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|ADOPTION AND CHILDREN BILL|
These notes refer to the Adoption and Children Bill
ADOPTION AND CHILDREN BILL
1. These explanatory notes relate to the Adoption and Children Bill as introduced in the House of Commons on 15th March 2001. They have been prepared by the Department of Health to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. In December 2000 the Government published a White Paper on adoption (Adoption - a new approach; Cm 5017). This set out the Government's plans to promote greater use of adoption, improve the performance of adoption services, and put the needs of children at the centre of the adoption process. The White Paper built on the proposals of the Prime Minister's Adoption Review, which were published for consultation in July 2000 (Prime Minister's Review: Adoption; Performance and Innovation Unit, July 2000). The White Paper included a commitment to introduce new adoption legislation in 2001.
4. The purpose of this Bill is to reform adoption law, to implement the proposals in the White Paper which require primary legislation, and to underpin the Government's programme to improve the performance of the adoption service and promote greater use of adoption. The Bill builds on and incorporates the proposals to update adoption legislation set out in the draft bill published for consultation in 1996 (Adoption - A Service for Children; Department of Health and Welsh Office, March 1996), which were themselves the product of the Review of Adoption Law; Department of Health and Welsh Office, October 1992, and the White Paper - Adoption: The Future; Cm 2288, November 1993.
5. In summary, the Bill:
6. The White Paper set out the Government's proposals to encourage wider use of adoption, particularly of children looked after by local authorities. Each year there are about 4,000 adoptions in England and Wales. Around half of all adoptions are for children who have been looked after by local authorities. The Government has set a target of a 40% increase in adoptions of looked after children in England by 2004/5. The measures to improve adoption support included in the Bill are intended to encourage more people to come forward to adopt and to help adoptive placements to succeed. The Bill places a duty on local authorities to make arrangements for the provision of adoption support services, according to arrangements to be set out in regulations. It also provides all new adopted children and adoptive parents with a new right to request an assessment of their needs for adoption support services. The assessment will link in with other local authority functions and local education authority and heath services where the needs for such services are identified, with the aim of identifying a co-ordinated package of support to help adoptions succeed.
7. To encourage more people to apply to adopt and to build confidence in the assessment process the White Paper committed the Government to provide an independent review where prospective adopters consider an adoption panel has turned down their application unfairly. The Bill includes powers enabling the appropriate Minister to establish a mechanism to review adoption agency determinations. The appropriate Minister will be able to appoint an independent body to review, at prospective adopters' request, applications that adoption agencies have indicated they are minded to turn down.
8. The Bill also includes measures intended to tackle delays in the adoption process. It makes express provision to enable the Secretary of State to establish a National Adoption Register for England and Wales to suggest matches between children waiting to be adopted and approved prospective adopters. The Register is intended to reduce delay both for adopters and children. The Bill includes measures requiring courts to draw up timetables for resolving adoption cases without delay, and to give directions to ensure the timetable is adhered to.
9. The Bill changes the process of adoption itself. The Government believes that the needs and welfare of children should be at the centre of the adoption process. The Bill makes the welfare of the child the paramount consideration for courts and adoption agencies in all decisions relating to adoption, including in deciding whether to dispense with a birth parent's consent to adoption. It provides a welfare checklist which must be applied by the court and adoption agencies. The paramountcy test brings adoption legislation into line with the Children Act 1989.
10. The Bill establishes new legal processes for placing a child for adoption through an adoption agency. Two routes are provided: birth parents may give consent to placement or the adoption agency may secure a placement order from the court, authorising it to place a child with adopters whom they select. An adoption agency must apply for a placement order where it is satisfied that a child should be adopted, but the parents do not consent to placement or have withdrawn such consent. The placement provisions build on and implement the recommendations of the Adoption Law Review (see paragraph 4).
11. The intention is to ensure decisions about whether adoption is the right option for the child, whether the birth parents consented and, if not, whether parental consent should be dispensed with are taken earlier in the adoption process than at present, with court involvement where necessary. The system aims to provide greater certainty and stability for children by dealing as far as possible with consent to placement for adoption before they have been placed; to minimise the uncertainty for prospective adopters, who possibly face a contested court hearing at the adoption order stage; and to reduce the extent to which birth families are faced with a 'fait accompli' at the final adoption hearing.
