Adoption and Children Bill

Public Bill Committee, 29 November 2001.

Special Standing Committee

Clause 18 - PLACING CHILDREN WITH PARENTAL CONSENT

Tim Loughton (Conservative, East Worthing and Shoreham)

We are awaiting the Minister's response.

Jacqui Smith (Labour, Redditch)

I start by welcoming you to the Chair, Mr. Stevenson. We had a good debate on Tuesday while your co-Chairman, Mrs. Roe, was in the Chair.

Before I respond to the hon. Member for East Worthing and Shoreham (Tim Loughton), it may be useful to remind the Committee of the purposes of clauses 17 to 34. They introduce the new system of placement for adoption through adoption agencies, and significantly reform the legal process for adoption. One advantage of the proposals is that they will replace the legally unsatisfactory freeing provisions, so that birth parents can voluntarily relinquish their children for adoption. Freeing orders have been widely criticised. Once they are made, they leave the children legally without parents, and parental responsibility is transferred to the adoption agency. Many stakeholder groups have welcomed the abolition of freeing orders.

The new system ensures that substantial decisions about whether adoption is the right option for the child and whether the birth parents consent are taken earlier in the adoption process. Courts are involved where necessary. The Government believe that greater certainty and stability for children will be provided by dealing with the bulk of issues around consent to adoption before they are placed with their new families.

The new system will also be fairer to birth families who, under the current system, can be faced with a fait accompli at the final adoption order hearing if the child has already been with the prospective adopters for several months. The new provisions also minimise the uncertainty for prospective adopters and reduce the risk of their facing a contested final adoption order hearing. Once the issues around placement have been resolved, there are limits to the circumstances in which the adoption order may be opposed.

There are two routes to adoption through an adoption agency. The first route is through voluntary placement with parental consent, which is open to adoption agencies and local authorities. The second route is through placement for adoption under a placement order where there is no parental consent, and is open only to local authorities. Where a local authority is authorised to place a child for adoption with parental consent or under a placement order, subsection (2) provides that the child is to be considered a looked-after child to ensure that the local authority properly reviews and supervises the adoptive placement and promotes and safeguards the child's welfare. It will also mean that children placed for adoption will have access to the varied services for looked-after children, and should help to ensure that they are properly supported in the unfortunate event of the adoptive placement breaking down. Under subsection (4), placement has an extended meaning and covers placing a child with prospective adopters and, if a child has already been placed for other purposes—with a foster carer, for example—leaving the child with the carer as an approved prospective adopter.

Having considered some of the wider issues around placement provisions, I now turn to amendment No. 42. The Government believe that the amendment is unnecessary, because clause 1(4)(a) requires the agency, in deciding whether a child should be placed for adoption, to ascertain the child's wishes and feelings and to take them into account, in the light of their age and understanding, as part of the decision-making process. Clause 1(1) makes it clear that the obligations in the rest of clause 1 apply

``whenever a court or adoption agency is coming to a decision relating to the adoption of a child.''

Current regulations require an agency to make a decision based on advice from its adoption panel that adoption is in the child's best interest. Similar regulations will be made under the Bill, and they will set out the process for ensuring that the agency takes proper account of the child's view in the decision-making process, as it is obliged to by clause 1. The new adoption agencies regulations that will accompany the implementation of the Bill will place explicit obligations on agencies to consult the child, to record its views, to ensure that its views are considered in the decision-making process—for example, by adoption panels—and, if the child's views are not acted on, to record the reasons why not.

Robert Walter (Conservative, North Dorset)

Is the Minister not aware that, in evidence laid before the Committee, the Adoption Law Reform Group asked that as part of proceedings the child, subject to his or her age, should have to consent, or refuse to consent, to the adoption? Several important bodies have been involved in the sittings: the Association of Directors of Social Services, the British Agencies for Adoption and Fostering, the British Association of Social Workers, and so on. Do the Government not accept their views?

Jacqui Smith (Labour, Redditch)

We had considerable discussion about the principle of consent on Tuesday, and there was wide acknowledgement of the burden that would be placed on a child if they were asked to consent directly. Furthermore, that is not what amendment No. 42 is about. As mentioned on Tuesday, the Government have considerable concerns about requiring a child to consent, either directly to an adoption or indirectly through other decision-making processes. For that reason, we argued against the need for it. Given the assurances that I have offered, I repeat my request that the amendment be withdrawn.

Mr. Jonathan Djanogly (Huntingdon) rose—

George Stevenson (Labour, Stoke-on-Trent South)

I call Mr.—

Jonathan Djanogly (Conservative, Huntingdon)

Djanogly. On Tuesday, Mr. Stevenson, we were all wondering how to pronounce the name of a Welsh constituency.

I believe that we all agree that the Bill is aiming—in some ways, more than the Adoption Act 1976—to put the child's rights more to the fore. When debating our amendments on how the child's rights should be stated, the argument seems always to return to the fact that they will be set out in regulations—but we have had no sight of those regulations. If a child is to have rights, they should be reflected in the legislation.

Tim Loughton (Conservative, East Worthing and Shoreham)

I welcome you to the Committee, Mr. Stevenson. We have a marathon stretch ahead of us. You have already encountered the difficulty in pronouncing certain names—you are lucky that you did not have to question Professor Triseliotis last week.

I thank the Minister for her response to the amendment which, as I explained when I moved it, is a probing amendment. It harks back to the concerns that we have expressed throughout our deliberations that the child should play a greater part in the adoption placement process. We expressed concerns earlier in the week about how the appropriate agencies should go about ascertaining the wishes of the child, and we argued that that should certainly include direct contact, which is not explicitly stated in the Bill. The Minister has gone some way to assuring us, particularly by saying that the regulations will place explicit obligations on the agencies to refer to children and that if they do not do so they will have to give a good account of themselves as to why not. Given that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 41. in page 12, line 37, after `identified' insert `(directly or indirectly)'.

If you had been with us on Tuesday afternoon, Mr. Stevenson, you would have an inkling about what I am about to say. However, I fear that I am going to bore the rest of the Committee by repeating some of the comments that I erroneously made prematurely at that stage.

The amendment addresses a point that has been raised by the British Association of Social Workers. It is a probing amendment in order to gain clarification on procedure. We are not sure whether the present arrangements, whereby a parent may consent to adoption by specific adopters whose identity is protected by a serial number, is to be continued. The Bill implies that adopters are to be named. Will it still be possible for a parent to agree to an adoption by unnamed specific adopters about whom the parent has received information? A child needs to be afforded a measure of protection if he or she has come from a violent background—which is the reason for adoption in the first place. Where the child is living with their adopted parents should not be disclosed directly. I ask for the Minister's clarification on whether the present system of partial anonymity is to continue.

Jacqui Smith (Labour, Redditch)

I can help the hon. Gentleman. The word ``identified'' was deliberately included in this version of the Bill instead of ``named'', which was the term used in the 1996 draft Bill, with the aim of enabling parents to consent to placement with specific adopters whose name they did not know but with whose characteristics and details they may be familiar through, for example, an anonymised profile passed on by the adoption agency. I assure the hon. Gentleman that identification on the consent form by serial number will be allowed.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is straightforward. My only query is whether ``anonymised'' is a word in the English language. It sounds like the civil servants have been working overtime to produce that one. On the basis of the Minister's clear clarification, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful for the opportunity to express some qualms about the clause—and about chapter 3, with which it is intimately linked.

Yesterday, a young woman who works for a national care organisation came to see me about another aspect of the Bill. I had met her and her delightful five-year-old daughter previously at a conference. They are great together, as anyone who saw them would acknowledge. While discussing other parts of the Bill, she told me her own story. She is a highly intelligent and articulate young woman who can stand up for herself. She had been in care most of her life and became pregnant at the age of 16. She was due to have a baby, but had no family support. Understandably, she was nervous at the prospect. She confided to her social worker at a fairly early stage of the pregnancy that if she felt that her child would have the sort of upbringing that she had endured for 16 years, she would certainly view adoption as in the child's best interests.

Anyway, she duly gave birth. Having been only a spectator at these events, I do not know about such things, but apparently it was a difficult birth. Both she and her baby were ill. She gave birth in the morning. Still under the influence of medication, she was asked in the afternoon to sign a form to consent to placing the child for adoption. I repeat that she is an articulate, intelligent and strong-willed person. Even in such a state, she was able to refuse the opportunity, stand up to the local authority for several weeks and assert her right to look after her child. She now has an excellent relationship with her child and things are definitely looking up for both of them. That is an example of extremely bad social work practice—and there is no way that we can legislate for that.

My worry is that the clause and chapter 3 will make that young woman's position even worse. The Children Act is good legislation, although we should still try to improve and build on it. Certain aspects of the proposed provisions ring alarm bells. If the young person to whom I referred had been dealt with under them, her parental responsibility could, quickly and without recourse to a court, have ended up being shared with the local authority and the prospective adopters. That major change would undermine a fundamental element of the Children Act, which asserts that parental responsibility can be transferred only by a court.

The Bill harks back to the Children Act 1948, which became discredited over the years. It was replaced by the 1989 Act, which removed the ability of local authorities to declare parental rights resolutions without recourse to a court. Those resolutions transferred parental rights from parents to local authorities. We should tread carefully in seeking to amend legislation that has been on the statute book for 10 years, has stood the test of time and has proved to be workable.

Under the Bill, even if the young person had not got to the stage where her parental rights were removed, she could not simply tell the local authority that she wanted her child returned to her, as she could under section 20 of the Children Act if the child was placed voluntarily in care. She could be required to wait for 14 days before the child was returned to her. That is a major amendment to a Children Act whose fundamental principles have widespread support, especially in the social work profession, and that has been shown to work well.

I am also concerned that the provisions are so complicated—[Laughter.] This is a serious point. The proposed legislation is not just for politicians, and certainly not just for lawyers. Children, young people and parents must be able to understand it. Social workers must certainly be able to understand it, and to use it daily. I used the 1989 Act for six years, but have not used it for the past four years and I am struggling with it as I am a bit rusty. There is no reason why the chapter should not be easier to understand.

Adoption is extremely complicated. The child's needs must be understood, the birth family and relationships must be assessed, and the child must be matched with prospective adopters. Trying to predict how things will work involves such fundamental and morally difficult issues that we do not need extra complications from the law. We need a law that has understandable architecture. The significance of the Children Act, which goes far beyond situations such as the one we are discussing, is that it has such a comprehensible structure.

We have discussed clause 1, which is a complex but clear and balanced piece of legislation. However, neither the clause nor this accompanying one have such clarity. It is beyond our ability today to table and fit cogently the necessary amendments to this and related clauses, but I ask my hon. Friend the Minister to ensure further discussion between officials and organisations such as BASW, the Family Rights Group and BAAF, which have expressed concern about the issues. Much of the legislation is excellent, but freeing provisions must be abolished. The advantage of placement orders is that they speed up the process of getting into court and making clear decisions about the way forward.

There are two routes into the care system under the Children Act: through section 20, when a child arrives voluntarily and is accommodated by the local authority, and through section 31, when a child's case is looked at compulsorily under a care order. I urge my hon. Friend to consider whether a local authority should seek a placement order whether or not a child comes into the system under a voluntary or compulsory route.

We heard in a previous sitting about children in the adoption process having to make two court appearances. One court appearance is necessary—to deal with the adoption order. I strongly suggest, in line with the Family Rights Group, that regardless of the route on which children enter the system, there might be great merit in the local authority going for a placement order in the first instance if they want to go for adoption. That would enable a decision to be made on whether adoption is the best option, whether the parents' consent should be dispensed with and whether there might be other placement options. It would also allow permission to place to be obtained.

I hope that a child's legal status will remain the same under such a system, so that he or she would still be accommodated under section 20 or, for compulsory care, under section 31. However, if the threshold conditions are met when a child comes before a court for a placement order, that should surely be the stage at which a care order is made, to ensure that the child is given sufficient protection. That would deal with the 14-day limit on removing children from care and the transfer of parental responsibility. Early, meaningful decisions could be taken and there would be the sort of openness that everyone wants to encourage in adoption. There would be compliance with the Children Act, which is good legislation. The legislation would be more coherent for the people who have to use the system. I hope that my hon. Friend agrees that significant discussion is needed on these issues between our officials and the groups that are so concerned.

Jacqui Smith (Labour, Redditch)

I will respond to all the points that my hon. Friend has made in a moment. The clause allows parents to consent to their child being placed for adoption through an adoption agency. It is important to provide a route through the difficult area of adoption which allows parents to consent without necessarily having to go through unnecessary court cases, as would happen if a placement order were required in every case. I will come to the significant safeguards shortly. A parent can consent to the child being placed with specific identified perspective adopters or with adopters whom the adoption agency selects.

My hon. Friend raised several understandably important points of concern. He highlighted a sad case of a young woman who was asked to provide consent for adoption on the same day—soon after—she gave birth. Under clause 50, no consent can be given for the adoption of a baby less than six weeks old, and so the situation that he described could not happen. Considerable support and regulation would surround the form and the nature of any consent and the extent to which it would be possible to withdraw it. I will talk about that more in a minute and certainly in relation to later clauses.

My hon. Friend makes a very reasonable call for clarity and simplicity in the system. Without speaking ill of courts or lawyers, I am not convinced that insisting on a court case, even when there may be no need for one, will introduce either clarity or simplicity—for birth parents, prospective adopters, or most importantly the children themselves.

Hilton Dawson (Labour, Lancaster and Wyre)

I am sure that my hon. Friend would acknowledge that at some point in every adoption case a court appearance is necessary. Would not the use of placement orders in the manner that I described simplify that experience in court and resolve fundamental issues more efficiently?

Jacqui Smith (Labour, Redditch)

We certainly agree that one of the advantages of the placement provisions is that they ensure that the difficult issues of consent and placement are dealt with much earlier in the process and that there are two routes—one through the courts, via a placement order. However, I still contend that it is right to provide a route through which parents can voluntarily consent that their children be placed for adoption with, of course, the proviso that they can withdraw that consent at any point up to the time when an application is made for an adoption order. My hon. Friend may have qualms about the removal provisions, but it is important to remember that. We are not asking parents to consent and then to find that there is no way out; parents can consent and then even in the case of advanced consent, to which we will come in a moment, they can withdraw that consent at any point up to the time when an application is made.

