Adoption and Children Bill

Public Bill Committee, 4 December 2001.

Special Standing Committee

Adoption and Children Bill

Marion Roe (Conservative, Broxbourne)

At its previous sitting, the Committee finished debating clause 52. Under the programme motion, we come next to clause 94.Clause 94 Proceedings for offences

Clause 94 - Proceedings for offences

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 131, in page 51, line 6, leave out subsection (1).

Welcome back, Mrs. Roe. As you said, we have finished clause 52—at least in parliamentary terminology. The Committee's debate on clauses 49 and 52 was somewhat curtailed—it lasted for one sentence before you brought the knife down, such is the nature of the programming constriction. About one fifth of the Bill has not been debated, yet in parliamentary terminology those clauses have been scrutinised. That is a great pity. On Thursday, we missed debating adoption by one person, revocation orders and other important matters.

We look forward this morning to being wowed by the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Doncaster, Central, (Ms Winterton), who has adorned our proceedings so far with her presence but not her words. It is worth pointing out that, so far, not a single Government amendment has been tabled. Never before have I served on a Committee during which the Government have not had to admit that they were not entirely perfect and that amendments were needed. The Minister of State, Department of Health, the hon. Member for Redditch (Jacqui Smith), ably if not verbally assisted by the Parliamentary Secretary, obviously scored a parliamentary coup—but we have many weeks yet to go.

Amendment No. 131 would simply strike out subsection (1), which states:

''Proceedings for an offence by virtue of section 9 or 56 may not, without the written consent of the Attorney General, be taken by any person other than the registration authority.''

It is slightly difficult, Mrs. Roe, to discuss clause 94 without mentioning clause 9, because those two clauses are contingent on each other. However, the programme motion means that we shall not be able to discuss clause 9 until late next week at the earliest. I remind the Committee that it deals with regulations on the functions of adoption agencies and local authorities and what penalties can be brought in if those regulations are broken. Clause 56, which we may not discuss until the new year, deals with contraventions of clauses 54 and 55, which deal with the thorny subject of the disclosure of protected information.

Clause 94 is about the proceedings that can be taken against various people committing offences that, at least for us, are not yet offences. We shall have to put ourselves in the hypothetical situation of determining that they will be offences if and when we come to those clauses. We are dealing with virtual reality: we shall be determining how proceedings can proceed without knowing whether proceedings against those proceedings can proceed. I think that the Committee has followed my thinking so far, even if the logic of the numbering of the clauses leaves a little to be desired.

Julian Brazier (Conservative, Canterbury)

One of the key points, which I think my hon. Friend may have missed, is that the background to the amendment is opposition to the minimal penalty set out in clause 9, which we will not debate until later.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is a good point, to which I am sure we will return. The explanatory notes for clause 9, to which clause 94 and the amendment are linked, set the maximum penalty for an infringement of the regulations at level 5, which is a fine of £5,000. That is very important. Interested parties have expressed the view and Conservative Members are concerned that such penalties are not sufficient. We are considering penalties that have not been agreed by the Committee and which may or may not be debated later, yet clause 94 sets down exactly how the proceedings that will lead to the imposition of those penalties will happen.

The amendment is designed to find out why the Bill restricts proceedings so that no one except the registration authority can bring them without written consent from the Attorney-General. Many individuals, adoption support groups or family groups may be greatly aggrieved about the activities of an adoption agency or a local authority that may or may not have broken regulations, or passed on information that it should not have passed on, or failed to pass on information that it should have. Why private individuals or groups of interested parties should not be able to initiate action themselves is a mystery.

This is a probing amendment to ask the Parliamentary Secretary, on her debut performance in the Committee, why the terms of the clause are so limiting. Why will all the power be vested in the registration authority established by the Care Standards Act 2000? That legislation has only just been enacted and we are not entirely sure how it will work in many cases. No precedents have been established so far and a lot of controversy surrounds that Act. Perhaps the Parliamentary Secretary can enlighten the Committee with more detail of how proceedings by the registration authority will work in practice, because there is no history attached to that authority that we can examine to find that out.

Why does anybody else wishing to bring an action need the written consent of the Attorney-General? That suggests that the Attorney-General will give leave to private individuals or groups to initiate action in only a small minority of cases. Even if those individuals who are closest to the subjects of the adoption procedures, such as a birth relative or an adoptive parent, have a serious grievance against the way an adoption agency has acted on disclosure or non-disclosure of information, or some other breach of the regulations on support services, they cannot initiate proceedings relating to that grievance without special permission of the Attorney-General.

We need to be assured also that the fledgling registration authority, which is largely untested, is wholly independent. It must act independently of the vested interests of adoption agencies, local authorities and social services departments, but in the early days it might be more inclined to give the benefit of the doubt to an adoption agency than to initiate proceedings.

We are working largely in the dark. We need to be fully assured that if the provisions of clauses 54 and 55 are abused as set out in clause 56 and if the regulations made under clause 9 are broken, action will be taken. For example, what if an adoption agency fails to make proper checks about the home of a pre-adopted child that had been taken into care, which resulted in harm coming to that child? The birth parent, who might have given up that child with consent, would be troubled if harm came to that child because the local authority had not carried out proper checks.

In the majority of cases, birth parents will be told that the registration authority believes that it does not have a case to answer, and they would be stymied; but in a small minority of cases, the Attorney-General might be minded to allow them to bring proceedings. When does the Parliamentary Secretary expect the Attorney-General to be minded to allow others to initiate such proceedings? What if an adoption agency had left it far too long before removing a child from a threatening situation, or the child had been the subject of a long-running placement order and still was not properly settled? Worse still, what if a child had been the subject of multiple placements or multiple fosterings? I mentioned last week evidence from an expert witnesses about a child who had been moved an incredible 256 times. I hope that the registration authority would pick up such cases early, but it may let go on less extreme cases.

Julian Brazier (Conservative, Canterbury)

My hon. Friend has mentioned before the dreadful case in his constituency. Were that case to have been fought by an adoption agency—one must not prejudice sub judice proceedings—it is rather insulting to think that a level 5 fine could be imposed. We shall come to that later, but the idea that the case could not be prosecuted without the permission of the Attorney-General should the National Care Standards Commission choose not to prosecute, which would be the effect of the amendment not being accepted, is surely grossly unfair to the memory of that child.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to my hon. Friend for reminding me of my constituency interest. On Second Reading, I alluded to the case of John Smith, the four-year-old who died last year at the hands of two prospective adoptive parents. They have been convicted and a derisory sentence of eight years each has been handed down. A host of problems ensued because of the joint enterprise restrictions, which I took up with the Minister, but that is a different subject. Many would say that those two got off lightly, but they have had the cheek to appeal, so I shall not go into it too closely.

In that case, no one outside the two prospective adopted parents has been prosecuted or penalised. A report has been published that easily drew to light all sorts of information about which the Brighton and Hove social services department was entirely oblivious. That information included the fact that the prospective adoptive father had been married twice before, and interviews with his two former wives raised concerns about threats of violence towards children and an episode with a two-year-old, as well as the fact that he had changed his name and that his wife had five criminal convictions. None of that had been brought to light by the local authority's social services department, which was responsible for placing the child for adoption.

In such a case, there are strong grounds for an aggrieved party, who could certainly be identified as the child's birth parent, to initiate proceedings. In my example, the child's birth parent sat through almost all the sittings of the trial and heard about the ghastly series of injuries that had been inflicted on the child. Fifty-four marks were identified on the poor child's body after he succumbed to his injuries, including adult bite marks and assorted other unspeakable wounds. The mother spoke out after the trial. Unsurprisingly, she was greatly distressed by what she had heard and what had gone on, however I do not believe that the woman has initiated any proceedings.

Only recently have we seen the independent report produced after the trial, which commented on the role of the Brighton and Hove social services department, the Worthing priority care trust in West Sussex, which is responsible for health visitors, general practitioners and others who were involved. I do not cast blame or make assertions as to where the system went wrong. The report rightly made several recommendations. The Brighton and Hove social services department and the Worthing priority care trust have made changes to their procedures, so we can hope that the problem will not happen again, but no one from the social services department has lost their job.

If the birth mother of the four-year-old wanted to initiate proceedings, she would have to rely on the registration authority to say that someone had breached the regulations, presumably under clause 9 in this case because there would have been no disclosure of information. If the authority declined to say that, she would have to ask the Attorney-General for an exceptional order for proceedings to be initiated. I do not think that she will do so. Even if she were minded to do so under the law as it stands, she would certainly not do so under the Bill, because she would have to go through an awful lot of hoops to get satisfaction.

That is a classic example of a close birth relative who feels that her son, whom she gave up for fostering and adoption, has not been properly looked after by the authorities to which he was entrusted. How does the Parliamentary Secretary think that clause 94(1) would improve the system of justice for individuals in the example that I have given, for whom the system patently failed? In that example, a child paid the ultimate price.

I apologise for taking so long to set out the principle behind the amendment, but it is important. My topical example goes to the heart of why we have grave doubts about whether the restrictions in subsection (1) would be for the best. I ask the Parliamentary Secretary to give some practical details of how she thinks that the system would work better without the changes that we suggest.

Julian Brazier (Conservative, Canterbury)

I apologise to the Committee for my voice. Everyone I rang this week thought that I was an obscene caller, but I merely have laryngitis.

Tim Loughton (Conservative, East Worthing and Shoreham)

That was last week.

Julian Brazier (Conservative, Canterbury)

I thank my hon. Friend for that kind remark, which will help to sustain me in my hour of need.

The clause is extremely important. It relates to offences under clauses 9 and 56. In moving the amendment, my hon. Friend gave a series of examples of relevant offences under clause 9. I want to look at a constituency case where clause 56 would have been relevant under slightly different circumstances.

Emma—for obvious reasons I cannot give her surname—was responsible for the largest constituency file on an individual case that I have ever assembled in my 15 years as a Member of Parliament. I shall not try the Chairman's patience by describing the case in detail, but instead I shall provide a brief outline for the Committee. Emma was one of two unconnected children adopted by two kind constituents of mine who know that both children brought a great deal of difficult baggage with them. Her adopted brother is today a graduate with a successful job. Emma, sadly, is somewhere on the streets of London, a drug addict and perhaps a prostitute as well. The problem in her case arose from the fact that somehow—I remind the Committee that clause 56 deals with the disclosure of information—the birth mother discovered where Emma was living, not when she was a young child but when she was almost 15 years old. She arrived at the gates of Emma's school and from then on, a happy child was set on a rapid downhill trend: within a year or so Emma had disappeared to a squat with a much older boyfriend. The rot had set in, and it almost destroyed my kind and caring constituents.

The relevance of that case to the amendment is clear. My constituents were unable to discover how the information had got out, but let us suppose that it transpired that a breach of information under clause 56 had taken place and that the adoption agency had released the information to the birth mother with catastrophic consequences—the ruination of a young life. We shall return later to the fact that the penalties are so small; absurdly, that subject relates to an earlier clause. Without our amendment to the Bill, my constituents, whose surnames I cannot give, would be faced with either trying to persuade the National Care Standards Commission to prosecute, or having to make an application to the Attorney-General as described by my hon. Friend the Member for East Worthing and Shoreham (Mr. Loughton). Why should they have to do that?

I sincerely hope that the National Care Standards Commission will work well. I hope that in such a case it would be willing to bring a prosecution, but it is possible that it would not. There is a danger with all regulatory agencies that they will be captured by the system. I am not going to mention names, but familiar faces pop up—I am thinking of the work of the NCSC on residential homes for the elderly—in certain regional offices and elsewhere. One can think of reasons, such as old ties from the past, why the NCSC may not always be vigorous in its pursuit. One looks at the various independent inquiries that have occurred over the years: sometimes they took place because of the lack of a proper outside regulatory agency, and sometimes because the existing systems did not function properly.

