAFCASS because of its conduct, and that of the Project Team before. It is greatly to be hoped that relations could be improved. They will have to be if the service is to fulfil its responsibility to children.''

The judge went on to say:

    ''CAFCASS has alienated the very people it needs, if it is to discharge the responsibilities that Parliament entrusted it with.''

He criticised CAFCASS

    ''among other things, for its poor communication skills, for delays in communicating its decisions to Guardians, and for ignoring his own request that negotiations take place to resolve this issue. The Court cannot tell CAFCASS how to run the service, however much it may fear for the future. Critical decisions on the nature of the service, and how it is funded, are political, and it is at this level that pressure must be brought to bear if the 'impending disaster' . . . is to be averted.''

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