My hon. Friend also raised points about parental responsibility, questioning the way in which it is shared under the provisions for placement with consent. I hope that I can reassure him. Parental responsibility can not be shared unless the birth parent consents or a placement order has been made through a court case. Parental responsibility is not transferred; we need to be clear about that. We should remind ourselves of the present system. Under freeing orders, parental responsibility was transferred; it was taken away from birth parents and given to the adoption agency, and thus no longer remained with birth parents. Alternatively, in the case of children who were already in care, an application for an adoption order was made without the issue of consent having been addressed. As I said earlier, the placement provisions overcome the fait accompli that birth parents faced under the old system. Under the new placement provisions, parental responsibility will not be transferred; it will be shared between birth parents, the adoption agency and, as the placement goes on, the prospective adopters.

Hilton Dawson (Labour, Lancaster and Wyre)

Does my hon. Friend acknowledge that the provision marks a significant break with the Children Act? It means that an adoptive parent, or the local authority, will acquire a share in the parental responsibility without going through a court process.

Jacqui Smith (Labour, Redditch)

That could happen only if the parents consent to it. That brings me to the restrictions and the safeguards that we need to place around the consent process, and the important matter of sharing parental responsibility.

When there is consent to placement for adoption, parental responsibility is given to the adoption agency and shared with the prospective adopters once the child is placed. However, in contrast to freeing orders, the birth parents will retain parental responsibility up to the final adoption order, although their ability to exercise it may be limited. I shall state what I believe are the justifiable reasons for that proposal in clause 24.

The sharing of parental responsibility once the child is placed will help the management of the placement by making it clear that the agency and the adopters have responsibility for the child and can make day-to-day decisions. It is appropriate for the adoption agency, which has overall responsibility for managing the placement, to be able to determine the extent to which the birth parents may exercise parental responsibility. However, I emphasise that parental responsibility has not been transferred but shared in such cases.

My hon. Friend also raised the important case of a child who is voluntarily accommodated, and spoke of his concerns about the removal provisions. We must be clear that a child who is voluntarily accommodated cannot be deemed to be placed for adoption with, for example, foster carers without the consent of the parents. When considering the 14-day removal period, we must remember the direction of travel. If a child is voluntarily accommodated to provide respite or support for the family, or to enable rehabilitation, it is right that the parents have their child returned directly to them when they ask for that voluntary accommodation to end.

However, it is different when the direction of travel is towards adoption. In such cases, the child would probably have been spoken to when they were first accommodated and prepared for leaving their original mother and father for a new family. The birth parents would still have the right to remove their consent for the placement, but if they did, the local authority would have 14 days either to return the child to the birth parents or consider whether it wanted to go through the placement order process. In that situation, 14 days would be reasonable, given that everything that the child would have experienced before that would have been geared towards adoption. It does not seem unreasonable to have a period of time within which that child could then be prepared to return to their parents. That is qualitatively different from voluntary accommodation with the intention that the child will be returned to their family.

Jonathan Djanogly (Conservative, Huntingdon)

Are there circumstances in which a child could be adopted in less than 14 days after a placement order?

Jacqui Smith (Labour, Redditch)

I think not, but I will come back to the hon. Gentleman if I am wrong. Given that we have made provision for three months between notice of intention to adopt and the application, I suspect that it would be impossible for there to be less than 14 days. Those three months are important, because they provide the birth parent with the ability to exercise their right to have their child returned to them, notwithstanding the 14 days' maximum removal period.

To summarise, the local authority cannot get a share of the parental responsibility unless the parent has given consent or the authority goes through a placement order court case. We will deal with the detail of consent, because it is important to be clear about safeguards and the process of granting and withdrawing consent. I emphasise that the forms for consent to placement and withdrawal will be prescribed to show clearly the full implications of what is involved. An independent Children and Family Court Advisory Service officer will witness consent to ensure that it is properly given. That will involve talking through the implications to ensure that the type of situation mentioned by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), in which someone is rushed or bamboozled into giving consent, could not happen. Placement with consent is intended to be a voluntary process. Birth parents can withdraw their consent at any point up to an application for an adoption order.

Hilton Dawson (Labour, Lancaster and Wyre)

Does my hon. Friend accept that it is very difficult to have these discussions when one has not seen the detail of the regulations? In fact, the witnessing of the consent agreement by a CAFCASS officer is a very important provision. Members of the Committee need to be aware of such regulations when discussing the issues covered by the Bill.

Jacqui Smith (Labour, Redditch)

I should make it clear that the provision on witnessing by a CAFCASS officer is in clause 97. The point that we discuss legislation and then perhaps need to look at the details afterwards is frequently made, although the same process was used for the Children Act. It seems sensible and logical to set out the principles in legislation and then provide the opportunity to discuss concerns, which may then need to be represented in regulations. It is also necessary to enable wide and full consultation on the regulations to ensure that the issues raised, as well as any others on the detail of the regulations, are taken into consideration.

Jonathan Djanogly (Conservative, Huntingdon)

Will someone who is going to give consent be entitled to legal representation? Will they get legal aid for that representation?

Jacqui Smith (Labour, Redditch)

I do not believe that that would be appropriate. As I have spelled out, they will have the independent support and witness of a CAFCASS officer. That is an important assurance. The nature, form and withdrawal of the consent will also be designed in such a way that it will be very clear to that person what they are and are not consenting to when undergoing the process.

The clause strikes an appropriate balance between the rights of the birth parents and stability and security for the child and the prospective adopters where consent to placement has been given.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.

Clause 19 - Advance consent to adoption

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 46, in page 13, line 25, after `section', insert

`and will be given a written explanation as to the timing and procedure by which consent can be withdrawn.'.

In his interesting speech on clause 18, the hon. Member for Lancaster and Wyre highlighted problems with the Bill. Even with all the advisers and expert witnesses available to Committee members, it is complicated enough. It will be particularly complicated for children and prospective adoptive parents, and especially for birth parents who, at a highly emotional and difficult time, are in the process of voluntarily or involuntarily giving up their children for adoption. Anything that we can do under the Bill to clarify that situation and make it less able to be challenged in the courts through messy and long-running proceedings must be in the interests of all concerned.

In her comments on clause 18, the Minister stressed that a parent who has consented to giving up his or her child for adoption has every opportunity to withdraw their consent, right up to the granting of the adoption order. I agree that that is important. During such a highly emotional time, the circumstances of the parent may change daily or weekly—particularly those of a young mother who did not expect to fall pregnant and is faced with the dilemma of deciding whether to keep her child or give it up for adoption in the belief that the child would have better opportunities if looked after by someone else. That is a difficult decision.

Interestingly, the problem has featured heavily in various television programmes and newspapers recently. Dear Deirdre recently dealt with adoption in The Sun, and the nation's favourite soap tackled the issue and realistically portrayed the dilemma faced by someone considering whether to give up their child for adoption. Other television programmes, obviously taking their cue from the legislation and the proceedings of this Committee, have tackled the complex subject.

The amendment aims to be helpful and lessen confusion. We constantly refer to the flow chart at the back of the explanatory notes, yet I still need a dark room and a wet towel around my head to get my mind around it. How will the person who is actually faced with the various options and procedures represented in the flow chart make sense of the measure?

If a parent, after taking the decision that it is in the best interests of his or her child to be given up for adoption, makes the process easier by giving consent, which will speed up the process—speed is always of the essence, because the child should be settled in a new, stable, long-term environment as soon as possible, particularly if there are threats of domestic violence—surely it is only right that that parent should have properly explained to them the procedure by which they can withdraw their consent should circumstances alter or they have a change of heart as they realise, as the time draws nearer, the full implications of giving up their child for irreversible adoption. Instead of simply thrusting a flow chart into the hands of parents who may be in a state of semi-trauma or explaining references to a flow chart that appeared in some regulation, the agency should be obliged to provide a clear, explicit and simple written explanation of timings and the procedure by which they can withdraw their consent.

One representation sent to the Committee cites an instance in the 1980s of a parent who, by force of circumstances—she was going abroad—placed her daughter in voluntary, short-term care with foster parents, under the aegis of Surrey county council social services department. Much to her consternation, she returned to find that her child had been placed in permanent adoption without her knowledge. That is an extreme case, although I have heard of similar ones.

The point is that it is surely incumbent on the authority and agencies involved fully to inform the parent at every step of the way, and to make the process as simple as possible. That is why I am asking that, instead of a complicated flow chart, there should be an obligation to tell the person concerned, ``Here are your options. If you consent at this stage and sign on the dotted line, until a certain date you will be able to reverse that consent, and the way to do so is through''—for example—``form A.''

That simple requirement would not place an enormous extra bureaucratic burden on the agencies concerned. It would avoid the subsequent challenge that adoption took place without parental consent, because the parent would be fully appraised of the options during the difficult time leading up to the granting of the adoption order. That simple requirement is all we are asking for. No great expense or extra burden of work would be involved. It would ensure that the parent is absolutely certain of their decision, and if they change their mind they can notify the relevant authorities.

Jonathan Djanogly (Conservative, Huntingdon)

I certainly support the amendment, although it could go a little further by making it clear that the written explanation should be given when consent is given. The person who is consenting clearly has a right to know the implications of what they are doing. One of the Bill's aims, which we all support, is to facilitate and speed up the adoption process. In certain cases, there could be a family incident, and even though a clear explanation is given at the time, the adopter could be left in a state of shock and consternation. After a discussion, the social worker might decide that adoption is the right course of action. It is therefore more important than ever to establish safeguards such as those that have been proposed.

It is right that notice be given, but during the period in which consent can be withdrawn, will such a person have access to on-going advice? Will advice stop when consent is given? If the person concerned—who may have come out of a vulnerable situation and is a bit more clear-thinking after the consent date—wanted advice, would she or he have to take it from social workers, who may be interested in expediting the adoption, or would there perhaps be access to a voluntary agency? That should be made clear on the form, as proposed by my hon. Friend the Member for East Worthing and Shoreham.

Jacqui Smith (Labour, Redditch)

The clause enables a parent to give advance consent to the final adoption order either at the same time as they give consent to placement or at any time afterwards, and is a means of allowing people voluntarily to give up their child for adoption. It is therefore incumbent on us to ensure that the consent arrangements are fully clear and understood and that people are supported in their decision making. That is why the form of consent and withdrawal of consent will be prescribed in regulations made under clause 50(7) to accompany the implementation of the Bill. It is intended that the form of consent will make clear both the implications of giving advance consent and the process involved in withdrawing it.

Advance consent to placement and adoption will be witnessed by an independent Children and Family Court Advisory Service officer, who will ensure that parents fully understand the implications of what they are agreeing to and that consent is properly given in full understanding of all that it involves. The officer will report that to the court. Clause 97(1) provides for the appointment of CAFCASS officers.

The hon. Member for East Worthing and Shoreham is being either disingenuous or slightly mischievous in suggesting that the flowchart will be used by CAFCASS officers and others who support birth parents. In fact, the flowchart is designed to support legislators in the process of understanding, and I am extremely proud of it.

The adoption agencies regulations will oblige agencies to make clear to parents the timing and procedure for giving and withdrawing consent, as well as the legal and procedural implications of giving advance consent to adoption alongside consent to placement. I assure the hon. Gentleman that the need to provide a written explanation of the process will remain in regulations. It is currently in regulation 7. As for the possibility of a birth parent being in a state of shock when giving advance consent, I assure members of the Committee that advance consent to adoption can be withdrawn at any point until an adoption application has been made.

To respond to the questions raised by the hon. Member for Huntingdon (Mr. Djanogly), the measures for adoption support that we will discuss under clause 2 and related clauses also make provision for adoption support for birth parents.

Given those assurances, I hope that the hon. Member for East Worthing and Shoreham feels able to withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am greatly humbled by the Minister's sensitivities about her flowchart. There was no derogatory intent—

Jacqui Smith (Labour, Redditch)

Yes, there was.

Tim Loughton (Conservative, East Worthing and Shoreham)

All right, there was. It is a terrible flowchart, and it confuses everybody.

I endorse the useful comments made by my hon. Friend the Member for Huntingdon. Explanation should be given at a very early stage and that should be tied down in the Bill. The Minister referred to the need for continuing advice. When we discuss clauses 2 to 16, we shall seek specific guarantees from the Government on the way in which such support services will operate. According to the Minister, they will be available to the birth parent as well, which is helpful.

I was not aware that a written explanation of the options open is currently prescribed under regulation 7 and the Government intend that to continue. That, too, is helpful. The full answer that has been given goes a good way towards giving us the assurances that we require. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 45, in page 13, line 26, leave out from `section' to end of line 30 and insert

`will automatically be informed by the adoption agency of any application for an adoption order unless he has withdrawn his right to receive such information.'.

We will discuss the amendment without reference to the flowchart. The amendment deals with the notification of parents who have consented to adoption, and would remove part of subsection (4). It strikes me as odd to ask a parent who has given consent to adoption, in effect, to opt into an information system. For the reasons that I mentioned earlier about the pressures on a parent about to give up a child for adoption, there should be a statutory right for that parent automatically to be told about the various processes that are coming up. It seems for the Bill to state that a parent has to express his or her wish to be informed of any application for an adoption order—a key part of the whole process. Surely, it should be that person's automatic right to be notified that a significant juncture in the process is about to be reached.

The amendment also raises the question, which I mentioned earlier, of the satisfactory notification of such a person on how to exercise their right to withdraw consent. If they are not automatically told that an adoption order is being applied for, they may not know that the period within which they may withdraw their consent is running out. The amendment would give that person an automatic right to be informed by the adoption agency of any application for an adoption order unless they have opted out of the system.

If, for some reason, a person made the decision to be completely divorced from the proceedings, because they were handing their child over and were adamant that they had made up their mind and did not want further information, that would be entirely up to them—they could opt out—but surely it is right for everyone else—the majority, I imagine—to be automatically informed when every stage is coming up, especially the application for an adoption order. They will then know what time they have in which to take avoiding action if they have changed their mind. It is a basic human right automatically to be given information about the future destination of one's child during the adoption process.