12. The Government promised in the White Paper to develop a new legal option called 'special guardianship'. This is intended to meet the needs of children for whom adoption is not appropriate, but who cannot return to their birth parents and could benefit from the permanence provided by a legally secure family placement. For example, some older children (who may, for instance, be being looked after in long term foster placements) do not wish to be adopted and have their legal relationship with their parents severed, but could benefit from greater security and permanence. Adoption may also not be the best option for some children being cared for on a permanent basis by members of their wider family. Some ethnic minority communities have religious or cultural difficulties with adoption in the form provided for in the law of England and Wales.
13. The Bill amends the Children Act 1989 to provide for the new special guardianship order. It sets out who may apply for an order, the circumstances in which orders may be made and their nature and effect. Special guardians must be aged 18 years or over. Joint applications for special guardianship may be made and people applying jointly need not be married. The court may also make special guardianship orders in any family proceedings if it considers an order should be made. In each application the local authority must assess the suitability of the applicants and prepare a report to the court. Unlike an adoption order, a special guardianship order may be varied or revoked by application, but only in limited circumstances.
14. A special guardian acquires parental responsibility for the child and may exercise it to the exclusion of others with parental responsibility, except in very exceptional circumstances. The intention is that, in order to provide the child with the stability he needs, the special guardian has clear responsibility for all the day to day decisions about caring for the child or young person and for taking the decisions about his upbringing. But, unlike adoption, the child's legal relationship with his birth parents is not severed. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent, or not, to the child's placement for adoption or adoption. The Bill will include some measures to provide support arrangements for young people subject to special guardianship orders. The Government intends to add these during the passage of the Bill to ensure that special guardians have access to a range of support services.
15. The Bill reaffirms existing safeguards under the Adoption Act 1976 that allow only adoption agencies to make arrangements for adoption, and advertise about adoption. This includes advertising about adoption through traditional media and electronically. The Bill includes a general defence for those who are not aware that the content of the information is prohibited.
16. The Adoption (Intercountry Aspects) Act 1999 provides a statutory basis for the regulation of intercountry adoption. It enables the United Kingdom, as respects England and Wales and Scotland, to ratify the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, which was concluded at the Hague on 29 May 1993 ("Hague Convention"). Section 14 also inserts section 56A into the Adoption Act 1976 which makes it an offence to bring children into the United Kingdom without following prescribed procedures. Section 56A is reflected in clause 70 of the Bill. The Government is also considering what other safeguards could be applied to intercountry adoption, and it may put forward further proposals for inclusion in the Bill as it goes through its Parliamentary stages.
17. The Bill replaces the Adoption Act 1976 and reforms the existing legal framework for domestic and intercountry adoption in England and Wales. It also consolidates the Adoption (Intercountry Aspects) Act 1999. In the 1999 Act, sections 1 and 2 (regulations to give effect to the Convention and Central Authorities) and section 7 (amendments to the British Nationality Act 1981) and Schedule 1 (the text of the Hague Convention so far as material), are to continue in force for England and Wales, as well as Scotland. The remaining provisions as respects England and Wales will cease to apply in England and Wales and will instead be incorporated into the Bill. Some parts of the Bill extend to Scotland and Northern Ireland. The Bill will affect all adoptions and arrangements for adoption of children in England and Wales and all adoption applications from persons resident and settled in England and Wales who seek to adopt children living abroad. The current mutual recognition of adoption and cross border placement for adoption between England, Wales, Scotland and Northern Ireland will continue.
18. The Bill has three Parts:
19. The Bill contains five Schedules:
COMMENTARY ON CLAUSES
Part I - Adoption
Chapter I - Introductory
Clause 1: Considerations applying to the exercise of powers
20. Clause 1 is an overarching provision. It introduces principles already in the Children Act 1989. It applies whenever a court or an adoption agency (a local authority or a registered adoption society) has to make a decision in relation to the adoption of a child, as defined in relation to a court in subsection (7). It includes any decision by the court whether or not to dispense with parental consent. The paramount consideration of the court or agency is the child's welfare, throughout his life (subsection (2)). This brings the welfare test into line with that in the Children Act 1989. The court or agency must bear in mind that in general any delay is likely to prejudice the child's welfare (subsection (3)). A welfare checklist is set out in subsection (4) and must be applied by the court or agency in determining the best interests of the child. It includes the child's ascertainable wishes and feelings about being adopted (having regard to his age and understanding), his particular needs (for example, physical or educational) and the relationship he has with his relatives, including whether they can provide him with a secure home. ('Relative' includes the child's mother and father - see subsection (8)). Subsection (5) provides that in placing a child for adoption, the agency must consider the child's religious, cultural and linguistic background. The court or agency will have to consider the whole range of powers available to it in the child's case under the Bill and the Children Act 1989 and a court may only make an order where it considers that it would be better for the child than making no order (subsection (6)).