As my hon. Friend said, this is a probing amendment. To reject it prima facie would mean that people like my constituents—decent people who provided a home for two unhappy children and gave them a very happy upbringing—would either be forced into the hands of a Government quango, or be made to go all the way to the Attorney-General for permission to bring proceedings. If they could not afford a solicitor, why should they be denied the right to go to the Kent Law Clinic, for example, or another organisation that provides free help? I do not know whether circumstances would have allowed the couple in question to bring a private prosecution. Why should not they be able to prosecute a horrible offence under clause 56? Incidentally, I have not named the local authority that acted as the adoption agency in this case, because I have no grounds for believing that the leak came from the local authority. I am creating a hypothetical case based on a real one.

My hon. Friend, with customary excellence, dwelt at length on possible clause 9 offences. Everyone who has taken an interest in adoption issues in the past two years has done so because of the failure of so many adoption agencies. One can see from the Government's league tables, which I and other people welcome, that nearly all statutory agencies have had unsatisfactory procedures, apart from an honourable few that have shown the way and done much better. On Second Reading I quoted two bad cases that might have been eligible for clause 9 offences. I quote one of them again.

Jane adopted two siblings in the south of England. The contact arrangements required them to meet monthly with their younger brother who is in long-term foster care. Because they like him and they all get on well, he gets upset when they leave, so the parents have applied to adopt him too. The social worker, who represents the adoption agency in the context of the Bill, said that he needed to be assessed, and her first step was to remove him from the stable foster home in which he had lived for several years and put him in a new placement. Within weeks, he showed signs of emotional disturbance.

That is a genuine case of bad practice. I do not suggest that good practice does not exist because from the dark days of several years ago when only a few authorities got it right, an increasing number of agencies are doing better. However, when things go wrong and a clause 9 offence is committed, why should not an organisation other than the NCSC be able to bring legal action?

Tim Loughton (Conservative, East Worthing and Shoreham)

In the light of the cases that my hon. Friend has cited and of some of the more extreme cases that I have mentioned, does he think that a level 5 fine of £5,000 provides any deterrent at all, given that the money would not come out of an individual's pocket but would be covered by insurance? The professional integrity of the person who committed the offence might remain completely intact.

Julian Brazier (Conservative, Canterbury)

I see that Mrs. Roe is about to call us to order. My hon. Friend knows that we shall have to return to the matter when we debate the relevant clause, which precedes clause 94 in the Bill but is being debated after it. However, I could not agree more strongly with him and I look forward to debating the matter.

I turn to the role of the Attorney-General. Hon. Members will remember that during the debate on the Home Office's Anti-Terrorism, Crime and Security Bill, the point was made repeatedly that although reserving powers to the Attorney-General for prosecution is not unprecedented, it is certainly unusual and something that Parliament should not do lightly. I am puzzled. Why have the Government chosen to give the Attorney-General a special role under the Adoption and Children Bill? That seems curious, and I look forward to hearing the Parliamentary Secretary's comments.

Jonathan Djanogly (Conservative, Huntingdon)

I concur with my hon. Friends that subsection (1) seems out of place and against the spirit in which we have generally proceeded, which considers the rights of people other than social workers and other professionals. The subsection seems to tend away from that. I concur also with my hon. Friends' comments on the subject of the Attorney-General. It seems extremely unusual to have to go to that level to get consent, should consent be thought necessary. I should have thought an approach to the court would be more than adequate in the circumstances. A demanding requirement is being established for non-professionals who want to claim their rights. The rights of non-professionals are not adequately catered for in the clause.

The effect of the clause on younger children and teenagers has been discussed. I shall focus on older children and, in relation to disclosure, the over-18s. Adoption has been around since the early 1920s. There is a lot of information in existence, much of it highly confidential. The further back in time we take the matter, the more likely the information is to be confidential. It was not until the mid-1970s that the regime changed and information was dramatically opened up.

Julian Brazier (Conservative, Canterbury)

Without anticipating amendments that have yet to be moved, I remind my hon. Friend of the three-year time limit, which seems absurd to many Opposition Members, on pursuing prosecutions under the clause. That further reinforces my hon. Friend's point.

Jonathan Djanogly (Conservative, Huntingdon)

Indeed. We shall discuss that in due course.

Even if an adoption agency had held records for 50 or 60 years, there might be an opportunity to start proceedings if information was wrongly disclosed. In considering the clause we are exploring the impact of such disclosure. In our discussions, we often leave aside the question of adoptive parents' rights. They are relevant in connection with protection from disclosure of confidential information. People involved in the earlier adoptions might have lived for 50, 60 or 70 years with a certain degree of knowledge or disclosure, but one day a social worker in an adoption agency might take it upon themselves to disclose information without having any right to do so. I concur with my hon. Friends in the view that it is difficult to discuss the question in detail because we have not yet discussed clauses 9 or 56.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I am puzzled about why, years after a case has been closed, someone might be likely to obtain the records and disclose information to a birth parent. With all my years of social work practice, I cannot conceive of that happening.

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Lady makes an important point, but in a year as a chairman of a social services department I received no fewer than 20 requests for such information. Many birth parents whose children were adopted early on are now approaching death. Their children were adopted under a regime under which they accepted there would be no further contact, and they have lived with that for a long time, sometimes 40, 50 or 60 years. As I said, many are now approaching death, and some want to make wills, so requests for information are becoming much more frequent than they once were.

In many ways, we are dealing with a specific period. As time moves on and we move further into the post-1974 adoptions, the problem will become smaller. However, it is important because the disclosure of information about people could negatively affect them. They have a right to redress.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

Will the hon. Gentleman give way?

Jonathan Djanogly (Conservative, Huntingdon)

Let me finish. In such circumstances, I do not think it adequate or appropriate that an 80-year-old whose records have been kept secret for 60 years suddenly has to rely on the NCSC to decide whether it is fair for the records to be disclosed. Such people have rights that the clause does not adequately consider.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I appreciate the explanation, but I remain puzzled. What is being described is a system to control cases in which a person comes forward to seek information, and to deal with them in law and regulation. We are dealing with cases in which people do not follow rules and regulations, and social workers take it on themselves to provide information in a way in which they should not. The two sets of cases are not at all parallel. In my experience, such cases are highly unlikely to arise in the circumstances that the hon. Gentleman describes.

Jonathan Djanogly (Conservative, Huntingdon)

I can assure the hon. Lady that such circumstances are not unlikely and arise quite frequently.

Julian Brazier (Conservative, Canterbury)

In the rather harrowing constituency case that I mentioned, I did not refer to the local authority involved because we do not have concrete proof. However, it is difficult to imagine any means other than a leak from the local authority by which the mother could have discovered 11 or 12 years on where her four-year-old, now 15, was living. Imagine how much the child's appearance would have changed in that time. She did not even live locally. In that case, it appears prima facie that there was such a leak.

Jonathan Djanogly (Conservative, Huntingdon)

I thank my hon. Friend for that helpful intervention. We deal later with clauses 9 and 56. It would have been helpful to go through the Bill clause by clause, because to a great extent in this debate we are speaking hypothetically, as my hon. Friend the Member for East Worthing and Shoreham said. We will discuss what rights people have, and perhaps have a difference of opinion as to what they should be, but whatever they are, people should be able to protect the rights on which we decide. The clause creates an unlevel playing field between the system and other parties to the adoption process, which will be significantly to the detriment of the rights of people who should have rights.

I have mentioned the rights of children at other stages of the Bill and will continue to do so because I do not believe that the Bill protects them adequately. We talk about making children's rights pre-eminent but consideration of the Bill clause by clause reveals no hard words to show that children have rights in relation to consent or representation or, in the case of clause 94, in bringing the system to task.

Tim Loughton (Conservative, East Worthing and Shoreham)

Looking back on clauses 54 and 55, to which clause 56 ''Offence'' refers, I understand why the hon. Member for Sheffield, Heeley (Ms Munn) is confused. The whole Committee is confused, because much of the information that we are discussing hypothetically has not yet been prescribed in regulations. Again, we are talking about undefined information.

We are referring to both disclosure and non-disclosure of information. The hon. Lady questions whether such cases would arise, but I can think of many times when they have done. If information were released to a birth parent about the whereabouts of an abused child who was later adopted, the abused child or the adoptive parents would have a serious grievance against the adoption agency that released the information. The registration authority might not see fit to take action against that agency, and the only recourse would be a minority decision by the Attorney-General to intervene, which is a serious occurrence.

Jonathan Djanogly (Conservative, Huntingdon)

I thank my hon. Friend for elaborating on my point. Adoption agencies have been known to get things wrong—there is no dispute about that—and one can imagine circumstances in which an agency puts a child with abusive parents in a vulnerable position. It is easy to assume that the state and institutions such as adoption agencies are there to support the child. That is what we want, and is the purpose of the Bill, but it has sometimes not been the case. The child might be doubly exposed, by having abusive parents and by being denied services that the state should provide to them. Clause 94 would not adequately protect the rights of children in such circumstances, and I support the amendment.

Rosie Winterton (Labour, Doncaster Central)

Mrs. Roe, may I say how delighted I am that you are the Chairman of my first Committee contribution as a Minister? I look forward to our deliberations.

First, I shall describe some of the background to the clause. Subsection (1) sets out that proceedings for offences under clauses 9 and 56 are to be brought by the registration authority unless they are brought with the written consent of the Attorney-General. Clause 9(1) enables regulations to be made to regulate local authorities, voluntary adoption agencies and adoption support agencies in relation to their adoption functions. Under clause 9(3), such regulations may provide that contravention or failure to comply with the regulations would render a person guilty of a criminal offence and liable on summary conviction. Clause 56 enables regulations to be made providing that when a registered adoption society discloses information in contravention of clause 54 or 55(4), it is guilty of a criminal offence

''and liable on summary conviction to a fine not exceeding level 5''.

Clause 54 sets out the restrictions on disclosure of protected information and clause 76 information. Protected information means identifying information about the adopted person and/or any other person. Clause 55 provides that information about a child may be disclosed to prospective adopters only if prescribed through regulations for that purpose. The effect of the amendment would be that any person could bring proceedings for the offences. Either the Crown Prosecution Service or an individual could bring a private prosecution without reference to the Attorney-General or anyone else.

Slight confusion has arisen and I would like to reassure the Committee. The provision relates to clauses that implement the regulation of adoption agencies. We believe that it is important that offences under the clause are prosecuted by the NCSC in England and the National Assembly for Wales in Wales so that they can monitor the services provided by the agencies in England and Wales. The other important point is that those bodies will be able to provide specialist expertise when conducting prosecutions. We strongly believe that the commission and the Assembly will be best placed to carry out that task.

Julian Brazier (Conservative, Canterbury)

I do not follow the Parliamentary Secretary. The first of her two points seemed to be a non sequitur. Of course the two statutory bodies should have the power to prosecute; they are in most cases the best informed and best placed to do so. However, it would not in any way undermine that power or that expertise if others, particularly interested parties, also had the right to bring a prosecution.

Rosie Winterton (Labour, Doncaster Central)

I shall come those points later.

Jonathan Djanogly (Conservative, Huntingdon)

I am sorry for the double disturbance, but my point is relevant. The Parliamentary Secretary just used the words ''prosecution'' and ''monitoring'' in the same sentence, but the two do not necessarily go together. The state has the right to prosecute, but why should that be put together with its duty to monitor? If a private person were to initiate a prosecution, the state would still be able to monitor what was happening in relation to prosecutions.

Rosie Winterton (Labour, Doncaster Central)

The monitoring bodies' role will be enhanced by their being allowed to bring prosecutions arising from a breach of the regulations. The prosecutions will arise from the regulation of local authorities, voluntary adoption agencies and adoption support agencies in respect of their adoption functions, and of registered adoption societies in respect of the disclosure of information. Because the NCSC and the National Assembly for Wales will monitor agencies' adherence to the regulations and it will be a criminal offence to breach those regulations, prosecutions will be better carried out by those bodies than by the CPS or the police. That approach is entirely consistent with section 29 of the Care Standards Act 2000, which applies when the NCSC prosecutes offences under part II of that Act.

Tim Loughton (Conservative, East Worthing and Shoreham)

It would be useful if the Parliamentary Secretary gave some parallel examples of other criminal offences the prosecution of which is restricted to a regulatory body. For example, I served on the Committee that considered the Financial Services and Markets Act 2000 and I know that the Financial Services Authority has a regulatory role and that it can initiate various prosecutions and prosecute its members internally. However, that role is not exclusive to the FSA; if fraud arises from the monitoring role of the FSA, the CPS can bring fraud charges against the offending firm or financial services practitioner.