I hope that the amendment is helpful. It is intended to make the legislation absolutely watertight and ensure that parents are fully apprised of all facts at every juncture, giving them the opportunity to continue with the decision made, or to reverse or block that decision.

Jacqui Smith (Labour, Redditch)

The Government believe that the Bill already provides what is needed in terms of giving notice in cases of advance consent. It is important to understand the difference between clause 18 and clause 19. The purpose of clause 19 is to allow, in the rare cases that arise, advance consent to be given to the making of the final adoption order at the same time as consent to placement. That will make provision for cases in which parents want to relinquish a child for adoption and not be further involved in the legal process. The arrangement will replace in part the freeing orders that can currently be used in situations in which parents consent to relinquishment.

Of course freeing orders can also be made against parents' wishes, but not under clause 19, in which the order is voluntary. It will be used solely in cases in which parents want to relinquish a child for adoption, hence the presumption that they will not want to be notified of the final adoption hearing. It is right that parents should be able to decide that they want to receive notice of the final adoption order hearing, and subsection (4) provides for that; if parents opt in, the provisions in clause 126(4)(c)(ii) apply and they should automatically receive notice. However, after giving their consent, they can decide at any point that they want to opt out of the notice, and they can subsequently opt back in again.

Tim Loughton (Conservative, East Worthing and Shoreham)

Before the Minister befogs us with references to various clauses, may I ask her—an answer will provide a useful background to the clause—whether she knows the approximate number of adoptions wherein parents withdraw consent because they have had a change of heart at the eleventh hour? How relevant is the possibility of people changing their mind?

Jacqui Smith (Labour, Redditch)

I do not know the answer to that off the top of my head, but I shall write to the hon. Gentleman. I emphasise that advance consent to adoption is designed to enable parents in the rare cases in which they want to relinquish their children and to consent in advance to do so. The prescribed form of consent will explain that to parents and, as I said, an independent CAFCASS officer will witness that consent to ensure that it is properly given and that the parents understand what is involved.

Jonathan Djanogly (Conservative, Huntingdon)

A straightforward way to proceed would be to ensure that the consent form has a tickbox, so, at the very least, the matter would be considered when consent is given, even though parents can change their minds later on.

Jacqui Smith (Labour, Redditch)

I agree that that would be an obvious and sensible way in which to approach the issue of advance consent. The question is whether, given the nature of advance consent, the amendment is appropriate. On balance, I believe that our approach is correct, and I hope that the hon. Member for East Worthing and Shoreham will feel able to withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Minister for her clarification in respect of a probing amendment. It is a splendid suggestion by my hon. Friend the Member for Huntingdon that there should be a box to tick, like the one on the football pools that says ``no publicity required'' if one is fortunate enough to win.

I do not completely follow the Minister's logic in her response to the case that I have made. Should it be easier for someone to opt out of the information process than to opt into it, given that a person may not be completely clear about that process? Although she has given us assurances about the way in which the regulations will prescribe explicit written information, I am not entirely assured, but at least she has given undertakings that the matter will be addressed in detail in the accompanying regulations. That is an example of how we are debating the Bill with one arm tied behind our backs because we have not seen the regulations. So much of the Bill depends on the small print, and the devil will be in the detail. When the detail appears, the Committee's work will have been done.

Jacqui Smith (Labour, Redditch)

That is why the regulations will be extensively consulted on.

Tim Loughton (Conservative, East Worthing and Shoreham)

Obviously we are pleased about that, but the Government will have the final decision on which consultation to take on board and which will influence the final regulations. That the Government have been entirely uninfluenced thus far by the enormous body of witness statements, submissions and consultation on disclosure of information does not bode well for things being taken on board in future. However, we must take the Minister's word that the regulations will be addressed fully, properly and to the satisfaction of the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20 - Placement orders

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 32, in page 13, line 36, leave out subsection (1) and insert—

`(1) A placement order is an order made by the court authorising a local authority—

(a) to place a child for adoption with any prospective adopters who may be chosen by the authority; or

(b) if the child is already living with the prospective adopters, with the prospective adopters named in the order.'

George Stevenson (Labour, Stoke-on-Trent South)

With this it will be convenient to take amendment No. 34, in page 14, line 5, after `authority', insert

`or, as the case may be, with prospective adopters with whom the child is already'.

Sandra Gidley (Liberal Democrat, Romsey)

The aim of the amendment is to clarify placement orders. I will use the example of a child who has already been placed with foster carers, those carers want to adopt and that decision is supported by the local authority. Under clause 21, the local authority will be required to apply for a placement order. However the placement order as defined in clause 21 entitles the local authority to place the child with whomever it chooses. It is odd to ask the court to make an order that authorises the local authority to place the child for adoption with anyone it chooses when there already is a plan for an adoption by the current carers. Can the Minister explain the reasons for that apparent anomaly? If the appropriate placement order cannot be achieved, the court would have to consider whether adoption was the correct course of action.

Jacqui Smith (Labour, Redditch)

It might be helpful to spell out the fact that clause 20 defines a placement order, which is

``authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.''

It continues in force until

``(a) it is revoked . . .

(b) an adoption is made in respect of the child, or

(c) the child marries or attains the age of 18 years.''

Only local authorities can apply for placement orders. That is a change from the previous version of the Bill, published earlier this year. Dare I say that the Government have been listening to representations and have responded? Under the previous Bill, voluntary adoption agencies applied for placement orders. Consultation suggested that it was inappropriate for a private voluntary sector body to be able to seek a court order to place a child compulsorily for adoption against the parents' wishes. The Government agreed and made the change.

Subsection (2) provides that a court may not make a placement order unless the child is already subject to a care order or the court has the power to make a care order under section 31(2) of the Children Act 1989. The court must be satisfied that the child is suffering or is likely to suffer significant harm because he is not receiving what is reasonably expected of a parent. That is another important change from the March version of the Bill, and one that delivers our commitment to align adoption legislation with the Children Act. The effect is that the same threshold for compulsory intervention in family life applies where a local authority seeks to place a child for adoption without parental consent. That is the right position. The Children Act threshold is widely accepted and well understood, and it should apply in this respect.

The effect of the amendment moved by the hon. Member for Romsey (Sandra Gidley) would be that, when a placement order is made for a child who is already living with prospective adopters, the order would authorise that specific placement, not placement for adoption generally. The main problem with that proposal is the question of what would happen in the regrettable event of the placement breaking down.

Sandra Gidley (Liberal Democrat, Romsey)

That was the point I was trying to make, albeit slightly differently. If the local authority is convinced that adoption is the right choice, there is obviously a problem if a breakdown occurs. In such a case the court would have to reconsider whether adoption was the right course to take. Surely that would be determined by whether the foster care was at a stage where the child had been with those foster parents for a long time, and whether coming to that decision had involved a long process.

Jacqui Smith (Labour, Redditch)

I believe that the situation is precisely the reverse. If, as the hon. Lady appears to be suggesting, the placement order was a specific placement order, relating to a specific placement, and if that placement broke down, the local authority would not be authorised to place the child elsewhere.

The terms of the placement order as envisaged under the Bill enable a child to remain placed with foster carers if those foster carers had originally planned to adopt—that seems to be what the hon. Lady is concerned about. However, if that placement broke down and if the local authority still thought that the child should be placed for adoption, it would not have to return to court seeking another placement order before it could place the child for adoption again. Such a process would lead to harmful delays for the child in cases where a suitable alternative adoptive family was available.

The issue of whether placement orders should be general or specific was a key question posed during the public consultation on the placement proposals conducted by the Conservative Government in 1994. The responses to that consultation were strongly in favour of general placement orders on the grounds that they made the process both simpler and more flexible.

The purpose of placement orders is to enable the court to decide whether placement for adoption is in the best interests of the child. The identity of any prospective adopters will clearly be relevant if the child is already placed or if a potential match has been provisionally identified, but the court is essentially being asked to take a decision in principle that the child ought to be placed for adoption. It is not being asked to select and match the child with prospective adopters—that is a role for which adoption agencies have the proper skills and that they are equipped to perform. With those assurances, I hope that the hon. Lady will feel able to withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

That clarification is useful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move that amendment No. 33, in page 13, line 42, after `met' insert

`in which case if the court makes a placement order it shall also make a care order'.

George Stevenson (Labour, Stoke-on-Trent South)

With this it will be convenient to take amendment No. 38, in page 17, line 42, leave out subsection (1).

Sandra Gidley (Liberal Democrat, Romsey)

This is another probing amendment, because it is by no means clear why the framework in the Bill makes placement orders an alternative to care orders instead of simply an adjunct. Perhaps the Minister could explain why the Government think it necessary in effect to give children who are the subject of placement orders a separate status.

Clause 20(2) states:

``The court may not make a placement order in respect of a child unless—

(a) the child is subject to a care order,''

but clause 28, which deals with further consequences of care orders, states:

``Where a placement order is made in respect of a child . . . subject to a care order . . . the care order does not have any effect at any time when the placement order is in force.''

Trying to understand how it will work in practice is like bashing one's head against a brick wall.

Under a care order made under the Children Act, the local authority would have parental responsibility, but clause 51 provides that certain Children Act duties may be modified by regulations: examples include ascertaining and taking into account the views of parents and others to promote contact with the parents. It is hard to see why no reference is made to modifying section 23 of the Children Act, under which local authorities have a duty to make arrangements to enable a child to live with a parent, guardian or relative. Is it considered that the placement order automatically removes that duty?

The purpose of the amendments is to tease out whether the Government believe that it is feasible to have a placement order as an adjunct to a care order rather than provide for a separate scheme. If the amendment were accepted, clauses 25 and 26 would have to be modified.

Jacqui Smith (Labour, Redditch)

To respond to the hon. Lady's last point first, providing for the care order and placement order to run in parallel could lead to legal confusion because, for example, they are subject to different rules for discharge and revocation, for removing the child, and for contact with family members and others. We have taken the simplest approach in line with the principle that children should be subject to the fewest number of orders to provide them with the necessary protection.

Sandra Gidley (Liberal Democrat, Romsey)

One of the themes running through our discussion is that of trying to make the Bill mirror the Children Act as closely as possible, so what is the reason for having different discharge rules and regulations?

Jacqui Smith (Labour, Redditch)

I shall come to those points later.

The amendment would require the court to make a care order whenever it made a placement order, unless the child was already subject to a care order. Under clause 28, the care order would be instantly suspended for the duration of the placement order, but if the placement order were revoked, the care order would automatically revive, placing the child in the care of the local authority. The current provisions provide the court with the flexibility to make the most appropriate arrangements on the discharge of a placement order, taking account of its full range of powers. Amendment No. 38, as the hon. Lady said, provides that the making of a placement order does not suspend any pre-existing care order.

To come to the important point about protecting the child, the Government believe that the amendment is unnecessary. The placement order provides the local authority with all the powers it needs: it has parental responsibility for the child and, as with care orders, it may, if necessary, restrict the parents' ability to exercise their parental responsibility. Under clause 33, no one other than the authority may remove the child from the placement unless that is done under a specific legal power or the child is arrested. As placed children will be looked-after children, the authority will be under the same general duties set out in section 22 of the Children Act to safeguard and promote the child's welfare, appropriately modified for adoption this is the important point through regulations made under clause 51. If a placement order were revoked, any pre-existing care order would automatically revive, so the child would continue to be protected.

The hon. Lady asked why the placement order is separate from the care order and the implication of her question was why not just use a care order? The care order is not specific. The placement order is intended to ensure that when placement for adoption is planned and parents have not consented, there is a court decision specifically on that matter. That is one way in which it is specifically related to the needs of adoption. The other issue, as the hon. Lady rightly said and as I have suggested, is that modification will be necessary through regulations made under clause 51.

The hon. Lady asked why there are different discharge arrangements, and we will come to that when we consider clause 23. However, the limits on discharge for placement orders allow the local authority time—12 months—in which to find an adoptive placement if the court has decided that the child should be placed. I hope that I have reassured the hon. Lady that distinctively different provisions and considerations are necessary for placement orders.

Hilton Dawson (Labour, Lancaster and Wyre)

In circumstances where the threshold conditions have been proved, would not the arrangement that my hon. Friend describes leave a child in an unfortunate limbo if a placement proves impossible to find and they do not have the legal backing of a care order?

Jacqui Smith (Labour, Redditch)

There are three possible scenarios. First, a care order could already be running; if so, the care order would come back into operation if the placement order were revoked. Secondly, a local authority could apply simultaneously for a placement order and a care order. Thirdly, an application could be made to revoke a placement order, in which case the local authority would know as much and could apply for a care order.

Because there are different adoption circumstances, it is necessary to make separate provision through placement orders. So far as running both types of order simultaneously is concerned, we need, as I have said, to limit the number of orders and the complexity of the system.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The hon. Member for Lancaster and Wyre makes a very important point. Where the placement order breaks down—the third option to which the Minister referred—there is an obvious and immediate need for a care order, but what about the child's welfare during the gap between the cessation of the placement order and the application for a care order? What happens if the local authority does not act quickly enough? There is a potential limbo, which is the valid point that the hon. Gentleman was addressing.

Jacqui Smith (Labour, Redditch)

It is a valid point, but I have given a valid response. If the local authority was concerned about that problem at the time of application, it could apply for both a placement order and a care order—[Interruption.]

George Stevenson (Labour, Stoke-on-Trent South)

Order. If the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) wants to intervene, he must do so in the appropriate manner.

Jacqui Smith (Labour, Redditch)

As I was saying, the local authority could apply for a placement order and a care order at the same time. In effect, the care order would not operate while the placement order was in force, but would spring into life if the placement order were revoked. Alternatively, because the local authority would be aware of an application to revoke the placement order, it could act quickly to ensure that the care order was in place.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

In a perfect world, the Minister is right.

Sandra Gidley (Liberal Democrat, Romsey)

I still feel that the provision is unnecessarily complex and will give rise to difficulties in practice. However, it is not worth pressing the matter to a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 96, in page 14, line 6, after `with', insert

`and every effort has been made to inform each parent or guardian or other persons holding parental responsibility.'.