Chapter II - The Adoption Service
21. Chapter II makes provision for the structure of the adoption service. Some of the clauses re-model provisions of the 1976 Act. However, this Chapter also contains some important areas of new policy dealing with adoption support services (which may include financial support) and independent reviews of qualifying determinations (see clause 9). Registration of voluntary organisations which are adoption societies is already undertaken by the registration authority (the National Care Standards Commission in England, and the National Assembly in Wales) under Part II of the Care Standards Act 2000. Only limited provision is therefore required in respect of registration issues.
Clause 2: Basic definitions
22. Clause 2 sets out some basic definitions including the definition of an "adoption society" and "registered adoption society" and states that the references in the Chapter to adoption are to the adoption of persons wherever they may be habitually resident effected under the law of any country or territory. It also provides that services provided under clause 3(1) are to be known as "the Adoption Service".
Clause 3: Maintenance of Adoption Service
23. Under clause 3, each local authority must continue to provide within their area an adoption service, designed to meet the needs of children who may be adopted, their parents and guardians, persons wishing to adopt a child and adopted persons, their parents, natural parents and former guardians. Facilities must include making arrangements for the adoption of children. (This phrase is defined in clause 106). Facilities must also include making arrangements for the provision of adoption support services. In addition to the duty to make arrangements for the provision of adoption support services to the above categories of persons, subsection (3) gives local authorities a power to make arrangements for the provision of adoption support services to any other person.
24. Local authorities may meet their obligation to provide services by ensuring that they are provided by a registered adoption society or such other persons as may be specified in regulations. Subsection (5) provides that facilities of the adoption service must be provided in conjunction with other local authority social services and that facilities must be provided in a co-ordinated manner. Where a child is outside the United Kingdom or the child is brought into the United Kingdom in breach of prescribed restrictions, subsection (7) provides that regulations may be made enabling the local authority to make charges for the provision of facilities under this section. The Secretary of State may only make regulations under this subsection after consultation with the National Assembly for Wales.
25. Subsection (8) provides that adoption support services include counselling, advice and information in connection with adoption. Regulations will set out what other services are to fall within this definition and may include provision of financial support.
Clause 4: Assessments etc for adoption support services
26. A local authority must, under clause 4, carry out an assessment of the needs of a child who has been adopted after this clause comes into force, the parents of such a child and any other person of a prescribed description. It is envisaged that the regulations will be used to extend the right to an assessment to a child placed for adoption, in order to help him settle into his new family, and to the prospective adoptive parents of such a child. Regulations made under subsection (8)(a) may set out the circumstances in which the prescribed categories of person are to have a right to request an assessment. The local authority may also carry out an assessment of the needs of any other person for adoption support services. Local authorities may call upon the expertise of registered adoption societies to assist in the preparation of assessments. Under subsection (4), where a person's needs for adoption support services are identified in an assessment, the local authority may provide adoption support services to that person. Where a decision is taken to provide services the local authority must then prepare and keep under review a plan for provision of services. The right to request an assessment only applies until the adopted child is 18 (subsection (6)). Thereafter, the person's initial request is subject to the local authority's discretion under subsection (2). Where a plan is in place when the adopted child reaches 18 the obligation to keep the plan under review does not end at that date.
27. Subsections (7) and (8) provide a power to make provision in regulations about the carrying out of assessments including considerations to be taken into account, preparing and reviewing plans and the provision of services in accordance with plans. Regulations may also set out when services may be provided subject to conditions and the consequences of failure to comply with any such conditions. It is anticipated that regulations will enable local authorities to specify that financial support must be spent on specified items or services and that sums given may be recouped where they are not spent for the specified purpose.