Rosie Winterton (Labour, Doncaster Central)

I shall come to that point later in my response. First, I shall finish speaking about consistency between the Bill's provisions section 29 of the Care Standards Act 2000.

The offences include breaches of regulations imposing requirements on how establishments and agencies registered under the Act should be run, failing to comply with conditions of registration, and making false statements in applications for registration. Other offences under the Bill are more appropriately prosecuted by the police and the CPS, for example, one offence listed in clause 114 is that of publication of advertisements by someone other than an adoption agency or a person acting on an agencies behalf offering a child for adoption. We are talking about breaches of regulations being a criminal offence, and prosecutions would be carried out by the NCSC or the National Assembly for Wales. If someone thought that the commission had not taken effective action against an adoption agency for breach of regulation, it would be open to that individual to ask the Attorney-General whether he could take action because the commission had refused to do so.

Julian Brazier (Conservative, Canterbury)

I am having a little difficulty following the Parliamentary Secretary, not least because my pager went off at the crucial moment. Would she put it in black and white? The example that I gave was based on a real case. If Emma's parents had discovered what appeared prima facie to be a clause 56 offence—that a leak at the adoption agency had been the cause of that terrible birth mother turning up at the daughter's school and ruining the girl's life—would it be covered by the provision that we are debating now?

Rosie Winterton (Labour, Doncaster Central)

I will come that later in my explanation. Such cases would involve breaches of regulation. If that case had arisen from a breach of regulation, the first port of call would be the NCSC, because the commission would have the specialist expertise necessary to prosecute. If the commission said that there was not enough evidence or that a case could not be made but the person still felt strongly that he wanted to go ahead, he could apply to the Attorney-General for that decision to be waived. The procedure is the usual one for prosecutions arising out of statutory offences for breach of regulation rather than the prosecutions for criminal offences; the latter are normally prosecuted by the CPS. In addition, individuals can ask the Attorney-General to allow them to commence a private prosecution if they believe that the regulations have been breached and for some reason the commission or Assembly declines to proceed.

If the constituents of the hon. Member for Canterbury (Mr. Brazier) had approached the Attorney-General and the Attorney-General had said, ''No, I do not accept that you should be able to bring a private prosecution because I am convinced that the evidence is not there'', they could apply for judicial review of the Attorney-General's decision. The test would be whether the Attorney-General had acted lawfully, reasonably and fairly in refusing consent for the prosecution.

Julian Brazier (Conservative, Canterbury)

So the answer to my earlier question is yes, it would have been a clause 56 offence. Surely the Parliamentary Secretary knows that to apply for judicial review is both extremely expensive and almost certain to end in failure?

Rosie Winterton (Labour, Doncaster Central)

If the hon. Gentleman bears with me, I am trying to elaborate on the process that his constituents would follow if they were trying to get the NCSC to bring a prosecution for breach of regulations. The issue is the breaching of the regulations under which adoption agencies operate. The judicial review would be heard in the High Court with appeals lying to the Court of Appeal and the House of Lords.

Jonathan Djanogly (Conservative, Huntingdon)

I should like to reinforce the point made by my hon. Friend the Member for Canterbury. Few individuals in this country could afford a judicial review. Surely the Minister appreciates that to take out a private prosecution is not some newfangled right; it is an ancient right in this county. Why cannot it be left as an option to those who wish for it? It is not as though we are asking for anything new, but this provision effectively removes that right.

Rosie Winterton (Labour, Doncaster Central)

There has been some confusion about what is happening. The hon. Member for Canterbury is unfortunately no longer in his seat, but perhaps his hon. Friends will inform him of this point on his return. Outwith everything in the previous scenario—that is, where there has been a breach of regulations—it is still within a person's right to take a civil claim for negligence against an agency.

Hon. Members debated to what extent the fines were adequate. If, for example, an action constituting a criminal offence more serious than a breach of regulations was found in court to be so, it would still be open to the police and the CPS to make a prosecution. If, on the civil side, the breach of regulations meant that a person had suffered increased harm, it would still be up to them to take out a claim for negligence. I am sorry that I was rather long in making that point, but I was trying to explain that these clauses relate to regulations and give the NSCS some teeth and some ability to ensure that it can pursue those prosecutions. The evidence shows that in private prosecutions—there have been relatively few—such provisions enable breaches of regulations to be more extensively investigated and result in bodies with specialist expertise in pursuing prosecutions. However, in no way do they restrict the ability of individuals to proceed with further action should they wish to do so.

Jonathan Djanogly (Conservative, Huntingdon)

We often return to talking about the clause protecting individuals from breaches of regulations rather than from breaches of provisions that are actually in the Bill. I remind the Minister that the Opposition do not support the amount of discretion given to the Secretary of State to make regulations under the Bill. We have consistently maintained that the Bill leaves too much to be dealt with by means of regulations.

Rosie Winterton (Labour, Doncaster Central)

To prescribe too much in the Bill would not leave it sufficiently open for proper consultation. There are many instances where it might be beneficial to consider the use of regulations to set out wider areas of responsibility.

I hope that I have been able to reassure Conservative Members that the clause would not, in the tragic cases that they mentioned, restrict prosecution by the police and the CPS, or by individuals. I hope that, with those assurances, the Opposition will feel able to withdraw the amendments.

Tim Loughton (Conservative, East Worthing and Shoreham)

The amendment was intended to be a probing amendment. Although it raises an important point, it was not meant to take up a lot of time. It seems to have uncovered, as the debate has progressed, ever more potential heffalump traps. In reiterating my welcome to the Parliamentary Secretary on her debut in the Committee, I must say that I have been unexpectedly disappointed by her performance. She began by repeating the background to the clauses, which my hon. Friend the Member for Canterbury and I had already set out, but she did not really answer my questions.

The debate highlights the problem of the order of consideration of clauses. We have been discussing provisions relating to offences that have not yet been discussed, and which, given the tight time restrictions on the Committee, might never be discussed. We are discussing penalties for actions that may not turn out to incur penalties, because of clauses 9 and 56, which will be discussed in future sittings.

The debate also highlights the problems of talking about offences caused by a breach of regulations when we do not have the regulations before us to assess whether a given action would be in breach of them, and how serious a breach it might constitute, let alone whether the penalties proposed under clauses 9 and 56 are sufficient to deal with those breaches of regulations. Our debate has been hypothetical, bordering on virtual reality.

I fear that the Parliamentary Secretary has not addressed the concerns that I raised. I should like her to tell me how the registration authority—the National Care Standards Commission in England and the National Assembly in Wales—will operate. Who in those bodies will determine whether regulations have been breached, the seriousness of the breach and whether action will proceed on the basis of a complaint or, to put it lightly, a mishap?

The Parliamentary Secretary referred to all manner of experts who will man the NCSC and oversee whether regulations have been breached. We do not know who those experts will be or whether there will be enough of them. We have heard many stories about the enormous problems of finding professional staff in social services departments. Will the experts be former social services workers? If they are, it will denude even further the departments, some of which have vacancies of up to 50 per cent. for key child workers.

I hope that we will discuss the Children and Family Court Advisory and Support Service later. Will we have the same problems as it had when an enormous number of its professional staff decided to walk from their jobs due to enormous incompetence by a few of the Parliamentary Secretary's colleagues? I am not assured that the NCSC will have the expertise to oversee breaches of regulations, even if I knew what they would be. I should like the Parliamentary Secretary to discuss the mechanics.

How can individuals petition the NCSC or the National Assembly for Wales if they are the instigators of a complaint? Such complaints will not necessarily be brought by the registration authority, so if birth parents, siblings, other close relatives or the adoptive parents feel that there has been a breach of the as-yet-undefined regulations but that nothing is happening about it, by what mechanism can they bring that to the attention of the registration authority and ensure that they are listened to rather than dismissed as some emotional crank on the telephone? If they bring a formal complaint, by what mechanism can they be assured that the appropriate official has the requisite forms and procedures so that the complaint may be recorded and a proper decision taken on whether it will be proceeded with within the mechanics of the authority? I want the Parliamentary Secretary specifically to enlighten the Committee on how individuals interact with the registration authority.

I also asked the Parliamentary Secretary in what circumstances she envisaged that the Attorney-General would give his consent to individuals who had taken up the unusual practice of petitioning him on failing to receive satisfaction from the registration authority. That matter was mentioned by my hon. Friend the Member for Canterbury, who is temporarily absent. How easy is that? In my limited experience, it is not easy. In how many cases, not numerically but as a general idea, does the Parliamentary Secretary envisage that the Attorney-General will entertain such applications from individuals, who might be emotional and have highly personal reasons for wanting to take the measures further?

The Parliamentary Secretary also did not tackle the question whether penalties under clause 9 would be any deterrent. If a £5,000 fine were enacted—it would presumably be paid by an authority, an adoption agency as a body, or more likely a professional negligence claim against an insurance indemnity policy—in clear cases of negligence by individuals, I am not aware of any procedures whereby those individuals would suffer any penalties and be seen to have suffered penalties for being closely aligned to the misdeed.

We are dealing also with the thorny subject of protected information. We were in danger of having a debate on clauses 54 to 63, but many hon. Members, on both sides, and just about every witness that appeared before us would be amazed if the Government were to go ahead with the proposals in those clauses. It would be a retrograde step to restrict access to information and birth records by adopted children, yet we are now discussing what penalties would be brought against those agencies that infringed the disclosure of information provisions. We are not due to debate what is probably the most important part of the Bill for another couple of weeks, by which time I hope that the Government will have had a change of heart. I hope that they will have succumbed to the overwhelming torrent of evidence against the retrograde steps that they still propose in later clauses.

My hon. Friend the Member for Huntingdon (Mr. Djanogly) made some exceedingly pertinent points, and he drew heavily on his experience of running a large and active social services committee during his time as a local councillor. He rightly said that the clause appears to be against the spirit in which the Committee has been moving with a great deal of unanimity. Other clauses that we shall debate later give access to appeals and reviews for individuals who feel hard done by as a result of decisions by adoption agencies. We have identified a much needed mechanism, whereby individuals and groups can appeal for review of a decision that they believe to be unfair, but clause 94 goes the other way. If anything, it restricts rights of redress and the practical modes of redress for individuals who feel that an injustice has taken place. As has been said, the clause is against the nature and spirit of the Bill.

A large part of the problem is the interface between the breach of regulation and other criminal matters. The Parliamentary Secretary has not started to address that problem. We do not know who will institute the regulations, nor how properly they will be monitored. When will a breach of regulation be serious enough to become a criminal matter—one to be prosecuted by the CPS through the ordinary rigours of the law? I can foresee a large grey area where certain people will be breaching the regulations but may also breach the criminal law. Where is the trigger point—the point at which the registration authority can say that it will not do anything about a breach of regulation but that something else is a criminal matter and that the full rigours of the law should be applied by the CPS in the magistrates court, or in higher courts where higher fines or penalties are available?

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend will appreciate that many essential components of the Bill—the nitty-gritty, the nuts and bolts and the administration procedures—are being put in by way of regulation, and that dealing appropriately with regulations is even more important than we would have wished.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend reinforces one of the essential weaknesses of so much of the Government's legislation: the devil is in the detail and we are a long way from seeing the detail. The work of the Committee will be long done—unsatisfactorily and incompletely—by the time we see the regulations. Only then will we know whether today's debate flagged up real fears or more hypothetical fears based on real-life cases.

My hon. Friend the Member for Canterbury made an important point when the Parliamentary Secretary started talking about the monitoring role. What is the difference between the monitoring and the prosecutory role? When the Financial Services Authority was initially set up—I do not want to stray from our subject, but it provides an interesting parallel—it was judge, jury, prosecutor, executor and beneficiary from fines. It was certainly set up with a powerful role. It was largely the lobby of the City and more than 1,000 amendments tabled by the Opposition—the Government had to accept hundreds of them in another place—that better contained, divided and defined the powers of the FSA. Similarly, we need greater definition of the new powers being conferred on this body.

