Mr. Walter: I declare an interest in that I might benefit from the application of the provision, as I am a step-parent of a child, without parental responsibility, in the very circumstances set out by the clause. I want
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to probe the Parliamentary Secretary, because proposed new subsection (1)(b) states that
''the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.''
That is the alternative to proposed new subsection (1)(a), which states that
''may by agreement with the step-parent provide for the step-parent to have parental responsibility''.
If the estranged birth parents decided for reasons that might in certain circumstances be vindictive that they objected to the arrangement, would the court get involved in lengthy litigation and debate among the three parties about the merits and demerits of the application, which might be detrimental to the child's welfare? Will the Parliamentary Secretary gives us some idea of what criteria she envisages the court applying?
Ms Winterton: I am glad to be supported on the clause, which hon. Members on both sides of the Committee have welcomed. It is true that the adoption law review recommended that the law be changed to enable step-parents to acquire parental responsibility. The provisions also have the advantage of not removing parental responsibility from the other birth parent and do not, therefore, legally remove the child's membership of that birth parent's family. That is important, given that we have spoken throughout about what is in the child's best interests.
Mr. Djanogly: Will the Parliamentary Secretary clarify the position on probate? Could a child have three or four parents and inherit from them all?
Ms Winterton: I shall come to that when I have discussed the hon. Gentleman's point about taking the child's views into account.
The provisions will apply the principles of the Children Act. In practice, the court will apply the welfare checklist. In some instances—where the child is a baby, for example—it may not be possible to take their views into account. None the less, the welfare checklist will include the child's wishes and feelings, and the court will be able to appoint an officer of the Children and Family Court Advisory and Support Service to report on the child's views if that is felt to be appropriate.
I want to mention two other issues. First, it is open to a natural parent to oppose the granting of parental responsibility to a step-parent in court. As the hon. Member for North Dorset said, that may involve some wrangling, and the court will have to decide what is in the child's best interests. Such circumstances will inevitably arise.
Mr. Djanogly: I would be grateful if the hon. Lady explained how the court will know what the child's feelings are, given that it need not necessarily consult.
Ms Winterton: As I have said, the principles of the Children Act would apply, which means that the child's interests and welfare would have to be taken
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into account. If necessary, the court can appoint a CAFCASS officer to ascertain the child's feelings.
Mr. Djanogly: The whole point of the clause is to provide a faster solution so that people do not have to go through the whole adoption process, and everyone welcomes that. However, a husband and a stepmother may make an application in which social workers are not involved to a great extent. There may, therefore, be greater scope for not finding out what the child wants.
Ms Winterton: In any case before a court, what is in the best interests of the child will have to be considered, especially when one parent opposes the application. Because the welfare checklist in the Children Act will apply, it will be important for those interests to be taken into account. A point was made about inheritance. A child will be able to inherit from only the natural parent or when there is a will, so the acquiring of parental responsibility will not affect that. I hope that I have provided some reassurance about the views of the child being taken into account.
As I have said, we believe that the provisions will be effective. They will improve the situation for step-parents while allowing the child to continue to have a legal relationship with the birth parent. I am grateful for the support that the Committee has given the clause, and I hope that it will stand part of the Bill.
Question put and agreed to.
Clause 107 ordered to stand part of the Bill.
Clauses 108 and 109 ordered to stand part of the Bill.
Special guardianship orders
Mr. Djanogly: On a point of order, Mrs. Roe. When special guardianship orders were discussed at our evidence-taking sittings, the Minister agreed to produce a report or letter of some sort that set out the tax and probate position of children subject to such orders. I reminded her of that some weeks ago, but the note has not appeared. It would have been helpful had it appeared by today.
The Chairman: The hon. Gentleman will understand that that is not a point of order for the Chair. I am sure that the Minister has taken note of his point.
Tim Loughton: I beg to move amendment No. 256, in page 58, line 2, at end insert—
'( ) Section 41 applies in relation to proceedings in which any question of making, varying or discharging a special guardianship order arises as if they were specified proceedings for the purpose of that section.'.
This is a long clause—if not the longest in the Bill. It is technical and comprehensive, and any further explanation and information that the Minister could have provided would have been helpful. Perhaps further information might be forthcoming later if we are still debating the clause.