28. An assessment under this provision may be carried out at the same time as an assessment of that person's needs under the statutory provisions listed at subsection (9). If at any time during the assessment it appears to the authority that the person may need NHS services or services which are provided by the local education authority, the authority must notify the Health Authority, Primary Care Trust or the local education authority.
29. Subsections (11) and (12) impose a duty upon local authorities to co-operate in the exercise of functions under this clause if it is consistent with the exercise of their functions.
Clause 5: Local authority plans for adoption services
30. Clause 5 imposes a duty upon local authorities to prepare and publish a plan for the provision of the adoption service in their area. The plan must contain information of a prescribed description and must be published by a local authority in a form and manner and at a time to be set out in regulations. There is a duty to consult persons falling within a prescribed description. A direction may be given by the appropriate Minister that the plan be included in a document specified in the direction. There is power to make regulations relating to review, modification and substitution of plans. The obligations set out in these regulations are subject to any specific requirement made in a direction given by the appropriate Minister. A direction may be given to a particular local authority, a class of local authorities or local authorities generally and may modify the obligations set out in the regulations. It is envisaged that these powers might, for example, be used to facilitate the production of a tailored plan where an authority are working with the recently established Adoption and Permanence Taskforce.
Clause 6: Arrangements on cancellation of registration
31. Clause 6 empowers the appropriate Minister, where an adoption society is no longer registered under Part II of the Care Standards Act, to direct that society to make appropriate arrangements for the transfer of its functions relating to children.
Clause 7: Inactive or defunct registered adoption societies etc.
32. Clause 7 empowers the appropriate Minister to direct the relevant local authority to take action, where a registered adoption society is inactive or defunct or has ceased to be registered under Part II of the Care Standards Act, and it has not made such arrangements for the transfer of its functions relating to children as are required; it also enables the appropriate Minister to charge the society for the expenses necessarily incurred by him or on his behalf because of its failure to make appropriate arrangements.
Clause 8: Regulation of adoption agencies
33. Clause 8 enables regulations to be made in respect of local authorities and voluntary adoption agencies (as defined in subsection (1)(b)). Subsection (1) provides a general power to make regulations for any purpose relating to the exercise by them in respect of their functions in relation to adoption under the Bill. Subsections (2) to (5) amplify this. Subsection (2) provides for regulations to be made in key areas to ensure that they are suitably managed, staffed and equipped, that their premises are fit for purpose and that adequate arrangements are made for the keeping of records and documents.
34. Subsection (3) provides that regulations may be made prohibiting a person's appointment to a prescribed post unless they are on a register of social care workers maintained under section 56 of the Care Standards Act 2000.
35. Subsection (4) gives power by regulations to provide that voluntary adoption agencies are to be managed by persons who are fit to do so and for the health and welfare of children to be adequately protected. It also provides for imposition of financial requirements and for the appointment of a manager in prescribed circumstances.
36. Subsection (5) gives the appropriate Minister power to make provision as to the conduct of a voluntary adoption agency, including the provision of facilities and services, the keeping of accounts, notification of events, changes in the person managing the agency, any arrangements for periods when the manager is absent, changes of ownership and arrangements for dealing with complaints.
37. Subsection (7) enables regulations to be made under this provision to provide that a person who breaches them commits an offence and is liable on summary conviction (prosecuted in the magistrates' court) to a fine not exceeding level 5 on the standard scale.
Clause 9: Regulation of adoption agencies: independent review of determinations
38. Clause 9 provides for the establishment of a review procedure. A person in respect of whom a determination specified in regulations has been made may apply to a panel established by the appropriate Minister for a review of the relevant determination. It is intended that the regulations will provide a right to request a referral to this panel where an adoption agency indicates to an applicant that it is minded to turn down his application for approval as an adopter.
39. Regulations may be made under subsection (3) dealing with the duties and powers of the panel, administration and procedures, appointment of panel members, payment of expenses, the duties of adoption agencies in connection with reviews and for monitoring reviews.
40. Subsection (4) enables the appropriate Minister to delegate functions in relation to the panel to an organisation to perform on his behalf and subsection (6) enables the appropriate Minister to make payments to that organisation. Under subsection (5) the organisation must perform its functions in accordance with any general or special directions which the appropriate Minister may give. An organisation is defined as a public body or a private or voluntary organisation.
|© Parliamentary copyright 2001||Prepared: 21 March 2001|