In the true tradition of probing, this is another probing amendment. It deals with consultation on placement orders and its purpose is to plug any potential loopholes and ensure that everyone is satisfied that they have had ample opportunity to make their representations on the process and to be kept informed about the stage that it has reached and what is still to come.

If the court decides to go ahead with a making a placement order regardless of the consent of the parent or guardian—I am still keen to get the Minister's clarification regarding other persons with parental responsibility—is that consent, in effect, overruled by default if the parent or guardian has not appeared on the scene to make a rejection of consent order? The Bill should ensure that the process cannot proceed by default because for some reason the parent or guardian was not traced. Should the consent of both parents or both guardians be obtained? A birth father—more likely than a birth mother—may for various reasons have disappeared from the scene, leading to the circumstances that made an adoption necessary in the first place.

It should be incumbent on the court to ensure that each parent or person with parental responsibility has been informed about the process that is taking place and the stage that it has reached; otherwise, the whole procedure could take place in the ignorance of certain key individuals. I am sure that that would happen in only a minority of cases, but we are trying to plug the loophole so that nobody can say that they were left in the dark and that had they been properly informed, their views would have been different, or they could have made representations to the court on why their consent should not be dispensed with.

The issue requires probing and clarification. Which of the parents or parental responsibility candidates need to have their consent dispensed with, and to what lengths will the court go before it makes that decision?

Jacqui Smith (Labour, Redditch)

I hope to be able to reassure and educate the hon. Gentleman. The amendment seems to be designed to ensure that the courts cannot make a placement order unless every effort has been made to notify the parents and everyone else with parental responsibility. The arrangements for notification are set out in clause 126, which provides that the court rules must require certain persons to be notified of the date and place where the application will be heard, and of the fact that unless the person wishes or the court requires it, the person need not attend. The people who have to be notified are those whose consent is needed for the making of the placement order, in so far as they can be found.

In the light of the Opposition's confusion on Tuesday, it might be useful to remind them who those people are. Under the Bill, the list of people whose consent is required for the making of a placement order or an adoption order follows the model of the Adoption Act 1976. First are the natural parents of the child who have parental responsibility. Under the Children Act 1989, mothers automatically have parental responsibility, as do married fathers; unmarried fathers can acquire parental responsibility either by marrying the mother of their child or, under section 4 of the Act, by agreement with the mother or by a court order. Under clause 106 of the Bill, they will also acquire parental responsibility automatically if they jointly register the birth with the mother.

The second person whose consent is required is any guardian of the child. That means a guardian who may be appointed under section 5 of the 1989 Act to act in the event of the parent's death. I think that that covers the point made by the hon. Member for North-West Norfolk (Mr. Bellingham) on Tuesday. Once the Bill is enacted, special guardians will also be included.

Those individuals are the only people who can consent to the adoption of a child under the 1976 Act. Under the Bill, they are the people who can consent to a placement order or an adoption order. Other people may have parental responsibility—as we have discussed, it is possible for parental responsibility to be shared—but it would not be appropriate for those others to consent to adoption or a placement order.

Jonathan Djanogly (Conservative, Huntingdon)

Is the Minister satisfied that the procedures for finding the people who must give consent are adequate? Presumably there are such procedures, although it is not an area with which I am familiar. Is there a need to review them?

Jacqui Smith (Labour, Redditch)

With some provisos, which I might mention in a moment, we are confident that the procedures are adequate. As I have said, clause 126 lays down the process for notifying the relevant persons. It also provides that if none of them can be found—I think that that is what the hon. Gentleman means—any relative prescribed in the court rules who can be found should be notified instead; however, they cannot give consent. As we discussed on Tuesday, ``relative'' is defined in clause 129 as a person:

``in relation to a child . . . a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage''.

The hon. Gentleman might also have been referring to the procedures for finding and notifying unmarried fathers. Under the Adoption Agencies Regulations 1983, a local authority must make reasonable efforts to contact an unmarried father if it thinks that doing so is in the child's best interests. We will place a similar requirement on agencies in the new regulations.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am a little wiser but not entirely enlightened by the Minister's re-explanation of parental responsibility, especially in relation to circumstances in which responsibility is shared and the hierarchy of the people in her list who have to be consulted. She referred to ``reasonable efforts'' to contact unmarried fathers, but that is a moveable feast, so I hope that regulations will specify rather more closely the extent of an authority's investigations—for example, whether they are to be time limited, and whether it delays the process if someone has gone abroad and has to be tracked down to give parental consent. I am still a little unclear about how many boxes need to be ticked off before parental consent can be dispensed with.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman appears to misunderstand. An unmarried father could not grant consent. Only a married father would have parental responsibility and could provide consent in such circumstances.

Tim Loughton (Conservative, East Worthing and Shoreham)

But the fourth category of person on the list that the Minister gave was unmarried fathers who had acquired parental responsibility, so it is not the case that unmarried fathers have no role in giving consent if they have acquired parental responsibility. There is a role for such fathers, under the terms that she outlined.

It is difficult, without seeing the actual regulations, to understand exactly how the procedure will work but it has been useful to place on record, to close any loopholes, that we should go to extraordinary lengths to ensure that people cannot complain that the procedure has not taken place in the full knowledge of all interested parties at the appropriate stages. Given the Minister's assurances, which go part of the way, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 35, in page 14, line 10, after ``adoption'', insert ``or special guardianship''.

The amendment is very straightforward and would amend what in some respects appears to be an oversight. The Bill introduces special guardianship orders, which is welcome, but I contend that once a child is placed in a legally approved secure environment, whether by adoption or a special guardianship order, there will be no further need for a placement order. The Government appear to be suggesting that special guardianship orders are in some way less secure. Can the Minister envisage circumstances in which there will be a need to continue a placement order once a special guardianship order is in place?

Jacqui Smith (Labour, Redditch)

As the hon. Lady said, the amendment would provide that the making of a special guardianship order automatically discharges a placement order. At the moment, it does not do that, and we think it right that the making of a special guardianship order should not automatically cut across a placement order. We want a court to take a positive decision to revoke a placement order, governed by clause 1 of the Bill and the adoption checklist, rather than automatically revoke it by making a special guardianship order. One reason is that, when making a special guardianship order, the court will look at section 1 of the Children Act, which, as we discussed when debating clause 1, is not specifically tailored to adoption and the issues surrounding it.

To answer the hon. Lady's last question, when a local authority agrees that special guardianship is appropriate instead of placement for adoption, we envisage that it should apply to discharge the placement order alongside the special guardianship order application. We believe that that is the appropriate process, and the Bill provides for it.

Sandra Gidley (Liberal Democrat, Romsey)

If the Minister envisages that that will happen anyway, what is the problem with putting it in the Bill? The Minister has not clearly answered my question about how those circumstances will arise. A special guardianship order is, for most intents and purposes, not a second best to adoption but an appropriate legal measure when adoption is not appropriate for some reason—perhaps because older children are involved. It seems to me—

George Stevenson (Labour, Stoke-on-Trent South)

Order. If the hon. Lady wishes to catch my eye to make a further contribution, she is entitled to do so, but interventions should be short. I think that the Minister has got her drift.

Jacqui Smith (Labour, Redditch)

I answered the hon. Lady's point when I said that the amendment would automatically ensure that the making of a special guardianship order discharged a placement order without consideration, and that the Government think that there is an argument for the court to make a positive decision to revoke the placement order following, as I have suggested, the appropriate process. The local authority, agreeing that the special guardianship order was appropriate rather than the placement, would then apply to discharge the placement order alongside the special guardianship order application.

Sandra Gidley (Liberal Democrat, Romsey)

I am not completely convinced, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 43, in page 14, line 11, at end insert—

`(d) 2 years after it is issued at which time it must be reviewed.'.

We continue to wade through clause 20 as the seconds tick away. Under subsection (4), which deals with the lifespan of a placement order, the three conditions under which a placement order continues are given as: revocation, the details of which are under clause 23—I have a hunch we may not come to that; the child is adopted; or the child attains the age of seniority.

The amendment is designed to place a time limit on that process, because it is undesirable that a placement order should remain in force for years. All our discussions and all the representations that we have received have shown that speed is of the essence in taking a child out of an unsuitable environment and placing them in a more suitable, long-term, stable situation. That is in the interests of all the children with whom the Bill deals. A placement order that goes on and on and does not become a permanent adoption order probably contains a weakness. It is not in a child's interest constantly to live under the shadow of uncertainty about where they will ultimately end up. Alternatively, if a child is subject to a placement order that breaks down, they can go to another placement before eventually ending up in a long-term destination.

Other countries deal with the problem more swiftly. Research from Oxford university which other members of the Committee may have received makes for interesting reading. It gives examples from other European countries and further afield. In Sweden, placements away from home must be reviewed every six months, which is shorter than the stipulation that we are trying to impose, which is probably too long. There is, however, a slight difference in that long-term adoption is far less frequent in Sweden. In most cases, the long-term aim is for children to return to their birth parents, but that would be inappropriate for the majority of children whom we are discussing. It is interesting to note that the Swedish have acknowledged the urgency of ensuring that placements do not drag on.

Jonathan Djanogly (Conservative, Huntingdon)

Is it not the case that in addition to the regular review, someone other than the social services department that procured the placement order should conduct another review? Perhaps the Minister's Department should do the checks so that an outside body can ensure that everything is being kept up to scratch?

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister's time is valuable and there are many pressures upon it. Her staff's time is also valuable and there are currently inordinate pressures on them to produce explanations of the Bill and flowcharts. None the less, my hon. Friend makes a good point. If the placement order—[Interruption.] There is pressure on the Minister's time even now. To resume, if a placement order is still in place after two years, it suggests that the order is not working and that urgent action must be taken to place the child in an alternative home that may lead to a permanent adoption order and the permanence, security and long-term well-being that we are trying to achieve. Perhaps reviews should be made after less than two years if a two-year placement order is regarded as an admission of failure. As my hon. Friend suggests, an alternative body should carry out that review, because the social services department that made a placement order is responsible for—

It being twenty five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28th June] and the Order of the Committee [27th November], to put forthwith the Question already proposed from the Chair.

George Stevenson (Labour, Stoke-on-Trent South)

The Question is that the amendment be made. As many as are of that opinion, say aye.

George Stevenson (Labour, Stoke-on-Trent South)

To the contrary, no. The ayes have it, the ayes—

Tim Loughton (Conservative, East Worthing and Shoreham)

Oh, did we get that one?

George Stevenson (Labour, Stoke-on-Trent South)

I apologise—my hearing aid cannot be working properly. Let me try again.

Question put, That the amendment be made.

Amendment negatived.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clauses 20 to 40 ordered to stand part of the Bill

Clauses 50 and 51 ordered to stand part of the Bill

Adjourned till this day at half-past Two o'clock. {**vert_rule**}

Special Standing Committee

Adoption and Children Bill

Tim Loughton (Conservative, East Worthing and Shoreham)

On a point of order, Mrs. Roe. You will know that when the knife came down this morning the Committee had scrutinised four clauses and partly scrutinised another clause and another amendment, which left 22 clauses and 22 amendments completely unscrutinised. However, in the melee of the guillotine, you may not be aware that we were in the middle of debating amendment No. 43, which was tabled in my name and that of my hon. Friends. Mr. Stevenson, who was in your place, brought down the guillotine and put the amendment to the vote.

The Labour Members must have been greatly compelled by the force of my amendment, as nearly all of them voted aye to that amendment. Mr. Stevenson declared, ``The ayes have it, the ayes have it.'' We were content that our amendment had been duly taken and recorded as such. However, Mr. Stevenson subsequently admitted to a little confusion and took the vote again. I wonder whether you could rule on the directions in ``Erskine May'' about rerunning votes that do not go as the Government want them to, and whether Mr. Stevenson was in order.

Marion Roe (Conservative, Broxbourne)

I understand that there was some confusion over the question relating to amendment No. 43 this morning, which was why Mr. Stevenson decided to put the question a second time, and that was certainly within his power. The amendment was then negatived. Clause 41 Child to live with adopters before application

Clause 41 - Child to live with adopters before application

Robert Walter (Conservative, North Dorset)

I beg to move amendment No. 25, in page 25, line 20, leave out `ten' and insert `thirteen'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendments: No. 26, in page 25, line 22, leave out `six months' and insert `thirteen weeks'.

No. 27, in page 25, line 26, leave out `one year' and insert `thirteen weeks'.

No. 28, in page 25, line 29, leave out from `than' to end of line 30 and insert `thirteen weeks'.

Robert Walter (Conservative, North Dorset)

I hope that there will be no confusion over these amendments, because they seek to remove confusion. I was perturbed to read the clause, because as a reasonably intelligent Member of Parliament, I found it peculiar that different time factors related to different forms of prospective adopters. If I find that confusing and muddling, heaven knows how prospective adopters might find it, especially if they fall into more than one of the categories.

I will discuss amendment No. 25 before turning to the amendments grouped with it, which are all essentially along the same lines and seek to find a way of providing some simplicity for the prospective adopter and to work in the best interests of the children who are being adopted.

Amendment No. 25 applies to line 20, in subsection (2), which states:

``in the case of an application by a married couple, with one or both of them at all times during the period of ten weeks''.

In other words, the child must have lived with one or other partner for 10 weeks during the period preceding the application.

At first, that seemed reasonable, but when I read the rest of the clause, it began to dawn on me that it might not be so reasonable. If the applicant is a step-parent, the period suddenly changes from 10 weeks to six months. It is apparently okay for an application to be made when the applicants are unknown to the child but the child has lived with them for 10 weeks, having been placed there by an adoption agency. On the other hand, that period changes to six months when the applicant is known to the child, as his or her step-parent. The clause continues by stating that if the applicants are foster parents—and therefore well known to the child, unlike the applicants in subsection (2)—they must have the child living with them for a year before they can make an application.

The clause continues until we reach the point dealt with in amendment No. 28, in line 29. Subsection (5) states:

``In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a married couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.''

Why do we jump from 10 weeks for one case to six months for another, one year for another, and three years out of five for yet another? Such differing times will lead to a great deal of confusion. The legislation that we make here should be as simple and readily understood as possible.