Members on both sides of the House widely welcomed special guardianship orders and considered them a good innovation. We certainly support the
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principle behind them. Concerns have been raised, some during the witness sittings, that the long-term stability and security that supposedly went with a full-blown adoptive placement would be removed in producing a halfway house—for want of a better phrase—between full adoption and fostering. That is a fair point, but special guardianship orders serve a purpose. They will need to be monitored closely when under way, but I am sure can be made to work. They should not be seen as detracting from occasions when full-blown adoption would be the most suitable course of action if properly conducted in a sustainable and secure family environment which could last in perpetuity. For those children who need to retain some links to birth parents for a host of reasons, the orders have a key role to play.
The amendment is the result of several representations from outside bodies, not least the Law Society, which was specifically responsible for its wording. The principle of the amendment is that children should have a greater say in special guardianship order proceedings and be properly represented. That is why the amendment states that
''proceedings in which any question of making, varying or discharging a special guardianship order''
should be ''specified proceedings''. I am not a lawyer, but I gather that that would involve making children or their representatives party to the orders.
We have debated the consultation of children and the role that children should play in adoption placement procedures. There has been agreement on some issues, but Opposition Members would have liked the Government to go further in including children in other matters. There is a greater requirement for children to be brought into the process of special guardianship orders as much as possible. More often than adoption orders, they will involve older children, who are much more party to their circumstances and why new arrangements need to be made owing to domestic problems with their birth parents or remaining birth parent. Therefore, it is much more important that the child have a voice independent of that of the local authority.
I gather that the Government's draft Bill included special guardianship orders as specified proceedings under section 41 of the Children Act 1989. In view of that, it would be useful if the Minister set out the Government's reasons for the change. I also gather that the appointment of a CAFCASS officer in appropriate special guardianship proceedings is to be provided for in secondary legislation. It would be useful to the Committee if the circumstances in which that was envisaged were clarified.
The amendment is probing, and I am sure that the Minister will welcome the opportunity to explain the change in thinking between the draft Bill and the one before us.
Mr. Julian Brazier (Canterbury): I should like to intervene briefly in the debate with a point that applies as much to the amendment as to any part of the clause. We have made rapid progress this morning, so as to spend a long time on the clause. It would be helpful if the Minister explained how special guardianship
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differed from the provisions available under the Adoption Act 1976, which also offered a special relationship. There is certainly a demand for such an intermediate status, as I think all members of the Committee recognise and welcome. However, given that there was not much enthusiasm the last time a halfway house was tried, it would be helpful if the Minister at some stage—perhaps later—explained why she considers the clause better than the original provisions.
Jacqui Smith: I start by apologising, in particular to the hon. Member for Huntingdon. In response to a request, which I think was from him, I ensured that full notes were made available to the Committee. I apologise if some issues were omitted. I cannot promise to have anything ready by this afternoon, but perhaps it will be possible to examine the issues raised by him in more detail.
As the hon. Member for East Worthing and Shoreham pointed out, the clause is significant because it makes provision for the new special guardianship order under the Children Act 1989. To provide some context and an introduction to the amendments, it might be useful if I fleshed out the proposals and explained where they originated. I cannot necessarily outline the differences between them and proposals made 30 years ago, as the hon. Member for Canterbury (Mr. Brazier) requested, but I shall write to him to show how things have moved on.
The idea of the new status was proposed in the performance and innovation unit report following the Prime Minister's adoption review in July 2000. It received widespread support in the public consultation that followed. The Government subsequently made a commitment in the White Paper, ''Adoption: A New Approach'', to develop a new legal option called special guardianship, aimed at meeting the needs of children for whom adoption is not appropriate but who could still benefit from a permanent, legally secure placement.
I know, and members of the Committee have several times pointed out, that children value the sense of legal security and permanence that can come with a court order. The intention is therefore to give the special guardian clear responsibility for all the day-to-day decisions about caring for the child or young person and for decisions about his or her upbringing. However, in contrast to adoption, the order will maintain the basic legal link with the birth parents. They will remain legally the child's parents, though their ability to exercise their parental responsibility will be limited. They will retain the right to consent, or not, to the child's adoption or placement for adoption.
The White Paper suggested that special guardianship might be appropriate for some older children who might, for example, be in long-term foster placements, and who while not wanting to be legally separated from their birth parents could benefit from greater legal security and permanence; for some children being cared for on a permanent basis by members of their wider family; and for children in some minority ethnic communities that have religious or cultural difficulties with adoption as it is set out in
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law. At present, such children would probably be looked after either by local authority foster parents or informally.