Adoption and Children Bill

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Mr. Djanogly: Is it the Government's intention to set time limits?

Jacqui Smith: It is the Government's intention to consult on the basis on which the review should work. I believe that subsection (3)(a) and (b) contains the power to establish time limits. It is appropriate to establish in regulations or in another form the time limits that should be maintained in the independent review process. We shall consult on and be able to use the powers in subsection (3)(a) and (b) to make regulations if it is appropriate to establish maximum time limits. On that basis, I hope that the hon. Gentleman will feel able to withdraw his amendment.

Mr. Djanogly: I thank the Minister for her clarifications. I shall seek leave to withdraw the amendment, but I note that we will debate under amendment No. 82 whether there should be a panel. In

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fact, we have had that debate. I suggested that the Bill should say that there must be a panel, but the Minister successfully argued that it does not have to say that. I cannot see how a panel could be constituted without regulations, which is why I thought that the wording should be ''shall'' rather than ''may'', but I accept the Minister's explanation.

As for amendment No. 83, I thank the Minister for making it clear that powers exist to establish time limits. It would have been nice to have confirmation that the Government will establish those time limits, even if they intend to consult in the meantime to determine their exact nature. None the less, in view of the Minister's comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 49, in page 9, line 43, after second 'an', insert 'independent'.

The Chairman: With this it will be convenient to discuss amendment No. 50, in page 9, line 44, after second 'the', insert 'independent'.

Tim Loughton: The amendments are probing amendments relating to arrangements that the Minister may make with an organisation under which the panel's functions are performed. We merely wish to explore the independence of the organisation asked to perform that role. It is essential that anyone asked to make a determination for the panel is at arm's length from those who have an interest in the proceedings. Neither the Bill nor the explanatory notes make it clear what arrangements will be made in that respect. Will the Minister assure us of the organisation's independence?

Jacqui Smith: Subsection (4) enables the appropriate Minister to delegate the operation of the independent review mechanism to an organisation, which will help to ensure the independence of the review mechanism. I cannot say to which organisation that is likely to be delegated—that decision will be taken further down the track. However, if the hon. Gentleman merely seeks reassurance that the clear objective is to ensure that the review mechanism is independent, I can give him that assurance. The objectives that we have set down would not be fulfilled were that not the case. Subsection (8) provides that the organisation may be a ''public body'' or a ''private or voluntary organisation'', and subsection (6) provides that the appropriate Minister may make payments to the organisation running the review mechanism.

I hope that the hon. Gentleman understands that his amendments are unnecessary. In the White Paper, we promised to develop the independent review mechanism and explained that an independent body would operate it. The clause gives us the ability to achieve that objective and delegate the operation of the independent review mechanism to an independent body to meet the White Paper commitment. That is clearly the Government's intention.

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Tim Loughton: As I said, this is a probing amendment. With so much of the consultation yet to come, the cart is often put before the horse and we discuss matters the full details of which neither we nor the Minister know. However, it was worth putting on record that the independence of the organisation is a key factor, and we look forward to the Minister assuring us of that when the final details come out in the wash. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Djanogly: I beg to move amendment No. 140, in page 10, line 11, at end add—

    '(9) Subject to subsection (10), where, on application to a panel constituted by the appropriate Minister under this Act, the panel makes or refuses to make a decision, an appeal shall lie to the High Court.

    (10) Where an application is made to a panel constituted by the appropriate Minister under this Act, and the panel considers that the matter is one which would more conveniently be dealt with by the High Court, the panel shall refuse to make a decision on the matter, and in that case no appeal shall lie to the High Court.

    (11) In circumstances where an application to a panel concerns a child, then that child shall be a party to the proceedings of the panel unless the child has consented to waive his or her rights to be a party.

    (12) Every person who is to be directly relevant to or affected by the decision of a panel shall be a party to the proceedings of the panel unless such a person has consented to waive his or her right to be a party.

    (13) A panel shall be convened to review a qualifying determination not later than three months following a request by a person who was directly relevant or affected to or by the decision of the panel.

    (14) The reasonable costs and expenses of the application to the panel or of any appeal to the High Court of the child and any organisation who is a party to such proceedings shall be paid by the appropriate Government Department.

    (15) The reasonable costs and expenses of a successful application to the panel or of any successful appeal to the High Court of any person, other than a person set out in subsection (14), shall be paid by the appropriate Government Department.'.

Many clauses—not all—restate provisions that have been in force for some time under the Adoption Act 1976, but several new procedures and issues are introduced by the Bill, including the paramountcy of the child's interests, the concept of special guardianship and the panel itself. As a result, plenty of room will be left for legal interpretation after the provisions are brought into operation.

The important point that I want to consider is the composition of the panel. The hon. Member for Meirionnydd Nant Conwy addressed that point, but I am not sure that the Minister answered the question of who would serve on the panel. I very much doubt that it will comprise a selection of High Court judges. Will it comprise a selection of justices of the peace who practise family law, a collection of retired social workers, or a mixture of all those people? The constitution of the panel will be important to the way in which the panel will work and the extent to which the legal side of the panel can be applied in practice.

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It is highly likely that issues will come before the panel that are of a technical or legal nature and that leave a lot of room for legal interpretation. In such cases, applicants to the panel should have a right to appeal to the High Court. Proposed subsection (10) regards the matter from the other side, in that the panel might feel that an issue would be more appropriately dealt with by court judgment than by itself. Proposed subsections (9) and (10) would provide for that.

Subsection (11) returns us to the heart of the Bill. The child should come first, but the detail of the clause belies that intention and safeguards for the child are relatively few. The constitution of the panel should in some way involve children, and in all cases children should have the right to be party to the proceedings unless they have decided to waive their rights to representation. Subsection (12) takes that concept further. Although a child may always be interested in some way, that may not necessarily be the case for another party: for instance, a prospective adopter may want to appeal against not being allowed to adopt.

Kevin Brennan (Cardiff, West): Does the hon. Gentleman not accept that introducing such a procedure would delay the process even more, and is he not confusing a review of a decision and a legal appeal against it, which is not envisaged in the clause?

Mr. Djanogly: The proposed new subsections deal with both the panel stage and the High Court stage. However, the hon. Gentleman makes an important point. The Bill should highlight the paramountcy of the child, but the intention of clause 1 is not applied in the nitty-gritty of the clause; I have said time and again that its mechanics do not work in practice, and that is what I am highlighting now. For instance, if a prospective adopter wishes to appeal against not being allowed to adopt, the child should have the right to be a party to the hearing. That should not be so for the natural parents.

Mr. Shaw: The hon. Gentleman has referred time and again to consulting the child, and under this clause he has spoken of the child consenting to waive his or her right to be a party to proceedings. The average age of children when they are adopted is three or four; rarely are they as old as 13, 14 or 15 when, under the Gillick principle, they would be able to determine a decision for themselves. As the Minister said, the Bill already deals with involving children. The idea that children whose average age is three they should be consulted left, right and centre is ridiculous. It would be time consuming and build in further delay.

Mr. Djanogly: I heartily thank the hon. Gentleman for that intervention. He makes an important point. How can a child be represented? The answer is that the child may deserve legal representation. I do not agree with him that a two, three or four-year-old child would not have an opinion.

 
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