My amendments are to some extent probing amendments, because there is nothing magic about 13 weeks, just as there is nothing magic about 10 weeks, six months, one year or five years. However, in the case of children's welfare, delay is not something that we should encourage through legislation. In previous sittings, we emphasised the fact that we do not want excessive delay that prevents children from being adopted. Some of those subsections seem to encourage delay and create inconsistency in the treatment of prospective adoptive parents.

The amendments would simply remove confusion from the legislation, avoiding delay and looking after the best interests of the child while enabling an easier understanding of the law by those wishing to adopt. I hope that the Minister will look kindly on my amendments, and, if she is not prepared to accept them as they stand, will redraft them in an alternative form.

Tim Loughton (Conservative, East Worthing and Shoreham)

I shall speak briefly in support of the amendments, which were moved so ably by my hon. Friend the Member for North Dorset (Mr. Walter). For reasons mentioned earlier, this is a complex Bill and we need to do all that we can to make it simple, straightforward, logical and understandable. There also needs to be a greater degree of equity in how we deal with the different types of people who qualify to adopt children.

My hon. Friend rightly pointed out the enormous disparity between the qualifying times for different people and the fact that overall it seems to foster delay rather than curtail it. The overriding consideration, subject only to paramountcy, which we discussed on clause 1, is set out in subsection 1(3), which states:

``The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.''

In later clauses, we shall be defining delay and how one can go about curtailing it.

The average periods set out in the Bill are too long. If the Bill is structured properly and if the regulations that eventually accompany it do the job properly, we should be able to speed up the process. One of the main considerations behind the Bill was to speed up the process. The average adoption time is two years and nine months, but although the average adoption time for babies is much shorter it is now beginning to lengthen again. Urgent action is needed.

The other overriding principle behind the Bill is the need to speed up the adoption of children in care; that is particularly relevant for children who are threatened in their current environments. Later clauses deal with the relative merits of whether couples who adopt children should be married. By my calculation in the table of who qualifies and for how long, married couples are given the prime, short time of 10 weeks' scrutiny, as my hon. Friend pointed out. Step-parents have six months, which makes them 2.6 times less suitable to qualify for a quick adoption, yet step-parents form one of the largest part of adoptions.

Many adoptions are not of babies coming to a completely different family—last year, only 200 babies were adopted by new families—but are adoptions by existing step-parents who want to regulate an existing relationship. We then move on to foster parents, who have a year, which makes them five times more vulnerable to scrutiny than married couples. Ultimately, all the others not yet mentioned have three years, which means that they require 15 times more scrutiny.

Those variations are completely out of synch. It behoves the Minister to justify those figures. Perhaps it is existing best practice, which needs to be justified if it is to remain best practice under the Bill. Perhaps new research and new guidance leads the Government to believe that those long times and those differentials are necessary. I support the thrust of my hon. Friend's argument and his reasons for probing the Government. We want ultimately to shorten the time that it takes before children can be properly settled in a stable environment and become the adopted children of whoever the adoptive parents or guardians are to be.

Jonathan Djanogly (Conservative, Huntingdon)

I, too, support the amendments tabled by my hon. Friend the Member for North Dorset. I agree that the times often seem irrational. If a child lived with adult friends who wished to adopt it, but the child was not placed, I believe that the three-year rule would come into play. If it were an older child, those three years could make the process irrelevant in practice. Missing from the provisions is what the child may want. If that older child were to consent to the process, it could be realistic for the three-year rule not to apply. I leave that thought with the Minister.

Jacqui Smith (Labour, Redditch)

I welcome you back to the Chair, Mrs. Roe. This morning's debate was constructive. We now move on to the part of the Bill that deals with the preliminaries to, and the process of, making adoption orders.

Clause 41 sets out the various residence periods—times during which a child has to have lived with the prospective adopters before an application for an adoption order can be made. It is worth pointing out that the provisions are different to those in the Adoption Act 1976. In that Act, the various periods related to the time before an adoption order was made; in the Bill, they refer to the time before the application. We believe that that is an important improvement.

Opposition Members made much of the point that we need to deliver simplicity and consistency. I disagree about the significance of simplicity or complexity; such considerations are not always paramount. As I hope to explain, it is not necessarily in the best interests of children in various circumstances that everything should be the same. One size does not necessarily fit all when talking about the complicated, difficult and serious circumstances of adoption.

Tim Loughton (Conservative, East Worthing and Shoreham)

I agree with the Minister, but she rather misses the point. We do not need simplicity by having one-size-fits-all provisions. My hon. Friend the Member for North Dorset and I are not suggesting that the same time should be given for all the categories of people listed.

Jacqui Smith (Labour, Redditch)

Yes he is.

Tim Loughton (Conservative, East Worthing and Shoreham)

He is not. The Bill should allow simplicity of understanding. Without it, delay will be caused by solicitors and lawyers in the courts arguing over the interpretation of the Bill. That is the point that we have consistently been making.

Jacqui Smith (Labour, Redditch)

My reading of the amendments tabled by the hon. Member for North Dorset is that he is arguing that the time that the child has to spend with prospective adoptive parents before an application for an adoption order can be made should in all circumstances be 13 weeks. The amendment provides precisely that, in every circumstance, the period of time should be the same.

Robert Walter (Conservative, North Dorset)

The Minister is correct; I am looking for simplicity by wanting 13 weeks, but that would be a minimum. I would expect that the courts would take account of the other matters when considering whether to make an adoption order. If the court felt that enough time had not elapsed, and I am sure that the adoption agency would have come to the same conclusion, more time would be required. I suggest that there may be circumstances, particularly when dealing with foster parents or step-parents, when a term of less than six months or a year would be more appropriate if we are to avoid delay.

Jacqui Smith (Labour, Redditch)

When I have made a little more progress, I shall come to specific exceptional circumstances. However, it is important that we go through in some detail the justification for the different time periods in the Bill. I hope that I shall be able to reassure members of the Committee by doing so.

Amendment No. 25 concerns the minimum period for which the child must have had his home with the prospective adopters before an application to adopt may be made. It applies in cases where the child has been placed through an adoption agency—that is, in agency cases. I am not sure whether Opposition Members are uninformed or whether they had mischievous reasons, but they tried to suggest a distinction between married and unmarried people. However, the real distinction is between agency and non-agency cases and between different sorts of non-agency cases. I shall explain the importance of that later.

The objective of the requirement for a minimum period is to ensure that the child and the prospective adopters have the opportunity to form a relationship such as to justify an application for adoption. Importantly, it would also ensure that the agency had sufficient opportunity to see the applicants with the child, as subsection (7) requires. The amendment would increase the period from the Government proposal of 10 weeks to 13 weeks.

The 13-week figure was included in the draft 1996 Bill. However, responses suggested that it could be cut. Hon. Members have echoed the concerns that have been expressed about the effect that the provision would have, particularly on baby adoptions. Those concerns reflect the fact that the period now runs up to the point of application for the adoption order, rather than the point at which the final adoption is made, as in the 1976 Act. There was concern that babies would be adopted later, despite the fact that speed can be especially important when a child is very young. We therefore took the view that the 13-week period could be cut to 10 weeks. Such a period would still provide sufficient opportunity for a relationship to be formed and for the agency to see the child with the applicants, while going some way towards counteracting any increase in the time before final adoption. That is the position on the time period for all agency placements. Hon. Members will be aware that much of the discussion about placement arrangements has focused on agency cases. We are talking about a large number of adoption circumstances.

Amendments Nos. 26, 27 and 28 concern the time periods that will apply in non-agency cases, and I hope that hon. Members will recognise that important distinction.

Jonathan Djanogly (Conservative, Huntingdon)

Is not the end result of the measures in the Bill that people are forced down the agency route? Will we not put more pressure on social workers and the court system, because people will turn to them for speedy determinations?

Jacqui Smith (Labour, Redditch)

This is not about forcing anyone to do anything. I shall come to why important differences in agency placements make it reasonable to apply a shorter period to them than to non-agency placements.

In something as significant as adoption, it is in the interests of the child's welfare to ensure that the child and applicant have had a proper opportunity to establish a relationship such as to justify the making of an application to adopt. That is particularly important in non-agency cases, in which there are none of the safeguards of placement through an adoption agency. The longer period that applies to non-agency cases will, therefore, be in the interests of the child's welfare.

For placements through an adoption agency, the agency adoption panel will have approved adoption as being in the child's best interests after thoroughly examining the issue. The prospective adopters will have been rigorously assessed, and the match between the child and the adopters will have been carefully considered. None of those safeguards are in place in non-agency cases. That is why the difference between agency and non-agency placements is important.

Robert Walter (Conservative, North Dorset)

The Minister may be moving on to this, but let me give an example of what might be regarded as an agency case: the prospective adoptive parents might be the child's foster parents. They would not qualify for the 10-week period under the Bill; they would have to wait six months. There is surely a discrepancy in that regard.

Jacqui Smith (Labour, Redditch)

I thank the hon. Gentleman for that, but he is mistaken. Foster parents who want to adopt will be able to take two routes: a non-agency route, with the time scales that I am about to discuss, and an agency route, which I have outlined. [Interruption.] That is most certainly what the Bill says, and that is the intention. It is open to local authority foster carers to take an agency route.

Amendment No. 26 concerns the residence period for step-parents. The 1996 draft Bill proposed introducing a three-year residence requirement for step-parents. However, given that such adoptions involve one of the child's birth parents, the residence period need not be as long as that for non-agency stranger adoptions. That is why the Bill provides for the period to be six months. Step-parent adoption involves severing the legal relationship between the child, the other birth parent and the wider circle of relations. There should be a route whereby step-parents can acquire legal parental responsibility for a child of their spouse without disrupting wider legal relationships. That is why clause 107 provides a new route to enable a step-parent to acquire parental responsibility for the child of their spouse by agreement between the step-parent and all those with parental responsibility or by order of the court.

The amendments also raise the issue of local authority foster carers who take a non-agency route. The clause states that they can apply to adopt a child who has been with them for 12 months, whether the local authority approves or not. As I tried to spell out earlier, it would be open to them to apply earlier as an agency case, with the agreement of the local authority. That is similar to the position in the 1976 Act, under which an adoption order may not be made in non-agency cases—including those involving local authority foster carers—unless the child has been with the adopters for 12 months. As with all the residence requirements in the Bill, the 12-month period now runs up to the point of application, not the point at which an order may be made. That is a more sensible approach, given the variable length of court proceedings. We have shortened the time for foster carers that was proposed in the 1996 draft Bill, which provided that they could not begin to give notice of their intention to adopt without the local authority's consent unless the child had been with them for three years.

Amendment No. 27 would allow foster carers to apply to adopt a child without the approval of the local authority when the child had been with them for 13 weeks. That would be a substantial change from the position in current legislation, in which, in foster carer non-agency cases, an adoption order may not be made until the child has made his home with at least one of the applicants for 12 months. That change could risk creating a deterrent to families that use voluntary accommodation under section 20 of the Children Act 1989, as they might perceive that a foster carer could apply to adopt their child after 13 weeks.

We also need to consider the interests of the child. For something as significant as adoption, it is important that the child and applicant have a proper opportunity to establish a relationship that justifies the making of an application to adopt. That is especially important in non-agency cases, as I suggested, when none of the safeguards of placement through an adoption agency apply, and when the child has not been matched or placed with the foster carers with a view to adoption.

Local authority foster parents will be able to seek formal approval from the local authority as prospective adopters for children for whom they are caring. Clause 19 provides that the authority may leave the child with them if they are approved as prospective adopters. That counts as an agency placement under the placement provisions. If a local authority does not approve them as prospective adopters or agree to them adopting, the foster carers can still seek to adopt a child for whom they are caring by independently giving notice of their intention to apply to adopt the child as a non-agency case, providing that the child has been with them for a year. The one-year period relates to such cases.

A point was made about specific circumstances. If the child has been with the foster carers for less than a year but they still want to apply to adopt without the authority's agreement, they can seek the leave of the court to make an earlier application under clause 41(6).

Amendment No. 28 deals with other non-agency applications, which could include those when private foster carers or relatives proposed to adopt the child. The Bill provides that the application may not be made unless the child has lived with the prospective adopters for three of the previous five years. That was the approach suggested in the 1996 draft Bill, and it was generally supported in the consultation on this Bill. It is broadly consistent with the provisions in the Children Act 1989 that govern applications for residence orders, under which anyone with whom the child has lived for three of the previous five years is entitled to apply automatically.

The amendment would cut the residence order to 13 weeks, even though an adoption order may currently not be made in non-relative or non-agency cases unless the child has been with the adopters for a year. The Government cannot accept the amendment for broadly the reasons that I have given, which were about what was in the child's interest in non-agency cases.

Jonathan Djanogly (Conservative, Huntingdon)

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 (Labour, Redditch)

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.

Robert Walter (Conservative, North Dorset)

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.

Clause 45 - Conditions for making adoption orders

Tim Loughton (Conservative, East Worthing and Shoreham)

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.''

Hilton Dawson (Labour, 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 (Conservative, East Worthing and Shoreham)

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.

Jacqui Smith (Labour, Redditch)

The clause sets out three conditions, one of which must be satisfied before the court can make an adoption order. First, the court must be satisfied that the parents have consented, either at the time or in advance under clause 19. We had significant discussions this morning about the safeguards and the process relating to support for birth parents in making that decision and the extent to which it is possible for birth parents to withdraw that consent. The Government responded this morning to some of the issues that the hon. Gentleman has raised this afternoon.

The court must be satisfied that the parents have consented, or that the parents' consent should be dispensed with on the grounds of the child's welfare. That is line with clause 1, which makes the child's welfare the paramount consideration in all decisions relating to adoption.

To reassure the hon. Gentleman about human rights compliance, it would be—

Sitting suspended for a Division in the House.

On resuming—

Jacqui Smith (Labour, Redditch)

I was in—full flight might be too strong a phrase—some sort of flow before we suspended.

Tim Loughton (Conservative, East Worthing and Shoreham)

Some sort of a flow chart.

Jacqui Smith (Labour, Redditch)

A flow chart—yes.