Julian Brazier (Conservative, Canterbury)

On that exact point, the Parliamentary Secretary clearly said—she generously gave way three times and I am sorry to challenge her a fourth time—that it was usual for the CPS to prosecute in most cases, but that where regulations were breached it was normal practice for the regulatory agency to prosecute, with the let-out of the Attorney-General. She provided the solitary example of the Care Standards Act 2000, which has only just passed through Parliament and is presently being implemented. Can the Parliamentary Secretary provide any further legislative examples where that form of policing applies?

Tim Loughton (Conservative, East Worthing and Shoreham)

That is precisely the point. The registration authority in this case is the National Care Standards Commission in England and the National Assembly in Wales. The NCSC started its work on 1 April this year when the Act came into force, so there are no precedents. I am not aware of any other cases that involve the care of children, so perhaps the Parliamentary Secretary can enlighten us. I am far from clear about where the monitoring stops and where the prosecutory action starts.

The amendment would add to the variety of routes open to aggrieved individuals. Allowing individuals to bring a case to the notification of the CPS and other legal routes would not detract from what is laid down in the clause or undermine the expertise of the professional groups at work in the National Care Standards Commission. I appreciate the Parliamentary Secretary's point that the best monitors of whether the regulations are breached will be the professionals in the regulatory organisation. No one disputes that. We are disputing what should happen where that job becomes prosecutory. We are debating the interface between the breaches and monitoring of regulations and taking action when offences have been committed. That is the grey area revealed by our extensive but worthwhile deliberations this morning.

What we are proposing would not undermine the work of the regulatory body. If anything, it would give it more teeth. More avenues would be available to aggrieved persons and it would be even more implicit that the regulator should ensure that the bodies that it regulates—the adoption agencies and local authorities—are doing their jobs properly. Otherwise, prosecution could be taken elsewhere, which would leave the regulators looking a bit silly because they did not pick it up in the first place. The Parliamentary Secretary should reflect on the John Smith case, where no one was prosecuted other than the perpetrators of the violence against the child that led to his tragic death. Where does criminal incompetence or criminal or professional negligence in that case feature in proposals for social workers, health professionals and others? My hon. Friend the Member for Canterbury also mentioned the case in his constituency of Emma. Will the Parliamentary Secretary respond to those two cases?

When the Parliamentary Secretary said that the first port of call was the National Care Standards Commission or the National Assembly in Wales and that if aggrieved individuals did not get satisfaction there, they could go to the Attorney-General, it amounted to a tightening of choice. Those are two extremes with no intermediate stages. People do not go lightly to the Attorney-General, who does not entertain individual cases in matters such as this. If the Parliamentary Secretary tells us otherwise, I anticipate much more work for the Law Officers' Department, which may not be well equipped to cope with it. It might then have to draw on the expertise of professionals working in the NCSC or the National Assembly—a circular argument.

When challenged over other options, the Parliamentary Secretary mentioned judicial reviews. We all know that they are hard to pronounce, hard to effect and hard to bring to a satisfactory conclusion, particularly for individuals embroiled in emotional family matters. Such people are often not well versed in the law or how to press their grievances against the establishment. Doing so would be exceedingly costly and cumbersome. The Parliamentary Secretary knows from experience in the Lord Chancellor's Department how rarely judicial reviews come off.

The Parliamentary Secretary then mentioned making a civil claim. Once again, that option is available, but it is expensive and the system often works against individuals. I simply do not understand why she wants to restrict the choice of aggrieved individuals in seeking proper recourse to the law when an adoption agency or local authority has not done its job properly. Those authorities may have gone beyond the breaching of regulations into semi-criminal matters, which might not, however, be taken up by the CPS.

I seriously ask the Parliamentary Secretary to deal with those re-stated concerns. Otherwise, what started out as only a probing amendment will be put to the vote.

Rosie Winterton (Labour, Doncaster Central)

I am sorry that I have been such a disappointment—[Hon. Members: ''No.''] Let me see if I can put that right.

I am shocked that the hon. Member for East Worthing and Shoreham believes that it is wrong for the NCSC to have powers to prosecute. We are dealing with vulnerable children and our intention is to enable the NCSC to monitor and regulate adoption agencies. Where it finds breaches in the regulations, it should be able to prosecute.

The NCSC will inspect adoption agencies every three years, which is more often than at present. Voluntary agencies and local authorities will also be regularly inspected. The NCSC will be able to pick up on poor practice and breaches of regulations. It is important that it has the power to do that and to conduct prosecutions, because it has the right expertise. If individuals claim that they are victims of a breach of regulations, the NCSC will be able to advise them on whether a prosecution is likely to succeed. At the moment, those who fail in that process experience great problems. Our proposals will ensure that a body with expertise on such breaches of regulations will participate, because it is invaluable in ascertaining whether a prosecution is viable.

I emphasise that the process might help an individual who wanted to pursue a claim for negligence. If it had already been proven that an authority had breached regulations and an individual said that the breach had caused harm, the process would be helpful to that individual's claim. If the NCSC discovers a more serious offence than a breach of regulations, it would not prevent the Crown Prosecution Service from pursuing it. I want to assure hon. Members that the legislation does not close off other avenues.

Julian Brazier (Conservative, Canterbury)

We really must not spend any more time on this small probing amendment, but what the Parliamentary Secretary said is irrelevant. The amendment would not fetter the NCSC from pursuing prosecutions, and all her points would still apply if our amendment were passed. All it states is that other people apart from the commission should be able to pursue a prosecution without contacting the Attorney-General. She might suggest restricting the amendment to those who are genuinely interested parties. However, she has not explained to our satisfaction why the process should be restricted to the NCSC except with the permission of the Attorney-General.

Rosie Winterton (Labour, Doncaster Central)

We want to ensure that the National Care Standards Commission has full knowledge of how regulations can be breached. That is a very important part of monitoring the process. If that knowledge were taken away, individuals might be prevented from obtaining the prosecution that they want. If the prosecution took place without specialist advice and failed, adoption agencies might get off the hook. This is the normal way to deal with such statutory offences.

Perhaps I might clarify some of the issues that the hon. Member for East Worthing and Shoreham raised about the Attorney-General. Individuals can write to the Attorney-General, and he will give consent if prosecution is backed up by admissible evidence and is otherwise appropriate. It is actually easier to go to the Attorney-General's Office for a review of a decision by the NCSC than to hold a judicial review of a decision of the Crown Prosecution Service not to pursue a complaint on behalf of an individual, which would be the case if subsection (1) were removed. The effect of the hon. Gentleman's amendment would mean that that option was not available.

Julian Brazier (Conservative, Canterbury)

I am sorry, Marion, but—[Interruption.] I am sorry, that was terribly rude. My laryngitis has gone to my head as well as to my throat. I hope that you will forgive me, Mrs. Roe; I am not feeling well.

I must ask the Parliamentary Secretary to think about what she has just said, because it surely cannot be right. If the subsection were deleted, other parties would be able to bring prosecutions. The Attorney-General would not come into the equation at all, nor would judicial review.

Rosie Winterton (Labour, Doncaster Central)

If subsection (1) were removed and we reverted to a situation in which the Crown Prosecution Service, for example, took the decision, the decision would have to be judicially reviewed. At present, a decision of the NCSC not to prosecute is reviewed by the Attorney-General. On top of that, there is a further judicial review if required, but there is no intermediary stage at which the Attorney-General's Office reviews the NCSC decision.

I understand that we need to move on. I hope that, with my assurances, the hon. Member for East Worthing and Shoreham will accept that the measure ensures that individuals have an opportunity to take action if they feel that regulations have been breached, without compromising their ability to pursue the action further if necessary. The Government believe that the measure will assist individuals and will ensure that adoption agencies are properly monitored by an expert body with the power to prosecute if necessary. I hope that the hon. Gentleman will consider withdrawing his amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Parliamentary Secretary tried hard to reverse my disappointment, but I fear that I am still disappointed. She patently fails to consider the intermediate stages, available to individuals and other prosecutory agencies, between the regulatory role of the NCSC, which at some stage becomes a prosecutory role, and the Attorney-General's Office, which under the proposed terms is likely to be flooded with many complaints from individuals.

We are in no way seeking—the Parliamentary Secretary failed to give evidence otherwise—to restrict the powers of the NCSC to prosecute. She prayed in aid the fact that in its regulatory role it will have the powers to inspect adoption agencies every three years. That is a welcome improvement on the current system in which adoption agencies are inspected less often. However, we are talking not only about inspections to reveal sloppy record-keeping, but about those that we hope will reveal serious professional incompetence that had led to children suffering because a job had not been properly done.

Rosie Winterton (Labour, Doncaster Central)

To clarify, we are talking about breaches of regulations. That is the whole point of the clause, and I want to ensure that the hon. Gentleman understands that.

Tim Loughton (Conservative, East Worthing and Shoreham)

Absolutely—but the NCSC's inspection role is to ensure that the adoption agency is doing its job properly, is properly set up to be a recognised adoption agency and is abiding by the as yet unseen regulations.

The Parliamentary Secretary particularly alarmed me when she said that the agencies would be inspected every three years. Under the Government's proposals in subsection (2)(a), which we want to amend, there is a three-year ceiling. After that period, action can be taken if an offence has been committed. What would happen if a team of inspectors inspected an adoption agency and identified an offence that had been committed just after the previous inspection three years before? By that time, and by the time that the inspectors had got the evidence and their act together to do anything about the offence, the three years would have expired. That is another reason why the second part of the clause is woefully inadequate. The details given by the Parliamentary Secretary about the three-yearly inspection do not remotely reassure me.

Hilton Dawson (Labour, Lancaster and Wyre)

Is not the hon. Gentleman searching for something with which to pick a quarrel with my hon. Friend the Parliamentary Secretary? The Bill provides people who are not happy with the ultimate regulatory body of care services, and who do not have the means to appeal, to go directly to the Attorney-General, over the heads of the NCSC. My hon. Friend has shown exactly how the clause is in line with a Bill that opens up adoption and gives people many more opportunities to question adoption procedures. The hon. Gentleman makes the case that the NCSC's three-year inspection regime somehow conflicts with the three-year rule under the clause, which is nonsense. The NCSC will intermittently be involved in concerns raised by consumers of the services that they inspect.

Tim Loughton (Conservative, East Worthing and Shoreham)

To pick up the hon. Gentleman's words, the Parliamentary Secretary is the last person with whom I want to pick a fight. I have been struggling to give her every opportunity to elucidate a woefully inadequate clause. I have not been angered or annoyed. I am merely disappointed that she has patently and utterly failed to elucidate the clause, but she has a difficult brief, and the clause is difficult to defend. We are not suggesting anything that would close off any avenues, and do not see why there should be restrictions under the clause. We are not picking holes, but I wish that I had the hon. Gentleman's faith that such regulatory bodies and new organisations, many of which we agree with, will be completely up to their job, will be manned by officials who know exactly what they are doing, and that no problems will arise. In the real world, of course, that does not happen.

Hilton Dawson (Labour, Lancaster and Wyre)

Is not the whole point that if those institutions and individuals are not up to their job, powerless individuals in the system can go straight to the top to the Attorney-General—aided, no doubt, by their able Members of Parliament—and have matters dealt with in a way that makes sense to people who are not used to going through legal processes and courts of law?

Tim Loughton (Conservative, East Worthing and Shoreham)

The hon. Gentleman has missed the point that we have been trying to make.

We have spent an hour and three quarters debating my probing amendment—the first amendment of the morning. Because of the inadequacy of the Parliamentary Secretary's explanations, I shall have to ask my hon. Friends to push the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 9.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 148, in page 51, line 10, leave out 'three' and insert 'five'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to debate the following:

Amendment No. 132, in page 51, line 11, leave out 'but, subject to' and insert 'except'

Amendment No. 149, in page 51, line 12, leave out 'six months' and insert 'one year'

Amendment No. 133, in page 51, line 14, after 'knowledge', insert—

'up to seven years after commission of the offence.'.

