Mr. Djanogly: The hon. Lady has spoken at some length, which has been helpful. However, she has not mentioned what the child wants. Will she suggest whether the views of the child, which do not seem to be mentioned in the clause, should be relevant to the process? That is especially important in relation to subsection (5), because three years is a long time.
Jacqui Smith: I placed the interests and needs of the child at the beginning of my response. As has been suggested, we must bear in mind that agency placement may be appropriate if there is a strong desire and approval for it to be taken. We propose a reduction from 13 weeks to 10 to overcome some of the possible causes of delay that have been mentioned.
We believe that it is in the child's interests to ensure that, for something as significant as adoption, the child and the applicant have a proper opportunity to establish a relationship that will justify the making of an application to adopt. We believe that that extends also to relative applications. That is why the 1996 draft Bill proposed introducing a three-year residence requirement for non-agency adoption cases. That was generally supported in the consultation on the Bill. It is broadly consistent with the provisions of the Children Act governing applications for residence orders where anyone with whom the child has lived for three of the past five years is automatically entitled to apply. We believe that it is right that those periods should be brought into line. However, as with foster care applications, subsection (6) allows for the court's leave to be sought to make an earlier application, which will allow for cases where there is a particular reason why the general approach should not apply.
Members of the Committee are rightly concerned about safeguards. Subsection (7) provides that in any adoption case the court is not to make an adoption order unless it is satisfied that the adoption agency, or local authority if it is a non-agency case, has had a proper opportunity to see the child with the applicants in their home. That will ensure a proper assessment of the suitability of the adoption can be made.
I have made a compelling argument for the Government's belief that, in difficult adoption cases, one size does not necessarily fit all. The distinctions between agency and non-agency adoption routes need to be recognised, as do the different circumstances of various cases. I hope that the hon. Member for North Dorset will withdraw the amendment.
Mr. Walter: I was not—at least, I hope that I was not—suggesting that one size fits all. I had hoped that the amendments would convey to the Minister that a certain minimum time should be common across all cases. I hoped that good practice would probably indicate an appropriate time in particular cases, rather than prescriptive time limits being imposed that could lead to delay. In a quest for simplicity, amendment No. 25 would have extended the time from 10 weeks to 13. However, I freely admit that those three weeks would not make an awful lot of difference. I was more concerned about what I considered to be the excessive delays that might result from subsequent clauses, and that prompted my subsequent amendments.
I accept the distinction that the Minister made between agency and non-agency cases—that was perfectly clear in the Bill—but I am not convinced by what she said about foster parents. I am not sure that the clause necessarily permits what she suggests. Subsection (4), which I sought to amend, states:
``If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.''
It does not say ``if the applicants are foster parents and the child is an agency case''. It merely states
``if the applicants are . . . foster parents''.
If the court were interpreting that, it would say that the application must be delayed for a year. In that sense, it is bad law.
I ask the Minister to reconsider the wording of that subsection, because it does not make the distinction in the case of foster parents between agency and non-agency cases. To be slightly mischievous, I wonder whether there is a sub-plot to try to deter foster parent adoptions because there is a shortage of foster parents and it is not in the local authority's interests to encourage foster parents to adopt children who are placed with them because they are then permanently removed from the pool of foster parents.
We have had a good discussion on the subject. I am not entirely comfortable with the answers that have been provided, but I hope that we have rehearsed the arguments in favour of simplicity in the interests of the child. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 ordered to stand part of the Bill.
Clauses 42 to 44 ordered to stand part of the Bill.
Conditions for making adoption orders
Question proposed, That the clause stand part of the Bill.
Tim Loughton: Before we motor through this raft of clauses, perhaps we could pause for a breather and ask the Minister to elaborate on the intentions behind the clause, which deals with the conditions for making adoption orders. I probe along the lines of the submission that we were given by the Family Rights Group, which raised serious questions about the compatibility of parts of the clause with the European convention on human rights, an important measure that now dominates every Government measure, with the result that some cases have ended in tears.
The clause provides that parents will not be able to oppose an application for an adoption order when they have given advanced consent or a placement order has been made, unless the court gives such leave. One of the conditions, in subsection (7), is dependent on a change of circumstances.
The explanatory notes give a rather vague example of someone who has a drink or drugs problem. The Family Rights Group is worried that the provisions in the clause will mean that in the vast majority of cases parents will not have their consent to adoption, as opposed to placement, considered, and are therefore unlikely to receive funding from the Legal Services Commission to be heard in the adoption proceedings. Indeed, there is no obvious mechanism by which they will even be informed of the forthcoming adoption hearing, a point that relates to our deliberations this morning.
According to the Family Rights Group, the consequence of that is that birth parents may not know that they can apply for the court's leave to have their consent considered when there has been a change of circumstances. Another consequence is that birth parents are unlikely to be in court to argue about issues of continuing links between the child and the birth family network and whether another order should be made instead of an adoption order, as provided for in clause 1. A further consequence is that a birth relative who wants to care for, or request continuing links, with the child may not know about the adoption hearing, thereby rendering hollow the provisions in clause 1(4)(f). That echoes some of the points that I made this morning about the need to ensure that everyone is fully informed and has every opportunity to make representations if they disagree with how the proceedings are going ahead.
Despite the fact that the moniker of the Secretary of State is on the front of the Bill to say that it complies with the ECHR, the Family Rights Group specifically draws attention to article 6 of the convention, which states:
``In the determination of his civil rights and obligations . . . everyone is entitled to a fair . . . hearing within a reasonable time before an independent and impartial tribunal established by law.''
The group makes the case that the article clearly applies at the adoption, as well as the placement order, stage, because an adoption order determines the parents' civil rights to exercise their parental responsibility and to continue to have a legal relationship with their child. If they have no right to be heard at the adoption hearing unless they can prove sufficiently a change of circumstances—a highly discretionary term—the court will not, effectively, grant them the right to be heard. They will therefore be denied a fair hearing, and that seems to contravene article 6.
Article 8 of the convention states:
``Everyone has a right to respect for his private and family life . . . There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of . . . the protection of health or morals or for the protection of the rights and freedoms of others.''
Again, the Family Rights Group submits that
``the severance of the parent-child legal relationship constitutes an interference with this right, both for the parent and the child. In order for it to be deemed `necessary in a democratic society' by the court, we suggest that, the parent should be present and have a right to be heard on the issue of whether another kind of order, for example under the Children Act, may more adequately promote the child's welfare.''
Mr. Hilton Dawson (Lancaster and Wyre): Does that not make the point that it is important for the parent to be heard at every stage, in particular at the placement order stage, when fundamental issues are involved, and, I hope, earlier in the proceedings?
Tim Loughton: The hon. Gentleman is right; that reinforces my point about keeping everyone informed throughout the process. There seems to be an inconsistency between the placement stage and the adoption hearing stage. There may be reasons for that inconsistency, and I am waiting to be enlightened by the Minister on that score. I should also like her assurance that in light of the FRG submission, which I trust that the Government have read, they do not envisage a challenge under article 6 or 8 of the European convention on human rights.