I was about to reassure the Committee about the court process—in relation to our discussion on clause 1—to dispense with parents' consent. The court will consider whether a placement order or an adoption order is in the child's best interest. It must give regard to all the factors in the checklist in clause 1(4) and conduct a cost-benefit analysis from the child's point of view. The welfare checklist specifically recognises the child's relationship with his parents and their ability to provide the child with a secure environment in which he can develop and that meets his needs. In accordance with clause 1(6), the court must consider alternatives to adoption and decide whether making an order would be better for the child than not doing so.

If the court decides that an order would be in the child's best interest and the parents give consent, the court must make the order. If the parents do not consent, the court must decide whether that consent should be dispensed with, which will be done only if the court is satisfied that the child's welfare requires consent to be dispensed with. When that judgment is made, the court must give regard to the parties' rights under the European convention on human rights and convention case law. The Bill is ECHR-compatible because the court has discretion and can weigh up rights in that situation. The hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned compatibility with article 6 of the convention. I hope that I can reassure him and address further issues that he raised about parents' consent.

In a agency case, the matter of birth parents' consent will have been dealt with at the time of application for an adoption order. The birth parents will either have consented to placement, with the safeguards and processes that we have discussed, or there will be a placement order. Such issues are dealt with early in the placement process to avoid the birth parents facing a fait accompli. Parents and guardians will be notified of the hearing unless advance consent is given. If they wish to oppose the making of the adoption order at that stage, they must seek the leave of the court, which may be granted only if there has been a change of circumstances. The door is, therefore, left open for cases in which the court is satisfied that there has been a significant change of circumstances.

Obviously, the circumstances of the case will influence whether there is an interpretation of change of circumstance. However, such factors that we envisage that would represent a change of circumstances are successful drug or alcohol rehabilitation or recovery from mental illness to allow the parent to care for the child, or the identification of a previously unknown natural father who is willing and able to provide a home for the child. Article 6 of the convention, therefore, is satisfied.

In placement order cases, there will be a court order to determine the parents' rights. In placement by consent cases, if the birth parents wish to oppose the making of the order, the court will decide whether they should do so. Article 6 is also satisfied in that instance. The court must give regard to the convention when making the adoption order.

The hon. Gentleman asked whether parents will be informed about the final adoption hearing, and they will. This morning, we discussed provisions in clause 126 that provide that parents must be informed about the final adoption hearing. They must be notified of the hearing and the agency must keep them informed of the stages of the process. That is set out in regulations. I hope that I have covered some of the hon. Gentleman's points. I have described the first of the three conditions in the clause.

The second condition is that the child has been placed for adoption through an adoption agency, either with consent, or under a placement order. In both of those cases, the birth parent can oppose the making of the final adoption order only with the leave of the court. That provision has been discussed, and concern has been expressed about it. A difficult balance must be struck between the stability and security of the child, the needs of the prospective adopters, and the needs of the birth parents. The provisions should reduce the number of contested final adoption hearings, which will provide greater stability for the child, and security for prospective adopters. That will benefit children and prospective adopters, by seeking to deal, as far as possible, with the issue of consent to adoption and placement for adoption at an earlier stage in the process, through the new placement provisions.

The benefit for birth families comes earlier in the placement process. We have discussed that. Where they do not consent to placement, there must be a court hearing, and a placement order must be made before the child can be placed. That is in contrast to the current position, where children in care may be placed for adoption without the consent of the birth parents, who can then find themselves faced with something of a fait accompli at the adoption order hearing, as the child might have been placed with the prospective adopters for several months. As I have emphasised, where a placement has been made with the consent of the parents, the parents are free to withdraw that consent until the moment when the application for the adoption order is made.

The third condition is that the child is freed for adoption by virtue of a pre-existing freeing order. One of those three conditions must be met for the court to be able make an adoption order.

Jonathan Djanogly (Conservative, Huntingdon)

I wish to address the issue of the child's consent, which has human rights implications. We discussed the matter in relation to clause 1. It is unfortunate—and symptomatic of the bizarre timetabling—that we were unable to speak about the matter in the context of placement, because, as the Committee has recognised, that is now the key stage. As that opportunity has gone by the wayside, it is important that we discuss the matter in the context of adoption orders.

Shortly after I raised the issue in debating clause 1, the Committee adjourned for lunch—

Henry Bellingham (Conservative, North West Norfolk)

I did not have lunch. I had business to attend to.

Jonathan Djanogly (Conservative, Huntingdon)

Well; during lunch, I received a paper from the Adoption Law Reform Group, which has been briefly mentioned by my hon. Friend the Member for North Dorset. I want to refer to it again, as it addresses important issues that we have not adequately covered.

The Adoption Law Reform Group is linked with other bodies, such as the British Agencies for Adoption and Fostering and the National Organisation for Counselling Adoptees and Parents. Its paper states that the wishes and feelings of the child should be taken into account: any decision on adoption should involve the formal agreement of a child. It also notes that the adoption law review, in its report to Ministers of October 1992, recommended that the agreement of a child over the age of 12 should be required. The draft Bill of 1996 included such a provision.

The paper also states:

``the lack of a formal process for obtaining the child's consent runs the risk that insufficient weight will be attached to the child's views.''

Its specific suggestions are that,

``As a party to the proceedings, the child, subject to his or her age and understanding, should have the following opportunities: to consent to adoption; to refuse consent to adoption; to decline to give or refuse consent; to give full expression, with appropriate help, to his or her wishes and feelings in connection with the application.''

Finally, the paper states,

``In giving its decision the court should be required to explain how it has taken the child's wishes and feelings into account.''

Liz Blackman (Labour, Erewash)

Does the submission that the hon. Gentleman has just read out have regard, at any point, for the enormous pressure put on young people going through the adoption process by birth parents unduly pressurising them not to consent? The Minister mentioned the links that children continue to have with birth parents, even though there may have been significant abuse. Are those issues addressed?

Jonathan Djanogly (Conservative, Huntingdon)

Yes, indeed they are. The submission refers to the concern that

``it may place too painful a burden on the child to ask him or her to `sign away' the birth family.''

However, it states that, on balance, it is correct that the child has such rights. The child's rights are dealt with under the Human Rights Act 1998, and that will lead to problems in the future if we do not address the matter now.

Jacqui Smith (Labour, Redditch)

It might be helpful to respond to the point about consent. I have a problem with the hon. Gentleman's points with regard to the use that he makes of the understandable concern that is shared by all members of the Committee and the Government to ensure that the child's wishes and concerns are taken, recorded, listened to and represented to the court, and that there is a clear process for doing that. There is a distinction between that and the burden and pressures placed on a child by introducing into legislation a requirement for the child's consent to a placement and adoption order. I refer hon. Members back to some of the questioning in the evidence sittings last week, when we probed the extent to which some of those giving evidence felt, as we all do, that it is good practice that children's views should be gathered and represented to the court. The difference between that and introducing a requirement for consent, and the guilt that that would cause to the child—

Jonathan Djanogly (Conservative, Huntingdon)

I only want to make the point that the memorandum is dated 21 November, which must have been after or very close to the dates on which we heard evidence. I apologise for not remembering the exact dates. The document is signed by Adoption UK, the Association of Directors of Social Services, British Agencies for Adoption and Fostering, the British Association of Social Workers, the Catholic Child Welfare Council, the Consortium of Voluntary Adoption Agencies, the Family Rights Group, the National Children's Bureau, the National Organisation for Counselling Adoptees and Parents, the Natural Parents Network, and the Overseas Adoption Helpline. That is a comprehensive list, and they all say the same thing.

Jacqui Smith (Labour, Redditch)

My argument still stands in relation to whether, in all circumstances—this would be the effect of some of the amendments tabled by the hon. Gentleman—the consent of the child would be necessary for a placement or adoption order. That is our concern. The provisions in the Bill, and the reassurances that I have given previously to the Committee about the processes through which we will ensure that the child's wishes and interests are heard and represented, are appropriate. For those reasons, I commend the clause to the Committee.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I wish to ask the Minister about subsection (3) and the consent of the parent or guardian. If a parent has signified consent in general terms to adoption, but dislikes the particular proposal for adoption, does he or she have to cross the bridge of applying to oppose the making of the order, or can he or she do so as of right? It may confuse many people if, on the one hand, they can withdraw at will their consent to adoption but, on the other hand, require leave to make such a withdrawal.

Jacqui Smith (Labour, Redditch)

Whether the parent or guardian has to ask leave to be a party to the proceedings and to oppose the final adoption order is based on the point in the process at which we have arrived. If the placement is by consent, up to the point when an application order is made the parent can withdraw his or her consent. After that time, the parent can make an application to the court for his or her objections to be registered on the basis that there had been a change of circumstances.

I have spelled out clearly the balance that must be achieved between the needs of the birth parents, the prospective adopters and the child, and where their relative needs are represented in the course of the process. The Government believe that such a reasonable balance affords all parties ample opportunity to have their views heard throughout all stages in the process. It also ensures that there is some certainty as we near the end of the process, having given consideration to consent earlier because of the placement provisions.

Question put and agreed to.

Clause 45 ordered to stand part of the Bill.

Clause 46 ordered to stand part of the Bill.

Clause 47 - Applications for adoption

Jonathan R Shaw (Labour, Chatham and Aylesford)

I beg to move amendment No. 118, in page 28, line 34, leave out `married'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to consider the following amendments: No. 119, in page 28, line 38, leave out `spouses' and insert `applicants'.

No. 120, in page 28, line 41, leave out `spouses' and insert `applicants'.

No. 121, in clause 48, page 29, line 8, leave out `married'.

No. 122, in clause 48, page 29, line 9, leave out `spouses' and insert `applicants'.

No. 123, in clause 48, page 29, line 10, leave out subsection (2).

Jonathan R Shaw (Labour, Chatham and Aylesford)

The issue was debated at great length during the evidence-gathering sittings. It was a key matter in which all members of the Committee showed an interest when they cross-examined the witnesses. As I recall, 30 witnesses gave evidence, 29 of whom believed that children should have the opportunity to be adopted by unmarried couples as they have the opportunity to be adopted by single persons and married couples.

We must ask ourselves whether it is inconceivable for us to consider circumstances in which the children's greatest needs would not be met if they were unable to be placed with an unmarried couple. Do we believe that one size fits all? Opposition Members believe that the child's rights should be put to the fore. If we believe that and the child says, ``These are the parents who I want to live with. These are the people I want to be with permanently, not just up to 18 years old, but for the rest of my life'', surely we can imagine circumstances in which that might happen.

Under previous clauses, the hon. Member for East Worthing and Shoreham said that he wanted to get rid of inequalities in respect of those who are eligible to adopt.

Tim Loughton (Conservative, East Worthing and Shoreham)

Did I?

Jonathan R Shaw (Labour, Chatham and Aylesford)

I think that the record will show that the hon. Gentleman did. Under the Bill, there are inequalities that make people ineligible to adopt. The best interests of the child are fundamental. As I said at the beginning of our proceedings on Tuesday, we do not want hard and fast rules; we want flexibility to be able to meet a child's needs. We all agree that we do not want delay or political correctness, whether left-wing or right-wing—

Tim Loughton (Conservative, East Worthing and Shoreham)

What is that then?

Jonathan R Shaw (Labour, Chatham and Aylesford)

When the issue arose on Second Reading, the hon. Gentleman said, ``I'll duck this.'' I wonder whether he will duck it on this occasion. [Interruption.] He can check the record again; it is there for all to read.

We need to consider race, religion and linguistic aspects and all the other demands at once when trying to find the right place for a child. We all broadly agree with those demands and we want to increase the adoption rate by 40 per cent. That is a tall and ambitious order, but it is right and we all support it. Children should have the opportunity to be adopted; they should not have to languish in care. That is what the amendments are about and they would strengthen the Bill.

We have a huge responsibility. We know the benefits of children moving to an adoptive placement, compared with moving from one foster carer to another, and what it does for their social, welfare and life opportunities. I know that from having worked in the system for 10 years. We have an enormous responsibility, and an opportunity that comes along once in a generation to get the legislation right for children. Hon. Members must seriously consider the fact that the Bill as drafted will prevent children from being adopted by appropriate and loving parents.

We know what the optimum is: prospective adopters would be married and would meet the racial, religious, linguistic and cultural needs. Child and parents would be the perfect match and would have a supportive network. However, perfect families are not always available. That would take the notion that all children looking for adoptive families were white and middle-class, but our society is not like that. If only things were that easy, we might not need additional legislation—but life is complicated. Children who come into the care system have been sexually, physically and emotionally abused. They have been damaged, and the demands on adopters in looking after them are considerable.

There are some excellent clauses to deal with post-adoption support, but children need to find permanent homes first, and finding the right family is not always easy. Should we say that only married couples or single parents can adopt children? That is an ideological position. On the other hand, if we believe that that is best practice and will provide the best opportunity, let us have that debate.

Hilton Dawson (Labour, Lancaster and Wyre)

Does my hon. Friend agree that it is hypocritical that although, presently, couples living together and gay couples may adopt children, only one person in such relationships can be the adopter? Is that not a poor way of bringing up children and an inadequate message to give to children and young people?

Jonathan R Shaw (Labour, Chatham and Aylesford)

I agree with my hon. Friend. The situation involves a second-class parent. A child may have a mum or dad, but not a mum and dad. What do we call the second-class parent in that family? The situation flies in the face of all the evidence that we heard and the overarching principles of the Bill.

It is not easy to find the right families. We remember my hon. Friend the Member for Stockport (Ms Coffey) talking about trying to find a quarter Pakistani family for a quarter Pakistani child. Let us suppose that such a family was found, and they happened to be an unmarried couple. Let us suppose that the child lived with that couple as his foster carers, that they wanted to adopt the child, and that everybody thought that such permanency was correct for the child, but that, for a variety of reasons, the couple were unable or unwilling to marry. The Bill would deny the child an equal mother and father. That is the key test. If we can argue that it is in the child's best interest not to be placed with the couple, or that it is better for one parent to have a higher status, let us hear that argument. If we agree with my earlier point about equal parents, we have an ideology that does not work in the best interests of the child. That is key.

I have not quoted from the evidence in Hansard, but all members of the Committee who heard it know that is was overwhelming. Hon. Members argued with witnesses, but in my assessment, arguments in support of the Bill as it stands floundered. I am keen to hear what my hon. Friend the Minister will say. She has done a magnificent job in introducing the Bill so early in the Parliament—there is adoption legislation only once a generation—and starting the process by ensuring that we have good quality witnesses.