Tim Loughton (Conservative, East Worthing and Shoreham)

We proceed to debate the amendment of subsection (2), to which I have alluded. We are seeking to change a number of things in order to give maximum flexibility so that where misdemeanours have occurred they can be discovered in good time and action against them can be taken. Many of the problems can take many years before coming out of the woodwork.

Amendment No. 148 refers to paragraph (a), under which at the moment the Government stipulate that proceedings have a three year-limit. I made the exceedingly pertinent point—the hon. Member for Lancaster and Wyre (Mr. Dawson) did not concur with it—about three-yearly inspections, which may be the device by which problems are brought up, although, hopefully, matters would not just rely on such inspections. I am genuinely trying to probe the Government's thinking behind their choice of various time spans. We suggest widening the time from three to five years after the offence has been committed except, under amendment No. 132, when the evidence is brought within a period of time that the Government propose should be six months. Amendment No. 149 would extend that to one year

''from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.''

Again, I do not see what the rush is. Given that we are dealing with very complicated matters and with children—evidence may not come out until a later stage for a whole manner of reasons, of which we are all well aware; Members on both sides of the Committee have given examples of complicated cases—why is the provision time limited at all?

Amendment No. 133 would mean that proceedings could be brought concerning sufficient evidence coming to light for up to seven years only after the commission of the offence. We might ask why that should be time limited, but it is reasonable to define a time to focus people's minds on how long such a device applies and for how long people need to keep records. Evidence must be available for seven years, not indefinitely; the provision should not be open-ended. I shall not go back over old ground, but the proposal refers to offences under clauses 9 and 56, about which we expressed our dissatisfaction with the level of fines and everything that went with it. In tabling the amendments, we are probing the Government on their reason for what appear to be arbitrary time scales.

Jonathan Djanogly (Conservative, Huntingdon)

I support the amendments. The explanatory notes on clause 94 state:

''All prosecutions of offences under this Bill are to be brought within six months from the date the prosecutor has sufficient evidence to do so''.

The implication is that if evidence exists, prosecutions must be brought. However, clause 94(2)(b) states:

''Proceedings for an offence by virtue of this Act . . .

(b) may be brought''.

There appears to be an inconsistency between the Government's intention that prosecutions should be brought and the Bill's wording that they may be brought. I should appreciate hearing the Parliamentary Secretary's explanation.

I concur with my hon. Friend that six months seems a bizarrely short period in which the prosecution may or must be brought. It can take a lot of time to put together evidence and to make inquiries; 12 months is much more appropriate.

It is wise to have some finality and I therefore support the proposal for a prosecution to be brought within seven years after commission of the offence.

Rosie Winterton (Labour, Doncaster Central)

Perhaps I can help to relieve the disappointment and despair felt by the hon. Member for East Worthing and Shoreham. It is vital for prosecutions to be brought in a timely manner, commensurate with the offences committed. There should be the minimum possible delay in pursuing prosecutions, as delay could jeopardise them, as hon. Gentlemen know. The Bill seeks to maintain momentum in prosecutions but is flexible enough to allow a longer time scale for prosecutions to be brought—up to three years after the commission of the offence where it did not come to light immediately, for example, by an inspection. I hope that that answers the question asked by the hon. Member for East Worthing and Shoreham. To clarify another point, adoption agency records have to be kept for 75 years. That is outwith the amount of time that is set down in the Bill relating to prosecution.

Most of the cases that will arise under the Bill will be dealt with in the magistrates courts, where the usual time limit is six months after the offence is committed. Therefore, the clause allows a longer time scale for prosecutions to be brought—up to three years after the commission of the offence. That is because offences do not always come to light immediately.

The six-month and three-year periods are the same as those in the Care Standards Act 2000, and already provide for a considerable extension of time allowed compared to the normal six-month limit for the prosecution of offences subject to summary conviction in a magistrates court. The six-month period is also the one that currently applies to offences under the Adoption Act 1976. So the Bill already represents a considerable enhancement in protection.

Not all the offences in the Bill are dealt with only in the magistrates court, which ordinarily track the six-month time limit for prosecution. For example, offences under clauses 80 and 82 are either-way offences: they can be tried in either the magistrates court or the Crown court. Higher penalties are therefore available, including, in the Crown court, imprisonment for 12 months, an unlimited fine or both.

To elaborate, clauses 80 and 82 restrict bringing children into the UK and taking children out of the UK in order to avoid unscrupulous buying and selling and illegal adoptions. Unless a time limit is specified in legislation, as it is in the Bill, there is no set period in which a prosecution must be brought. However, if there is a lengthy delay between an alleged commission and prosecution, the court can stay the proceedings. The Adoption (Intercountry Aspects) Act 1999 provides that these offences are subject to the six-month and three-year time limits—in contrast to the six-month time limit that applies to all other offences under the 1976 Act. As I have said, the Bill goes further by providing for Crown court prosecution in serious cases to create a greater deterrent effect.

The Government believe that the Bill, as currently drafted, provides the appropriate time limits for summary offences—actually extending the usual period allowed. However, for the more serious offences under the Bill, such as those relating to taking a child out of the UK—I hope that this will address the points that the hon. Member for East Worthing and Shoreham is raising by tabling his amendments—we will consider, as a means of further enhancing the deterrent effects, whether to remove the time limits for Crown courts. That is aimed at ensuring that offenders cannot escape prosecution simply by lying low for several years. I hope that that reassures the hon. Gentleman that we are prepared to examine his point, particularly with regard to more serious offences, and that in the light of that assurance, he will feel able to withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

We have scored a bit of a result. The Parliamentary Secretary obviously appreciated the thrust behind our amendments, and I am heartened by the importance that she attaches to ensuring that the momentum of prosecutions is promoted in the Bill. I am heartened also by the information about keeping records for 75 years and her point about considering the implications of strengthening the law in the Crown court against offenders who commit offences under the Adoption (Intercountry Aspects) Act and may be lying low out of the reach of justice. On the basis of her heartening and detailed response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 ordered to stand part of the Bill.

Clause 95 - Appeals

Tim Loughton (Conservative, East Worthing and Shoreham)

I wanted to raise a quick point with the Parliamentary Secretary. The clause is short, deals with appeals and needs only a little elucidation. I return to the problems of differential welfare tests. By tagging the Adoption and Children Bill on to the Children Act 1989 for the purposes of appeals in the magistrates court, there could be confusion about which welfare test should be applied unless it is clearly spelled out or the tests are identical.

I refer the Committee to section 22 of the 1989 Act, where it sets out the checklist. We may call it a checklist in the absence of the Minister of State, who was irritated whenever the word was used and then proceeded to use it several times herself. The checklist in the 1989 Act is different from that set out in clause 1. In an earlier deliberation on clause 1, I raised the fact that when arguing appeals, clever lawyers—it is their job to be clever and, I fear, earn their living expensively in many cases—could draw a distinction between the welfare checklist in the 1989 Act and that set out in the Bill. Will the Parliamentary Secretary briefly address that point and tell the Committee whether she envisages the problems that I have raised both now and earlier?

Rosie Winterton (Labour, Doncaster Central)

I should first set out the background to clause 95, so that we know what we are discussing.

The clause applies the provisions relating to appeals in magistrates courts in section 94 of the Children Act 1989 to the Bill, and will ensure consistency in the handling of cases involving children. An appeal against the making of an order by a magistrates court in relation to adoption or placement proceedings shall lie to the High Court. Where a magistrates court has power under the Bill or in rules to decline jurisdiction because it considers that the case can conveniently be dealt with by another court, no appeal may lie against the magistrates court in the exercise of that power.

The hon. Member for East Worthing and Shoreham made a point about the adoption checklist as opposed to the Children Act checklist. It will help to clarify the situation if I assure him that decisions about appeals are not decisions relating to the adoption of a child, but decisions about where an appeal will go. I understand why the hon. Gentleman wanted clarification, but his point was at a slightly different tangent.

The clause aligns the appeal process from magistrates courts orders in placement and adoption proceedings to the existing arrangements for appeals against Children Act orders in the magistrates courts from the making of magistrates courts orders or where magistrates decline jurisdiction.

Consultation on the operation of the system for appeals in family cases was undertaken with key stakeholders last year. The hon. Gentleman may be further reassured if I say that we are in discussions with the senior judiciary on the best way forward. Currently, there is no formal time scale, but we are taking the opportunity with the Bill to ensure consistency in the handling of cases. I hope that the hon. Gentleman feels able to support the clause.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Parliamentary Secretary for that response. She is obviously entirely on top of her brief on the clause, and I am happy for us to move on.

Question put and agreed to.

Clause 95 ordered to stand part of the Bill.

Clause 96 - Proceedings to be in private

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 134, in page 51, line 21, after 'camera', insert

', except where the judge deems it to be in the public interest to make all or part of the proceedings public and, in all cases so deemed, the child's identity shall be protected.'.

Marion Roe (Conservative, Broxbourne)

With this we may discuss amendment No. 10, in page 51, line 21, at end add—

'(2) Notwithstanding subsection (1), any proceedings may be reported subject to the following conditions—

(a) the name of any adult or child involved in the proceedings must not be reported;

(b) no place other than that of a local authority may be reported;

(c) the name of any school or other institution, the naming of which might reasonably be expected to make possible the identification of any adult or child involved in the proceedings, must not be reported.'.

Tim Loughton (Conservative, East Worthing and Shoreham)

I fear that we may not be able to deal with this clause as quickly as we did with clause 95, because Opposition Members are mystified as to why the Government appear to be restricting information about serious cases, rather than providing full access to information when things go wrong.

Amendment No. 134 would make it more likely that the proceedings of a case where there had been infringements against which proceedings had taken place could be made public where a judge defined that that was in the public interest, subject to provisos over identifying the children involved. We assume that the right of access to such information is in the public good and the onus should be on individuals to prove otherwise.

The second amendment was tabled primarily by my hon. Friend the Member for Isle of Wight (Mr. Turner), who takes a keen interest in the proceedings of the Committee even though he failed to make the grade by becoming a member of it. I am sure that that only emphasises the enormous amount of talent on the Opposition Benches and the interest in the Bill. We very much welcome my hon. Friend's contribution to the Committee.

Let me return to amendment No. 134. We take the view that proceedings should be in private only if, and to the extent that, they relate to a particular child. If an adoption agency or a person running an adoption service contravenes the Act, there is no good reason why their names and behaviour should not be publicly exposed. It may be in the public interest to be aware of unsavoury adoption agencies' activities. A small minority of people who do not have the child's best interests at heart have sought to profit from adoption. The Bill is designed to work against those people. That does not detract from the excellent, necessary, worthwhile and dedicated work of the vast majority of adoption agencies and support services. However, we are debating infringements.

The clause includes a curious feature in line 20 that proceedings in the High Court may be ''disposed of in chambers'', whereas proceedings in the county court must be heard and determined ''in camera'', as set out in line 21. Why does only the High Court have discretion to decide whether to hear proceedings in public? When parties may benefit from obtaining publicity, they will be tempted to take proceedings at greater expense in the High Court. County court judges deal with the vast bulk of adoption work and should have the same discretion.

The Parliamentary Secretary may have the same success as she did previously in assuaging our curiosity and concern. Why are the two types of court treated differently, and why are the Government intent on hiding information about where the service is not functioning properly? Individuals who should not be involved in that service must be named and shamed. The Government are very good at naming and shaming various professionals, so why are they reluctant to name and shame unscrupulous individuals who should not be involved in adoption? Openness is in the public interest. If a judge decides that it is in the public interest, why should he be fettered by the Bill? If people who have escaped the rigours of regulatory inspection, and have been licensed, set up an adoption agency and, as a result of their activities, the welfare of children suffers, details of that crime should be put into the public domain, unless there is a reason for not doing so—for example, because it does not benefit the welfare of the child. Under the amendment, the judge, who has the case in front of him and is best placed to decide whether it is in the public interest to disclose, would have that power.