Henry Bellingham (Conservative, North West Norfolk)

I accept entirely what the hon. Gentleman said about the Minister's effort and work on the Bill. She has done a superb job and should be applauded. I respect the hon. Gentleman's professional background. Does he agree, as a professional, that it is a pity that we are debating under a programme resolution that curtails debate on a Bill as technical and lacking in controversy—except on one or two clauses—as this?

Jonathan R Shaw (Labour, Chatham and Aylesford)

We should have ample time to debate the controversial issues; deciding which bits of the Bill are controversial is a matter for his hon. Friends. I am happy and content with the programme resolution—I do not want to upset my hon. Friends too much.

Many aspects of the Bill are welcome. Prior to the Special Select Committee before the election, I spent time with adoption professionals in my constituency. They welcomed the old Bill, but raised several issues with me, which have since been dealt with by the Government in the new Bill. If the Bill is concerned with the child's best interests and tapping a pool of adopters so that we can meet the 40 per cent. target, we should agree to the amendment and act in the child's best interests.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I shall be brief because other Members want to contribute.

I agree with the amendment of the hon. Member for Chatham and Aylesford (Mr. Shaw). There are many worthy measures in the Bill, but if we do not address this issue, we will undermine the credibility of the exercise. There should be a blanket ban on unfit adopters only. A blanket ban on the basis of marital status is Victorian, old fashioned and somewhat ridiculous. One argument that will no doubt be put is that far more unmarried couples split up than married couples. Whether that is true, it has no moment in this debate, because we are dealing only with people who qualify as adopters. Many married couples will not qualify; many unmarried couples will not qualify. I cannot logically work out why, in the best interests of the children, the Government have set their face against allowing unmarried couples to adopt.

We all took part in the evidence-gathering sittings and heard an overwhelming amount of evidence in favour of allowing unmarried couples who qualify as good adopters to adopt. The Minister said that she had made a compelling case in response to an earlier amendment; it is only infrequently that I hear a compelling case being described as such by the proposer. With the greatest respect to the Minister, I must say that there is a compelling case for the amendment.

Kevin Brennan (Labour, Cardiff West)

I thank you for chairing today's deliberations, Mrs. Roe. This is the first time that I have spoken in a Standing Committee other than in an intervention, and our proceedings have been an education. If someone carried out a word search of them, the words that would jump out would be ``probing'' and ``teasing''—and perhaps ``circumcision''. I have certainly learned some new parliamentary terms. I have learned also that it is customary for the Opposition to complain, at great length, about the time that we have for debate. Yet, in this morning's proceedings, the hon. Member for East Worthing and Shoreham welcomed the Chairman to ``our mammoth sittings''. I am not sure how those two complaints square with each other.

In discussing the amendments, we should return to the principle at the heart of the Bill—the welfare of the child throughout its life. We all accept that society has changed since 1967 and the height of the period when unmarried mothers gave up babies for adoption. Adoption itself has also changed, and the two changes are intimately related. The lack of social acceptance of birth outside marriage at that time led to unmarried mothers giving up their babies. Because they knew that I was on the Standing Committee for the Bill, I was approached by several Members of Parliament from both sides of that equation. Some gave up their babies for adoption many years ago and others adopted many years ago.

We must accept that with more and more children being brought up outside marriage few babies are given up today. It is increasingly common for unmarried people to adopt babies, but they are allowed to do so only as individuals. In many cases that approach is not necessarily in the best interests of the child. The child may have the right, if it is possible, to have two parents and two sets of grandparents. The child may have the right, if it is old and mature enough, to say which parent it would like to stay with in the event of a break-up of an unmarried adoptive couple's relationship. When only one parent is allowed to adopt, that decision is already taken for the child.

It is wrong to say, as the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) did a moment ago, that the Government have set their face against this. The Secretary of State made it clear on Second Reading that that was not the case and that the Government are minded to hear the arguments. I know that the Minister is minded to hear the arguments. That is the purpose of our deliberations today. I also understand that there are broader ramifications, beyond the boundaries of the Bill, in changing the law to allow unmarried couples to adopt, including matters such as the civil registration of partnerships. Therefore, it may not be appropriate to press the amendments now.

Just as we should not lose sight of the welfare of the child in a haze of political correctness, as my hon. Friend the Member for Chatham and Aylesford said earlier, we should not lose sight of the welfare of the child in a blaze of political bigotry. The law should not be a sham. Do we really believe that the situation where a single person adopts and brings up a child alone—or where an unmarried person adopts as an individual and brings up a child together with a partner—is so superior to the situation where an unmarried couple adopts together that the latter should be banned? That is the key question. I welcome the genuinely open approach that the Government have taken on this matter. I hope that we will have further debates on it as the Bill progresses.

Sandra Gidley (Liberal Democrat, Romsey)

One of the things that struck me when I became involved in the Bill was how little I knew about adoption, and how the sort of children who are being adopted has changed over the years. Many people still have an image of nice pink little babies. However, the vast majority of children who are put up for adoption are damaged in some way. The hon. Member for Chatham and Aylesford referred to sexual abuse. When a child has been sexually abused it might be totally inappropriate to put her near someone who might remind her of that abuse. Another type of couple might be better in such cases.

What struck me during the evidence sessions was the overwhelming consensus that the needs of the child are paramount. If that means that the best available placement is not with a married couple, we should be free to place that child where it would find love, care and understanding. I hope that the Minister has taken note of that consensus. I know that there are far-reaching consequences if we decide to amend the Bill, but Members of the Committee should send a signal that that is right on this occasion. We should not say, ``Well, now is not the time. We need to go down the civil registration partnerships route, and then we might resist it in some way.'' We will not have a chance to revisit the matter for a long while.

I hope that the amendment will be pressed to a Division, and I hope that Labour members of the Committee, who have spoken so eloquently about the matter, will have the courage of their convictions, and vote in accordance with their remarks.

Liz Blackman (Labour, Erewash)

Unlike several of my hon. Friends, I do not have a social services background. However, I did teach for a long while, and a local authority children's home was situated in the catchment area where I taught, so some of the children who resided at the home attended my school. It was noticeable that, as they grew up and passed through the school, the self-esteem of those children fell dramatically, and they fell behind in terms of academic achievement. Many of them became involved on the fringes of criminal activity, and, lamentably, I heard that some of them, after they left school, went to prison. We are therefore discussing a group of damaged young people, and it is important that we try to enable adoption of such children to be more effective and speedy.

The changes in those children were very apparent. Whatever situation they were in when they entered the children's home, it became worse over time—and I witnessed that process, as I taught at the school for a long while. With such damaged children, we must look for couples and individuals with enormous emotional resources who can make a difference to their lives. They are special people; they are prepared to commit to taking those children on—to loving and supporting them, and to nurturing them through to successful and healthy adulthoods.

It is right that the paramount importance of the child's welfare is at the heart of the Bill. I know of numerous examples of unmarried couples who have fitted the bill with regard to the adoption of certain children, and they have done a jolly good job of bringing them up. There is a good chance of getting a good match and a successful adoption if, right at the start, in the assessment process, whoever is doing the assessing can see the quality of the relationship of a couple, or the environment provided by a single person, and can identity what they might have to offer to a child. It is therefore unsurprising that the majority of the witnesses from whom we heard last week supported the view that what is important is not whether a couple are married or not, but the quality of their relationship, and the match with the child—whose welfare is of paramount importance.

I am not copping out, as has been suggested, when I say—after having given the matter considerable thought, and after having read through the evidence again—that if we passed the amendments, that would be a mere token gesture, as the overarching legal framework needs a root and branch review. I hope that the Minister will say something about the Government's intention to reconsider the legal framework in respect not only of adoption but of its wider effect on several different issues, which I shall not go into, which I also see as nonsense. I hope that there is a review and that we will make changes, because if people are prepared to put themselves forward to adopt challenging, needy children we should have the decency to allow both partners of an unmarried couple to have a legal relationship with the child and, most importantly, allow the child to have a legal relationship with both the partners who make that commitment.

Julian Brazier (Conservative, Canterbury)

I have a sincere respect for the proposer of the amendment, the hon. Member for Chatham and Aylesford, for several of his hon. Friends who supported him, and for my hon. Friends. I agree with the hon. Member for Meirionnydd Nant Conwy on many things, although I cannot pronounce the name of his constituency, and I am saddened that I disagree with him on the matter that we are discussing.

The difference between the Special Standing Committee, and the earlier Committee on which the hon. Member for Chatham and Aylesford and I and two other members of the Committee served just before the election is that, although it was right not to try to repeat that, there was time for the hearings to take place. The problem about trying to cram all the evidence into two days is that there was not as much scope for deliberation.

The feeling in the first set of hearings was different in several ways: first, there was strong testimony from the official on the Bill, supported by Ministers, about why the proposal would be a mistake, partly related to treaty obligations, and to other factors to which I shall come to in a moment. Secondly, several Labour Members expressed strong views against the change. I shall mention two, both of whom are now Parliamentary Private Secretaries and therefore cannot serve on the Committee. One, whom the hon. Member for Chatham and Aylesford mentioned in his speech, was the hon. Member for Stockport who spoke about a person being required to be one-eighth from an ethnic background—the fraction was seven-eighths, not three-quarters. The hon. Lady made it clear that she opposed the change. I last discussed the matter with her in the past few days—

Mr. Shaw indicated dissent.

Julian Brazier (Conservative, Canterbury)

She did indeed. It is no good the hon. Gentleman shaking his head. Her remarks are on the record. Another hon. Member who opposed the change—

Jonathan R Shaw (Labour, Chatham and Aylesford)

I shall certainly check. That is for the record.

Julian Brazier (Conservative, Canterbury)

The hon. Gentleman is welcome to check but I assure him that I last discussed the matter with the hon. Lady only two days ago. She made some remarks during the Committee so they were presumably on the record. Another Labour Member who opposed the measure was the hon. Member for Don Valley (Caroline Flint); the hon. Member for Chatham and Aylesford will surely remember her comment that she was about to get married. She made some personal remarks that I shall not repeat, but the hon. Gentleman will remember that conversation as he was there at the time.

The consensus, even in the evidence-gathering sittings—the hon. Gentleman said that only one of the witnesses spoke for the status quo—

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister went to the hon. Lady's wedding.

Julian Brazier (Conservative, Canterbury)

Oh, really? I am delighted to hear it and I hope that the hon. Member for Don Valley had a very happy day. However, she made it clear that she was opposed to the change.

During the hearings, the hon. Gentleman said that 29 out of 30 spoke strongly against the Bill's provisions—

Sandra Gidley (Liberal Democrat, Romsey)

I have the words of the hon. Member for Don Valley in front of me. She actually said that she was being devil's advocate.

Julian Brazier (Conservative, Canterbury)

I shall have to check the record, as I was speaking from memory, but the hon. Lady said that she was getting married. However, there is no question about the views of the hon. Member for Stockport on the subject. I discussed it with her a couple of days ago and she would not mind my mentioning it.

As to the supposed 29 out of 30 who spoke strongly on the matter, it is true that the vast majority of the witnesses this time were in favour of the change, but at least two spoke against it. The Adoption Forum representatives were against it.

Jonathan R Shaw (Labour, Chatham and Aylesford)

There was only one, the gentleman from the Westminster Catholic Children's Society. As I said, I accept the general principle, that of the optimum, but when I asked the Adoption Forum representatives if they thought it was inconceivable that there would not be a situation where a child's best interests would be served with an unmarried couple, they agreed with that point of view.

Julian Brazier (Conservative, Canterbury)

The lady from the Adoption Forum was pressed strongly by several hon. Members, including the Chairman, but her testimony was in favour of leaving the law as it is. As I understand it, that is the Adoption Forum's position.

I want to move from testimony to the heart of the evidence. As several hon. Members have said, in the majority of cases a child is in care for traumatic reasons. These are children with a great deal of baggage. To be faced with the prospect of another break-up would be to have a second trauma imposed on the first. The outcomes from adoption are much less bad than from any other option; two academics told us that they were the best outcome by far, a view that I have long supported—I am glad that several Labour Members are nodding—but, nevertheless, the success rate is only just over 80 per cent. The other 18 or 19 per cent. represent cases in which there is a further individual tragedy on top of the history of such events; how the children are placed is most important.

Members on both sides of the Committee share the view that more training and more resourcing is needed for social work, but no social worker, however well trained, can make a perfect assessment. However, contributing towards it are certain hooks on which we hang our coats, one of which is the massive difference between the outcomes for children in birth families whose parents marry, even though they may not necessarily have started in a married relationship—we do not have a body of evidence on adoption yet—and for their comparable peers whose parents do not go on to get married.

I cite two statistics. The first is the study based on official statistics in 1997, which looked at the outcomes of a proportion of children born in 1987 whose parents stayed together. The proportion who were still married at that 10-year point—there is a small element who were married but separated which unfortunately the study was not able to pick out—was 81 per cent. About two-fifths of unmarried parents in that same 1987 cohort subsequently got married, so they are taken out of the picture, but of the remaining three-fifths who did not get married, 85 per cent. had parted by the 10-year point.

Kevin Brennan (Labour, Cardiff West)

Should not the hon. Gentleman clarify what he is saying about married and unmarried couples? Does he think it is logical that the law should permit an unmarried person with a partner to adopt a child on their own and for the partner to be able to apply successfully for a residence order when an unmarried couple cannot adopt a child together? If his objection is to unmarried partners adopting children, the logic of his position is that that should be outlawed.

Julian Brazier (Conservative, Canterbury)

I shall come back to that in a moment, but the short answer is no—the law is correct. I have been passed the record, so let me correct the hon. Member for Romsey (Sandra Gidley) and read out what the hon. Member for Don Valley said. The devil's advocate point came further on in the text on a related issue:

``On the marriage and on the sexuality issue, when we are told that for people who want to have children—often because they cannot have children of their own—it is something that is very important to them, why then would they not see—not necessarily in church but under the law—defining their relationship in terms of a more public, legal contract as being a precursor to actually adopting a child?''

That is the heart of the argument—

Jonathan R Shaw (Labour, Chatham and Aylesford)

The heart of the argument is evidence, but the hon. Gentleman's evidence is not based on like for like. That is the problem. My hon. Friend the hon. Member for Don Valley may have said that, but there is no evidence to back it up. She was responding to a question rather than making a statement of belief.

Julian Brazier (Conservative, Canterbury)

I am not going to pursue that further. We can all examine the record later. My understanding is that the hon. Member for Don Valley took the same view as the hon. Member for Stockport. I should like to finish my main argument and give the Minister plenty of time to reply, as strong views have been expressed on the subject.

There is a massive disparity in steadiness between a typical unmarried relationship and a married one. Various studies demonstrate that. Norman Dennis, a professor of sociology from Newcastle and a life-long supporter of the Labour party, put the first set of studies together. He studied evidence relating to performance in class, likelihood of falling into trouble with the law and capacity to hold down a job. In every case, he found that—when the economic issues were removed—children from married homes did considerably better. In assessing two people who present themselves as a couple, it is reasonable to take certain factors into account as well as those that can be prima facie examined.

The hon. Member for Cardiff, West (Kevin Brennan) rightly asked why a single person in an unmarried relationship should be allowed to adopt when an unmarried couple cannot. About 95 per cent. of all adoptions in this country are by married couples. In exceptional circumstances—and I suspect that the lady from Adoption Forum touched on them—a household with a couple living together might be the best, perhaps the only, option. However, why should they both become adopters?

The most common argument is that, otherwise, the child might not feel that he or she properly belongs to both. The best way to put that right is for the couple living together to get married, which is possible in most cases. To make hard law on the basis of the few cases where that is not possible is entirely wrong. The evidence that children have the best chance of stability in a married relationship is so overwhelming that we should stay with that. It is the international legal position. We signed up to a treaty in the 1970s that affirms it. We should stand by our treaty obligations because they affirm the best interests of the child.

Robert Walter (Conservative, North Dorset)

What has emerged from the debate is the fact that all of us on both sides of the argument are concerned about putting the primary interests and welfare of the child foremost. We must take into account the fact that this is a judgment that society is making on what is the most suitable environment for nurturing children who have been put into the care of local authority or put forward for adoption. Such children will not be in adoptive households by an accident of birth; they will be there because we have placed them there in their best interests.

I am very concerned about some of the implications of the amendments. Although I am not opposed to the basic thrust of hon. Members' comments, the consequences of some of the amendments concern me. Many hundreds of thousands of men and women living together across the country are not married but in stable family relationships. What concerns me most is that the amendments would enshrine the right of gay men to adopt. That may concern other members of the Committee.

I have no problem with adult homosexual men living together; I have many friends who live in such relationships. However, I do not believe that that is suitable to bring up a young child. This is not a homophobic response; consenting adults can do what they wish in private. We are concerned with the welfare of the child.

Sandra Gidley (Liberal Democrat, Romsey)

I hope that the hon. Gentleman is going to elaborate on why he thinks that gay men are unacceptable, whereas gay women—whom he has not mentioned—might be acceptable. What is the difference as far as he is concerned?

Robert Walter (Conservative, North Dorset)

The difference is that I am concerned, on child welfare grounds, about putting a child into a relationship of that nature. In terms of a family relationship, it would be totally alien, particularly to a young child. I was about to say that I have been consistent on this matter and that it was on such a basis that I voted against lowering the age of consent. I do not believe that we should be putting children at risk.

If I may, I should like to turn to the most important part of the matter. I have sympathy with the principal provision envisaged, which is to acknowledge that unmarried couples are already recognised in a vast array of legal arrangements, whether it be mortgages, tenancies, or whatever else. I could not support the amendments if they opened the way to homosexual couples adopting. I do not think that in law we can discriminate between male and female homosexual relationships, so if they are to be eligible to adopt, single-parent adoptions will have to be the only avenue to pursue. If the Minister were minded to think along the same lines, I would suggest that there is a formula that we could adopt.

There are six amendments in the group. I might be minded to support two, but not the other four because they remove the term ``spouse''. I should be interested in the Parliamentary Secretary, Lord Chancellor's Department intervening on me, as I have done a little research into this subject. I am grateful to the Library for providing me with much of my information about the legal definition of ``spouse''.

The first definition comes from ``Butterworth's'', which states that a spouse is a person who is married. However, if we look into statute law and a number of judgments in the House of Lords, we find that ``spouse'' covers both married and unmarried couples. A judgment in the House of Lords based on the Rent Act 1977, which was amended by schedule 4 of the Housing Act 1988, drew the distinction between a spouse in a male and female relationship, and a single sex relationship. That judgment, Fitzpatrick v. the Sterling Housing Association, said:

``The 1998 amendment extended the meaning to include as a `spouse' a person living with the original tenant''—

obviously this related to property law—

`` `as his or her wife or husband'. This was obviously intended to include persons not legally husband and wife who lived as such without being married. That prima facie means a man and a woman, and the man must show that the woman was living with him as `his' wife; the woman that he was living with her as `her' husband. I do not think that Parliament as recently as 1988 intended that these words should be read as meaning `my same-sex partner' rather than specifically `my husband' or `my wife'.''

If the Minister were minded to keep references to spouse, rather than accepting the amendments, it would give us the opportunity to explore the question of unmarried couples—men and women living together in a stable family relationship. I have the greatest respect for the points that were made by my hon. Friend the Member for Canterbury (Mr. Brazier). He and I are supporters of the institution of marriage. We are both married.

Jonathan R Shaw (Labour, Chatham and Aylesford)

Not to each other, of course.

Robert Walter (Conservative, North Dorset)

No, I intended no disrespect to our respective wives.

We have to accept the world as it is. There are hundreds and thousands of men and women across the country who are living together in stable family relationships. We would do a disservice to children if we ignored that fact.

Jacqui Smith (Labour, Redditch)

The clause provides that both single people and married couples can apply to adopt. Applications by married couples are subject to the age restriction in clause 48; applications by single people by the conditions in clause 49. Clause 47(2) provides that at least one of the applicants must be domiciled in the British Isles, and follows the 1976 Act. Alternatively, subsection (3) states that the applicant or both members of a married couple must

``have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application''.

The clause also provides that an application for adoption cannot be made unless the person to be adopted is under 18 at the date of the application.

The major debate concerning the amendments and the clause has been around the current legal position and the changes proposed by my hon. Friend the Member for Chatham and Aylesford in his amendments on the status of people who can adopt. Clause 47 does not change the legal conditions under which single people may adopt—regardless of sexual orientation—or change the fact that only married couples may adopt jointly. The hon. Member for Romsey argued that a child who had suffered sexual abuse might be best placed with a single woman. That is already possible, both under current legislation and in the Bill. I understand the circumstances in which she was suggesting that that might be appropriate.

As my right hon. Friend the Secretary of State said on Second Reading:

``Although we would not have introduced the legislation unless we believed that these were broadly the right proposals—that must be the case—we want to commit the Bill to a Special Standing Committee precisely so that we can invite views from outside the House.''—[Official Report, 29 October 2001; Vol. 373, c. 654.]

We have had a very useful and wide-ranging debate, both today and during the evidence hearings. Several witnesses and hon. Members have suggested that, where the relationship was stable and it was in the child's interests, an unmarried couple should be allowed to adopt jointly. That is clearly what has prompted my hon. Friend's amendments. The Government believe that, when considering joint adoption, what is important is stability and security for the child. I think that there is recognition across the Committee that that is crucial.

The adoption law review, when considering this issue, concluded that joint adoption should remain limited to married couples on the grounds that adoption by a married couple was more likely to provide the stability and security that the child needed because married couples have made a joint, publicly recognised, legal commitment to each other. In addition, marriage provides for mutual legal and financial obligations, and importantly in the event of divorce, the couple must be prepared to have plans for the future of their children scrutinised by the courts. There is no provision in law to protect the child's interests when unmarried couples separate.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

In circumstances where the child has been adopted by a person who co-habits with a person who is not subject to the order, the adoptive parent dies and shortly after the co-habitee dies, the child, who is outside the intestacy rules, would lose out utterly on any inheritance. That has to be a case for the application of human rights legislation. Will the Minister please take advice on that?

Jacqui Smith (Labour, Redditch)

If the hon. Gentleman wants me to, I will, although the natural parent of the child could have made provision through a will or there could be provisions for the appointment of a guardian. I am not quite sure why the hon. Gentleman suggests that that problem would relate particularly to an unmarried couple.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

In the case to which I have referred, both have not made a will—many people do not bother—so they are both intestate. The adoptive parent dies and shortly after, the parent without the adoption order dies. The child would be without any form of inheritance.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman is clearly concerned about that point, and I shall write to him about it.

The safeguards that I outlined have led the Government to believe that the security and stability that is needed for joint adoption is more likely to be provided by a suitably assessed married couple. However, as hon. Members will know—this point was made well by my hon. Friend the Member for Erewash (Liz Blackman)—a wider debate is under way about providing for the formalisation of the mutual obligations, rights and responsibilities for unmarried partners who do not wish to or cannot get married.

Indeed, the private Member's Bill of my hon. Friend the Member for Reading, East (Jane Griffiths) on that point was debated last Friday, and in response to her parliamentary question, my hon. Friend the Minister of State, Cabinet Office confirmed yesterday that the Government would examine thoroughly the many and complex issues of partnership registration. However, she said that it was premature to commit to any changes until a comprehensive analysis of the issues and their implications had been completed. I can confirm today that the exercise will include giving careful and detailed consideration to joint adoption by unmarried couples in the context of formal partnership registration. The evidence submitted to and heard by the Committee will be considerably helpful for that.

We believe that it is better to consider adoption by unmarried couples in the wider context of partnership registration than in isolation. That point was made by my hon. Friend the Member for Erewash. A registered partnership could provide the secure mutual obligations about which we are all concerned, and it is worth noting that the Netherlands—the leading example of a European country that has introduced the right for unmarried partners to adopt jointly—has done so with a partnership registration scheme. Some countries that have partnership registration schemes do not allow joint adoption by unmarried couples.

Adoption by unmarried couples would raise several complex legal questions about, for example, the legal definition and treatment of an unmarried couple. There is no standard definition of an unmarried couple who are living together in the same way as a married couple. Examples in primary legislation are not consistent. For example, the term ``co-habitee'' is generally used to refer to two people of the opposite sex who reside together as husband and wife. Section 62(1) of the Family Law Act 1996 defines ``cohabitants'' as

``a man and wife who, although not married to each other are living together as husband and wife''.

An unmarried couple in the Social Security Contributions and Benefits Act 1992 is defined as a man and woman who are not married but live together as husband and wife otherwise than in prescribed circumstances. There is no generally accepted legal definition of a same sex unmarried couple. To enable unmarried couples to adopt jointly, we would have to create a definition of an unmarried couple in the Bill. Given the current wider consideration, it would not be right to set a precedent in the Bill without the necessary consultation and thorough consideration. I hope that hon. Members will agree.

Hon. Members raised rightly the situation that pertains when a single person who has adopted a child co-habits and the partner gains, for example, a resident order. Hon. Members have used that as a reason to make the situation more straightforward. In that circumstance, although it may be possible through legislation to establish a legal relationship between each of the unmarried partners and the child, there would still be no legal relationship or mutual obligation between the two partners. That could lead to difficulties, which we must consider in detail. It would be difficult and inappropriate to deal with the other complex issues involved, such as nationality or inheritance—the treatment of adopted children of unmarried couples compared with the treatment of natural children—in isolation from the wider debate that I referred to.

Julian Brazier (Conservative, Canterbury)

The Minister said that there are many complicated issues. Will she clarify the time frame for the review that she refers to? Is it about to start, or is it part of a long-term plan?

Jacqui Smith (Labour, Redditch)

It is not for me to set time frames for my ministerial colleagues. As I pointed out to the hon. Gentleman, Cabinet Office colleagues announced the review yesterday in a response to a parliamentary question. It is for them to determine the time frame for the consultation. The important point is that the exercise will include careful and detailed consideration of adoption by unmarried couples. It would be difficult and inappropriate to pre-empt the conclusions of the review.

For those reasons, and given my assurances about the seriousness with which the Government take the issues raised in evidence last week and by my hon. Friend's today, I hope that my hon. Friend will withdraw his amendment.

Jonathan R Shaw (Labour, Chatham and Aylesford)

This has been a good and constructive debate on one of the few issues about which there are clear divisions among hon. Members. I am grateful that my hon. Friend the Minister indicated that it will be an important component of the review that is to take place. She said that several complex legal issues would arise if we accepted the amendments. I am not in a position today to examine or comment on them as I would wish, but I hope that I will be able to meet her to discuss some of them in more detail between now and the Bill returning to the Floor of the House on Report.

Jacqui Smith indicated assent.

Jonathan R Shaw (Labour, Chatham and Aylesford)

I am reassured by the Minister nodding. I am pleased that the Government are not set against unmarried couples adopting children. Couples choose not to marry for a variety of reasons, including beliefs or circumstances that prevent them from doing so. However, if the adoption is appropriate for the child, it should go ahead, regardless of the reason why the couple have not married.

I am grateful for the contributions of my hon. Friends. I respect the position of the hon. Member for Canterbury, although I disagree with him fundamentally. If his assertion that my hon. Friend the Member for Stockport believes that unmarried couples should not adopt proves to be true, I will purchase a bottle of House of Commons champagne for him to give to a charity of his choice; I am clear about my hon. Friend's position. I beg to ask leave to withdraw the amendment, but I want to return to the matter at a future stage.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Clause 49 - Adoption by one person

Tim Loughton (Conservative, East Worthing and Shoreham)

Before we move on to some of the final clauses, I wanted to clarify whether a single person, having attained the age of 21, should be allowed to—

It being Five o'clock, The Chairman proceeded, pursuant to Sessional Order D [28th June] and the Order of the Committee [27th November], to put forthwith the Question already proposed from the Chair.

Question put and agreed to.

Clause 49 ordered to stand part of the Bill.

Clause 52 ordered to stand part of the Bill.

Debate adjourned.—[Angela Smith.]

Adjourned accordingly at Five o'clock till Tuesday 4 December at half-past Ten o'clock.