I am reminded of a notorious and horrific case that happened at the hands of the social services department in the London borough of Richmond, which is controlled by the Liberal Democrats. A story in The Mail on Sunday strategically revealed the background to the problems of the case. It clearly demonstrates where disclosure of information in the public interest was absolutely right, yet the courts were used to prevent it:

''The Mail on Sunday told last year how Richmond social workers went to the home of Roger and Frances Holmes to take away a four-year-old girl, known as Child X, whom they had fostered for nearly two years.

The couple wanted to adopt her but were rejected by social workers who said she should go to a family in London from her native African country.

Shortly after Child X was taken away from the couple in September last year, the Government's SSI''

—social services inspectorate—

''carried out a review of social services in Richmond as part of its national programme of inspections. Its report''

—published in January—

''said the needs of children at risk, in care or with foster parents were not being put first by social workers.

Most worryingly of all, cases on the child protection register—which should be reviewed at six-monthly intervals—were not being reviewed.

Richmond had held only 53 per cent of the reviews that it should have done during 1999 and 2000.

And fewer than half the statutory reviews required for children in family placements were carried out in time—'a significant failing', the report concluded. In some cases there was no evidence to suggest that recent referrals had been dealt with at all.''

The authority then brought an injunction to gag the child's former carers. On behalf of Roger and Frances Holmes, The Mail on Sunday fought the council in the High Court and revealed how child X was taken, sobbing, from the Holmes' west London home. An article in September continues the story:

''The four-year-old girl, who lived with them for two years, was taken to a family with the same racial background.

In spite of a High Court ruling, the Holmeses have been denied access by the council because they spoke up about the case.

Until last week, they were pinning their hopes on the review carried out by former head of Devon social services Andrew Williamson CBE. The inquiry was announced last December.''

Mrs. Holmes, a registered childminder for 30 years, has received sinister phone calls and death threats, and the Holmes have been banned from fostering in future, despite the fact that they have proved themselves worthy foster parents in the past. Richmond council has subsequently claimed that the couple breached an agreement not to disclose information about child X without its consent.

That ghastly case goes to the heart of the amendment. We are saying that it is in the public interest that misdemeanours be made public. In the example that I gave, the misdemeanours of Richmond council social services department and its failures to carry out its duties as a social services department are very much in the public interest. People who live in Richmond and may be considering going to the social services department in its role as an adoption agency should be fully aware that an inspector has deemed it not to be up to scratch.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I am puzzled by what the hon. Gentleman is saying. If an adoption agency is deemed not to be up to scratch, surely it will not be allowed to practise. We would not want a situation in which people do not go to adoption agencies because such agencies are not deemed to be capable of doing a good job. The purpose of regulations and inspection should be to ensure that all licensed adoption agencies are up to scratch. I am sure that that is the Government's intention.

Tim Loughton (Conservative, East Worthing and Shoreham)

The fact is that Richmond council social services department is still acting as an adoption agency, even after its shortcomings were revealed in a report and after it tried to gag responsible people who had been doing the job of foster parents—in this case for 30 years—with an unblemished record. The heavy hand of Richmond council sought to gag them and to prevent their speaking out against what they saw, rightly, as inadequacies in a system that had taken a young child who was happy with her foster parents away from them.

Julian Brazier (Conservative, Canterbury)

My hon. Friend has been characteristically generous in his reply by keeping it particular, but the intervention by the hon. Member for Sheffield, Heeley, was odd. On the strength of Government-commissioned research, Ministers have spoken out strongly against bad practice in agencies throughout the country, mostly local authorities. There is much good practice too, but many local authorities have been guilty of bad practice. The amendment seeks to address the question of why judges should be prevented from ever making the proceedings public.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is entirely the point, and I am grateful to my hon. Friend for elucidating it. If the hon. Member for Sheffield, Heeley had been to the Local Government Association social services conference in October, at which the Secretary of State for Health and I spoke, she would have known that the entire basis of his speech was naming and shaming social services departments that had underperformed. We are trying to ensure that when social services departments' shortcomings are revealed, they are not gagged and prevented from revealing what is obviously in the public interest. The Secretary of State agreed that it was in the public interest for shortcomings in social services departments to be revealed, but he went about it in the wrong way by pointing the finger of blame at certain social services departments, many of which suffer woeful billion-pound underfunding against standard spending assessments under this Government.

Hilton Dawson (Labour, Lancaster and Wyre)

Has the hon. Gentleman noticed a good word about social workers or local authority social services departments in The Mail on Sunday?

Marion Roe (Conservative, Broxbourne)

I ask hon. Members to keep to the amendment, please.

Tim Loughton (Conservative, East Worthing and Shoreham)

If the hon. Gentleman is suggesting that The Mail on Sunday is making a fuss about nothing in respect of the case in Richmond, he is wrong. The problem, as I said in my speech in Harrogate just before the Secretary of State spoke, is that no one is interested in reading in the papers about the plane that landed safely; it is that sort of business. I agree entirely with the hon. Gentleman that we hear far too much about the things that go wrong in social services departments, especially those involving children, such as the high-profile Victoria Climbie case and the John Smith case. Every day, hundreds and thousands of children are looked after successfully and lovingly because of social services departments, having been placed with exceedingly skilled and dedicated foster parents or in other forms of care by local authorities. Those are the vast majority of cases; if they were 100 per cent. of cases the Bill would be unnecessary, as it tackles the cases in which things go wrong. It is right to cite cases in which things have not gone wrong, to learn from an example and to ensure that there are measures according to which we can legislate against anything going wrong in future.

The amendment would ensure that when things go wrong, a heavy-handed local authority cannot use the courts to take out a gagging order. Even when a judge thinks that it is in the public interest that the shortcomings of a local authority or an adoption agency should be revealed, the proposal as drafted will prevent him from doing so. The amendment would tackle that and enhance the Bill, which seems exceedingly reasonable. We cannot understand why the Government want to take the opposite course and restrict the amount of information in the public domain.

Amendment No. 10 was tabled primarily by my hon. Friend the Member for Isle of Wight, whose interest in the subject is well known. I was not trying to be derogatory about him earlier. He is involved in many other important parliamentary matters, but his record on education and children's issues is particularly well known. That is why he tabled the amendment, which would make the welfare of the child the ultimate consideration. In most cases, that means respecting the anonymity of the child.

The amendment would add a subsection so that all cases could be disclosed and discussed by the courts, unless there was a danger that a child's name might be revealed. Information about the location of a child would also be restricted, as would the name of his school or other organisation if it compromised the child's anonymity, which is the prime consideration. The amendment would therefore permit the reporting of proceedings, subject to wide restrictions—all predicated on promoting the welfare of the child.

As my hon. Friend said in discussing the amendment with me, some current restrictions are understandable, but they make it almost impossible for the layman to understand much about care and adoption proceedings. They place an unreasonable limit on freedom of information about an issue involving a clear public interest.

The thrust of both amendments is to assure disclosure of information in the public interest, subject to child anonymity. I challenge the Parliamentary Secretary, when she speaks to the amendments, to say why covering up information about the track record of certain adoption agencies furthers the public interest.

Jonathan Djanogly (Conservative, Huntingdon)

I support all that my hon. Friend has said. Reasons must be given why the High Court has proceedings in chambers, while the county courts are heard in camera. County court judges deal with the great majority of cases, but that could change. If people want more publicity, for whatever reason, they will push for cases to go to the High Court, which would be much more expensive. That might not be to anyone's advantage.

I back up my hon. Friend's point about the rights of the child. Those are what we want to protect, not the right of adoption agencies to maintain their reputations when they deserve to be questioned. The presumption should be that the proceedings should be heard. Wherever the hearings take place, children's right not to be reported should be the outstanding consideration.

Rosie Winterton (Labour, Doncaster Central)

I shall start by clarifying one point. Hon. Gentlemen raised important questions about the prosecution of an adoption agency, and seemed to feel that the clause would prevent that. The clause deals with the civil courts, whereas the proceedings to which hon. Gentlemen referred would be heard in criminal courts and could not be held in private. I hope that that gives them some reassurance about the cases that were mentioned, because they seemed fearful that there was some attempt to cover up actions being taken against adoption agencies by the National Care Standards Commission. Such actions would be brought in the criminal courts, which do not sit in private.

As the hon. Member for East Worthing and Shoreham said, amendment No. 10 would allow for detailed reports about all adoption cases to be placed in the public domain without identifying details. As has been said, at present reporting can take place on a case-by-case basis, invariably anonymised, only if the court gives permission. Amendment No. 134 would seemingly give the judiciary in the county court discretion to allow all or part of any adoption proceedings to be held in open court, which would mean that anyone could be present, if the judge deemed that to be in the public interest. The intention is that the identity of the child would be protected in all such cases.

There is confusion about two questions. One is who should be in court—whether the proceedings are private or open—and the other is how much of the proceedings should be reported. As Opposition Members have said, and I am sure all my hon. Friends would agree, when cases come before the courts concerning sensitive issues in the context of adoption—we are talking about adoption proceedings, not the prosecution of agencies—it is important to protect the welfare and interests of children. In that context, the Bill provides that only people directly concerned with the case should be present, and the public should not be admitted. Cases involving children are usually conducted in private, to safeguard the welfare of children.

The position on children's cases in England and Wales was challenged in the European Court of Human Rights last November in the cases of P v. UK and B v. UK. The court upheld the UK's position.

As for who should be present in court and what should be reported, we intend the courts to retain their discretion to allow reporting of cases, suitably anonymised, when that is in the public interest. I hope that my comments have met the concerns that led the hon. Member for East Worthing and Shoreham to move amendment No. 134.

On amendment No. 10, there may be some room for improvement—

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

Special Standing Committee

Clause 96 - Appeals

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

I remind the Committee that with this we are taking amendment No. 10, in page 51, line 21, at end add—

'(2) Notwithstanding subsection (1), any proceedings may be reported subject to the following conditions—

(a) the name of any adult or child involved in the proceedings must not be reported;

(b) no place other than that of a local authority may be reported;

(c) the name of any school or other institution, the naming of which might reasonably be expected to make possible the identification of any adult or child involved in the proceedings, must not be reported.'.

Rosie Winterton (Labour, Doncaster Central)

It is a great pleasure that you are the Chairman, Mr. Stevenson, in my first afternoon sitting as a Minister on a Standing Committee.

This morning, we were discussing amendments to clause 96. I was in the midst of saying that I hoped that Opposition Members took my point that many of the cases that they mentioned would apply to the criminal courts, whereas clause 96 applies only to the civil courts. I was saying also that there might be some room for improvement in the drafting of clause 96. However, before I set out where I think that might be, I should explain a little more about the confusion reflected in the amendment.

There is a difference between who is allowed into a court and what is reported about court proceedings. The current rule is that only the High Court can allow the public to be present in court during an adoption case. The Bill maintains that position. The current practice is that the High Court tends not to allow the public to be present to hear evidence from, for example, the family, social worker, guardian or psychiatric experts, because it preserves the principle that the child's welfare and privacy should be respected. I am sure that all Committee members will appreciate that witnesses in such circumstances are asked to give evidence about painful and sensitive topics. We feel that to have an open court would not be appropriate, and I hope that other hon. Members agree. However, the High Court gives all or part of its judgment in an open court when it feels that that is in the public interest. Some cases might involve part of the judgment being given in open court and the rest given in private, and many of the details of individual children would be in the latter part.

It may help to give some examples of when a judgment would be given in open court, as it may touch on some of the points raised by Opposition Members. A judgment could be given in open court when it raises issues of public interest, perhaps issues about the behaviour of a local authority or an adoption agency that has failed in its public duties because of the circumstances of the adoption; or there could be an issue about the state of the law, for example, if the judge feels that the law is confusing or has not been properly enforced and that it is in the public interest to have that part of the judgment heard in open court. However, if the judgment is given in open court the judge will use initials in respect of the child and the parents and usually the local authority so that anonymity is preserved. That judgment is subsequently reported in the law reports.

In a recent case involving care proceedings, the judge named the local authority when criticising it in the judgment in open court. It has to be said that judgments in open court in connection with the Bill would be more unusual because adoption proceedings tend to focus on whether a child should or should not join a new legal family and it is quite unusual for that to be a matter of public interest. In the same way, some of the cases the Opposition Members have—quite rightly—raised would not necessarily be covered under the Bill because it relates specifically to adoption proceedings.

We believe that it is right that only the High Court should be able to sit in open court, because the High Court tends to deal with issues of genuine public interest and concern, which makes the open court approach more suitable. I should also say that the rules also allow for a transfer of a case from a county court to the High Court if it is felt that the case is of such import that it should be reported in open court. That is the issue surrounding open or closed courts—courts into which the public are allowed or courts into which they are not allowed.

The issue of what is reported about court proceedings has been a cause of concern. The reporting of court proceedings can refer to a person—who is allowed to be in court—telling someone else what went on in court; or to media reporting by ordinary reporters who sit in the court with items going into newspapers, magazines and so on; or to reporting of transcripts of judgments given by the higher judiciary, county court or High Court judges in the official law reports. Currently, courts consider what they think should be reported in each individual case, with the default position being no reporting to protect children. Both the county court and High Court have the ability to make judgments public while protecting the anonymity of the child if it is in the public interest to do so. The Bill makes no change to the law on reporting. The law must strike a balance between freedom of information and protection of the privacy of children. We must remember that we are dealing with adoption cases, not the other cases that we discussed this morning.

The current drafting of the clause certainly allows room for improvement. We could examine whether there should be an automatic bar on identification in the county courts and High Court to match that in the magistrates courts. I will take the amendments away and consider them. We will decide whether county courts should have the ability to revert to open court, but good reasons would be needed to persuade us firmly. Individuals can still go to open court through the High Court, and if necessary transfer from county court to High Court. We might be able to tighten up the clause by writing in the issue of anonymity. I hope that those assurances will persuade the hon. Member for East Worthing and Shoreham (Tim Loughton) to withdraw his amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I, too, welcome you back to our deliberations, Mr. Stevenson. You missed some interesting discussions this morning, and we appear to be making swifter progress.

I feel rather guilty because I accused the Minister of being slightly disappointing in her earlier responses, and she obviously took it to heart. After the benefits of reflection and a good lunch, she has returned and responded obligingly, seriously addressing several of our points. The point about dealing with civil courts was a fair one. Proceedings went well before lunch, despite the utterance—twice—of ''anonymised'', which I refuse to accept is a word in the English language, although I understand the drift. Before lunch, the Minister said that there was ''room for improvement'' in drafting of the clause. A few sentences ago, that was upgraded to ''certainly room for improvement'', and she has now offered to take away the amendments and study them, presumably with a view to tabling new ones that will make clause 96 clearer and closer to the best interests of the child. With great pleasure, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 ordered to stand part of the Bill.

Clause 97 - Officers of the Service

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 150, in page 51, line 35, after 'application', insert

'or by any local authority in whose care the child has at any time been placed.'

We now come to an interesting clause that deals with officers of the Children and Family Court Advisory and Support Service, which has been a bone of contention in the months since it was set up. The Minister said some interesting things about CAFCASS, but I will leave that my general concerns to debate on amendment No. 136. You may oblige us with a clause stand part debate, Mr. Stevenson, depending on the length of discussion of the clause.

The clause deals with the nature of the officer appointed by CAFCASS, or ''the Service'' as it is described in the clause, to act on behalf of the child, the child obviously not being in a position to act for himself. The response from lawyers is that there are many tongue-twisting descriptions of people in the Bill: the Criminal Justice and Court Services Act 2000 got rid of the court welfare officer and the guardian ad litem, and lawyers are now faced with calling the relevant individual the ''children and family court reporter'' or the ''children and family court advisory and support service officer'' or the ''officer of the Service'', as described in clause 98. It is not beyond the wit of the Government to propose a snappier title to describe that important person.

There needs to be a specific link between the person who acts on behalf of the child in care proceedings and the person who acts in adoption proceedings. The restriction in subsection (2) is that, for understandable reasons, the person appointed should not be employed by the local authority that has made the application. Our amendment would extend that exemption to employees of a local authority that has had care of the child in the past. There is a risk of partiality, however it may be expressed, on the part of someone who has known a child in their capacity as an employee of a local authority that has had charge of that child. The officer of a local authority may also have a view about how the subsequent local authority has dealt with the child, which may make his treatment partial. I am not casting aspersions or suggesting that that is likely to happen, but it would be a sensible safeguard if the Government recognised that employees of a local authority should be exempted if the child has been in the care of that local authority.

The same exemption should apply to a local authority that has had more recent care of the child. I do not know whether the Government would want to qualify how recent that care has to have been, but we are open to suggestions in the case of a child with a long-standing record of placement orders. The amendment would simply extend the exemptions under subsection (2)(a).

Rosie Winterton (Labour, Doncaster Central)

As the hon. Gentleman says, clause 97(2)(a) prohibits the appointment as CAFCASS officer in a case involving a placement order of a person employed by the local authority that is making the current application. The intention is to prevent conflicts of interest such as a self-employed guardian acting on behalf of a local authority that is involved in a case as well as on behalf of the child. The amendment would extend the category of persons who may not be appointed to include any person employed by any local authority that has ever had the care of the child involved. That would prevent not only current conflicts of interest, but also any suspicion that a children's guardian might be overly influenced by a connection with a local authority that was previously involved in the case.

One of the purposes of the current Bill is to align practice in adoption and care cases more closely. It is noticeable that a wider restriction applies in care cases than is currently contained in the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

I am interested in hearing the Parliamentary Secretary's opinion on a matter related to conflicts of interest. Reading subsection (1)(b), it appears that the same person could act for the child and also act effectively as an adviser to the parents who are giving their consent. Is that not in itself a conflict of interest and does the Bill address that conflict?

Rosie Winterton (Labour, Doncaster Central)

There may be instances in which there has been a relationship between the two but I will come back to that point.

As I was saying, one of the purposes of the Bill is to align practice in adoption and care cases more closely. It is noticeable that a wider restriction applies in care cases than is currently contained in the Bill. Rule 4.10 (7) of the family proceedings rules prohibits the appointment as guardian ad litem of anyone who has been employed by a local authority and involved in arrangements for the child during the previous five years. If there was any conflict of interest, as in the case that the hon. Member for Huntingdon (Mr. Djanogly) raises, that person would not be allowed to act in any way. The role of the guardian ad litem is to protect the interests of the child; therefore, if a person were acting for any other party, there would be a conflict, and that would be ruled out.

Jonathan Djanogly (Conservative, Huntingdon)

For clarification, is the Parliamentary Secretary saying that the conflict would be ruled out somewhere in the Bill, or under another piece of legislation? She mentioned guardians ad litem but I thought there were no such things anymore.

Rosie Winterton (Labour, Doncaster Central)

I am sorry—I am using out-of-date language. There is usually no need for a children's guardian in a case where the parent agrees to the adoption. In such cases there would be a reporting officer to the court as opposed to the child's interests being separately represented by a guardian; the whole issue would be dealt with by a reporting officer. In some cases the children's guardian will also report on the child's interests: if the children's guardian perceives a conflict of interest a different officer will be appointed.

The amendment goes too far in excluding anyone connected with a local authority that was previously involved in the case, however remote that period and whether or not that individual has ever had any personal connection with the case. However, I am certainly not unsympathetic in principle to the amendment. If the hon. Gentleman agrees to withdraw it, I undertake to consider the matter further to establish whether tightening up the provision to bring it more into line with other provisions is possible. If that is deemed appropriate after consultation, the Government will table an amendment at a later stage.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am on a roll: that is two hits, and with the next amendment standing in my name, I might be ambitious and go for a hat trick. Before in-flight refuelling, the Minister said that the amendment would place impossible limits on anyone working in local authorities. That is why I added the caveat that the Minister might like to reconsider the matter in the light of a time exemption or restriction to a certain number of authorities. My hon. Friend the Member for Huntingdon raised further important considerations about potential conflicts. The Minister has promised to look again and she is ''certainly not unsympathetic''—a positive statement in a negative sort of way—so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I beg to move amendment No. 136, in page 52, line 9, at end insert—

'(5) The Service shall lay an annual report before Parliament dealing with its performance, staffing and all matters relating to the exercise of the functions bestowed upon it by this Act.'.

CAFCASS is one of the most important aspects of the Bill. If the Bill is to succeed, the service must succeed. Over the weekend I discussed the issue with a senior circuit judge in north Wales, a family court judge. He was genuinely fearful of the headlong rush to set up CAFCASS and he condemned the treatment of the guardians—whether ad litem as was, or children's as now. A time bomb could be lying in the Bill. If the service fails, the Bill fails: it is as simple and obvious as that.

Guardians ad litem were introduced to provide fully independent people to protect the interests of children. They fulfilled that role through the provision of detached, objective assessments and expert advice on child care matters to the courts. That has been the position since 1984. As a practitioner, I know how heavily lawyers and the courts depend on their independence and expertise. They are clearly a core service in the whole scenario.

It is sometimes said, ''Why try to repair what has not been broken?'' An allied problem is whether to bring the official solicitor, the guardians and court welfare officers together under one roof. That potentially poses a great conflict of interests, to which the Minister referred earlier. They have wholly different functions, yet now fall under one particular roof. Nothing is more likely to ensure the Bill's success than the guardians' independence of mind. We must preserve their expertise and continue to rely on those who have worked in the field over the past few years.

We all know that securing the best interests of children must be the driving force in every case. Without the good offices of guardians and the best possible level of advice, we will fail the children. That shows how vital the guardians are. They face considerable pressure because there are too few of them to carry out the necessary work, which can be hard and stressful. They frequently undergo emotional stress. Guardians often have to issue advice that they know will be highly unpopular, but they will always be driven by what is best for the child or young person in all the circumstances.

The dispute between guardians and the new service, CAFCASS, has been mentioned. CAFCASS faces three distinct problems: the dispute with children's guardians; the fact that the service is already over budget; and the fact that its chief executive is suspended, which does not augur well. The Minister quite properly mentioned earlier that some of the guardians' difficulties could be overcome through consultation, but their treatment by CAFCASS was improper and unreasonable. CAFCASS is one step removed from the Government, so I am not levelling oblique criticisms at the Minister or the Department. I echo the words of the senior judge to whom I spoke over the weekend in saying that the headlong rush to CAFCASS might well prove to be a mistake. We shall have to reflect at leisure later. Because we are dealing with the lives of children and young people, it may, unfortunately, have far-reaching consequences.

The Parliamentary Secretary will know that, over summer last year, CAFCASS decided to ensure that all guardians under its auspices were employed by the service. Most, if not all, experienced guardians had been self-employed and many would tell the Committee that that was one of the safeguards of their independence. An application for a judicial review was made to the Family Division of the High Court. Lord Justice Scott Baker came out heavily against CAFCASS for not allowing the guardians a reasonable period to reply to the short consultation initiated. The subsequent exodus of distinguished guardians is the one thing that the service cannot allow.

The judge said:

''The children whom guardians represent are 'among the most vulnerable in society'.''

The judge emphasised that

''guardians must be both independent and be seen to be independent, have the authority to be able to make often unwelcome recommendations, and be able to withstand pressure from Local Authorities and other parties. Therefore the impending loss of vast numbers of experienced guardians was 'a serious position, which needs to be remedied quickly.' ''

He went on to say that

''the present dispute is entirely unhelpful to the Family Justice system.''

Those would be strong words in any High Court judgment. He said:

''The current position has been brought about by CAFCASS because of its conduct, and that of the Project Team before. It is greatly to be hoped that relations could be improved. They will have to be if the service is to fulfil its responsibility to children.''

The judge went on to say:

''CAFCASS has alienated the very people it needs, if it is to discharge the responsibilities that Parliament entrusted it with.''

He criticised CAFCASS

''among other things, for its poor communication skills, for delays in communicating its decisions to Guardians, and for ignoring his own request that negotiations take place to resolve this issue. The Court cannot tell CAFCASS how to run the service, however much it may fear for the future. Critical decisions on the nature of the service, and how it is funded, are political, and it is at this level that pressure must be brought to bear if the 'impending disaster' . . . is to be averted.''

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

Does the hon. Gentleman accept that, under the previous arrangement, difficulties with the quality control of some guardians ad litem were not properly managed and it was difficult to ensure that every guardian was producing the thorough quality of work required? One reason for a more managed and organised service was to deal with some of the previous problems. I am not suggesting that all guardians were of insufficient quality.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I thank the hon. Lady for her intervention. I agree that some guardians were failing, but alienating more experienced guardians and forcing them to jump out of the service will not help. I agree that problems did exist, as in any service: some delivered well and some fell short of the mark. If experienced guardians are alienated and treated with contempt by CAFCASS, it does a disservice to those doing a good job and, more importantly, to children.

Julian Brazier (Conservative, Canterbury)

The hon. Gentleman develops a powerful case, and describes a classic example of what happens in a powerful bureaucracy where the emphasis is not on improving quality, but on extending a power base by pushing out people over whom it has less control. This morning, when the hon. Gentleman had an important engagement outside the House, we alluded to possible problems in other powerful bureaucracies.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The hon. Gentleman is right. I am of the devolving rather than the centralising persuasion.

To answer the question of the hon. Member for Sheffield, Heeley (Ms Munn), another way of dealing with the problem would have been to ensure better training of those of who fall short. Management is necessary, but imposing a huge top-down structure is not the best way to achieve that, which is why I welcome the debate. I do not profess to know all the answers, but I have identified some of the problems and, more importantly, the High Court has also done so recently.

One has to ask how we are to view the fact that the new court advisory service is found to be acting unlawfully within months of its creation and alienating those with whom it is supposed to be working. We also have to ask to what extent CAFCASS is publicly accountable for its actions. What is to be made of it defending itself by arguing that it is not bound by the promises of its predecessor or by the statement by the Lord Chancellor in a written answer to the right hon. Member for South-West Surrey (Virginia Bottomley)?

What we have here is the possibility of a quango, which will suddenly run wild. It is unpardonable for a service to say that, regardless of what the Lord Chancellor's Department has said, it is not bound by that and that it is a free-standing body which will do exactly as it pleases. CAFCASS has run into trouble with the High Court within months of its inception.

The argument was that CAFCASS was a non-departmental public body—

Julian Brazier (Conservative, Canterbury)

I saw several hon. Members shaking their heads. Will the hon. Member confirm that it was actually part of the testimony by CAFCASS that it did not regard itself bound by clear pledges made by the Lord Chancellor's Department and, indeed, was openly breaking them?

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The hon. Gentleman has jumped ahead of me. I was getting to that point.

The hon. Gentleman is absolutely right. I am indebted to him for much of the information that I am relying on today. CAFCASS argued that, being a non-departmental public body, it was therefore independent of the Lord Chancellor's Department and the project team and, accordingly, was not bound by any statements made apparently on CAFCASS's behalf. It further argued that guardians should have known that and accordingly should have set no store by any of the comments or promises made by the Lord Chancellor's Department. The learned judge was very unimpressed by that argument and cited CAFCASS's own statements to guardians that the Lord Chancellor had the final say on the contracts to be offered to guardians.

It is obviously worrying to anyone who has concern for parliamentary democracy that a public body should take the view that the Lord Chancellor's promises to Members of Parliament on its behalf places no obligations on it. What, then, is the point of Members of Parliament writing to the Lord Chancellor and the Ministers concerned if bodies such as CAFCASS consider themselves unfettered by the response? I am sure that, in due course, the Parliamentary Secretary will wish to say a word or two about that.

I realise that I have dealt at length with this dispute. It does not fill me with any confidence, and I go back to where I started briefly in speaking to the amendment: the service must succeed if the Bill is to succeed. I know that the Parliamentary Secretary is most sincere in her calling and that she will do her best. What we need to do is ensure that there are plenty of good guardians available, that they will remain independent and that they will be given employment opportunities that befit their status. If that happens, there will be no problem recruiting good-quality staff for the future. If it does not happen, this legislation will cave in and we will all have wasted a great deal of time and, worse, lost a great opportunity.

Hilton Dawson (Labour, Lancaster and Wyre)

I share many of the concerns expressed by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). He clearly speaks with great knowledge, and from considerable experience. However, he has been a little negative, although I acknowledge the problems. I refer him to an early-day motion, which I submitted many weeks ago now on this subject—I would not be surprised if he had signed it.

The whole discussion about whether or not CAFCASS is responsible to the Lord Chancellor's Department is rendered somewhat academic by the way that my hon. Friend the Parliamentary Secretary has responded to the concerns of hon. Members on both sides of the House over CAFCASS. I have had several constructive meetings with her about those concerns.

The important thing is that the principle of what the Government set out in the Criminal Justice and Court Services Act 2000 for the future of a unified service, bringing together guardians ad litem, the court welfare service and the official solicitor, is absolutely right. This vital service, which offers representation, advice to courts, support to children and young people facing difficult situations in court and in their family lives, is of fundamental importance.

The new structure offers an opportunity for a well-managed service; it offers people opportunities for career progression through all levels of a service, which operates in different ways and in different contexts; and it offers an opportunity for excellent training and professional development. It must be the way forward for the sort of modernised service that we want to see, offering something important to vulnerable people.

CAFCASS has had a bad and difficult start. I doubt that anybody would deny that, but I hope that the situation has moved on from what it was, even those few weeks ago, and from the description outlined by the hon. Member for Meirionnydd Nant Conwy. CAFCASS has a positive future. The Government have not only attended to setting it up in the proper way through the Criminal Justice and Court Services Act 2000 but are clearly acting in the best interests of children when they give great attention to the difficulties that the service is experiencing and to the best way to make it work.

I am confident that the structure that we have, which is much better than the hybrid relationships that we have had in the past, will work well to the benefit of children and young people.

Tim Loughton (Conservative, East Worthing and Shoreham)

I was interested in the opening comments of the hon. Member for Lancaster and Wyre (Mr. Dawson). He described the contribution of the hon. Member for Meirionnydd Nant Conwy as a little negative, but the hon. Gentleman has done the Committee a great service because he has ingeniously tabled a useful amendment, which has given the Committee the opportunity to debate the problems with CAFCASS and to insert a common-sense means of ensuring that the House properly monitors its rehabilitation.

I was somewhat surprised when the hon. Member for Lancaster and Wyre described the hon. Member for Meirionnydd Nant Conwy as a little negative, not least because of his early-day motion 282—to which he modestly referred—which was tabled on 22 October and signed by hon. Members from all parties. His motion described CAFCASS as a service ''of crucial importance'', but the language then changed and the motion stated that this House

''is alarmed to observe that already 24 out of 52 managers of children's guardians have left the service, one of them with the statement that 'CAFCASS nationally is in a state dangerously close to paralysis'; is appalled that a judicial review on 14th September held that CAFCASS has acted unlawfully in withdrawing the option of self-employment for guardians; is extremely concerned that the centralisation of the service will undermine the ability of experienced professional to offer independent support and representation for vulnerable children; and calls on the Government to institute an urgent and fundamental review of the service, taking full account of the views of children and young people, organisations representing them and the dedicated people who work within it.''

If that is not more than a little negative, I do not know what is. I am not sure how the hon. Gentleman can accuse the hon. Member for Meirionnydd Nant Conwy of being negative.

However, I agree wholeheartedly with the other comments of the hon. Member for Lancaster and Wyre. CAFCASS is in a mess, but I will not go over the points made earlier.

Hilton Dawson (Labour, Lancaster and Wyre)

Does the hon. Gentleman accept that I said that the situation has moved on markedly from the day that that early-day motion was tabled and from what was described therein?

Tim Loughton (Conservative, East Worthing and Shoreham)

We remain to be convinced of that and await the Parliamentary Secretary's comments on what remarkable metamorphosis has taken place in the past six weeks, although she did not claim that in response to a question earlier this afternoon. Then, she admitted that the consultation that should have happened in the first place was now taking place, as many hon. Members would agree.

I spoke to members of a local social services department about the Bill and the problems of CAFCASS. They commented that CAFCASS had shown no sense of commitment in engaging with the guardians. They said also that the Government wanted an employed service and by doing so risked getting inexperienced people from local authorities to take over the positions as a lot of experienced people were in the process of heading out of the door. No doubt training can be provided to bring those people towards a position approaching the experience of their predecessors, but it seems a great loss and an event that could have been avoided with a little more sensitivity from the Lord Chancellor's Department. It is a double blow, because people from local authority social services departments who are desperately needed to deal with other parts of the Bill will now have to make up the shortfall in CAFCASS.

We received many submissions on the subject, and I will quote a letter from a children's guardian. She said:

''As a group of Guardians, we are concerned that we were not fully involved in the consultation process that preceded the inception of Cafcass. We were shocked when we were informed in July that we had two weeks to sign a contract of employment that would effectively mean that we could not undertake our duties to the Courts and children . . . It surely is an inauspicious start for an organisation set up to advise and support the Courts, that within its first few months, it ends up on the wrong side of the judicial process, found to have acted unlawfully in relation to practitioners, whose service it needs to meet its obligations to children. This is hardly likely to inspire confidence in CAFCASS and its practitioners, or in the Family Justice system as a whole. It may not be coincidental that the only member of the Judiciary on the CAFCASS board has now resigned his position . . . To what extent is CAFCASS publicly accountable for its actions? What is to be made of it defending itself by arguing that it is not bound by promises of its predecessor or by statements of the Lord Chancellor to Members of Parliament . . . What is worrying to anyone who has a concern about parliamentary democracy, is that a public body should take the view that the Lord Chancellor's promises to an MP on its behalf, places no obligations upon it''—

witness the written answer that was quoted earlier. The letter continues:

''What then is the point of MPs writing to the Lord Chancellor and the ministers concerned, if CAFCASS considers itself unfettered by the response?''

That is pretty strong stuff from someone who wanted to get on with her job of being a guardian of the court and, to all accounts, did it rather well. She and many of her colleagues are now exceedingly disillusioned.

In the New Law Journal this week—it may or may not be hot off the press—an article on CAFCASS by a contributor, Richard White, reinforces the depth of the problems. He says that the chief executive of CAFCASS has taken the rap for the chaos and has been suspended from her post, as the hon. Member for Meirionnydd Nant Conwy said earlier. The Times quoted a probation service official saying

''She can be quite formidable and has a reputation for leaving a bit of a trail of destruction behind her.''

The article says that there is a large budget deficit, that start-up costs were high and that CAFCASS had gone backwards since its inception six months ago. CAFCASS is not a happy ship and, as the hon. Gentleman said, if it is not working, large parts of the Bill are doomed to the same fate, which will not be good for any of the people whom we are discussing. It is vital that the Bill is well financed and that the mechanisms and the processes of the law can be carried out by the existing systems. In the case of CAFCASS, there is a serious question mark over whether that can be achieved.

The hon. Gentleman is not asking for CAFCASS to be disbanded and for the whole edifice to be reconstructed in another guise; he is not asking for heads to roll large scale, or for it to be reorganised. We take comfort from the changes, and from the consultation that is taking place at long last. We remain to be convinced that the metamorphosis has been quite so complete in the past six weeks, and we ask the Minister to respond to the points made by the hon. Member for Lancaster and Wyre. Amendment No. 136 simply puts a duty on the service to lay before Parliament an annual report on its performance, staffing and matters related to the functions that the Bill bestows upon it. That sounds sensible to me, even without CAFCASS's problems. Given those problems, it sounds particularly sensible.

This morning, I drew analogies with the Financial Services and Markets Act 2000, which set up a new, powerful organisation to regulate the large and important financial services industry, because adoption is a large and important subject. There are safeguards within the FSA, although many of us thought that it had been given too much power. A reporting mechanism to the Chancellor, to Parliament and to other bodies in the House was identified but we would like it to have been clearer. Clear reporting mechanisms have been identified. It seems strange that the Bill should not automatically place on the service that is essential to the adoption functions that we are trying to institute a requirement to report its progress or lack of progress and its record to date to Parliament each year.

The Bank of England Monetary Policy Committee reports annually, I believe, to the Treasury Select Committee. We set up reporting mechanisms for other important institutions, so it is only sensible that we should place a requirement on CAFCASS to lay an annual report before Parliament. It should not be provided unofficially to the Lord Chancellor's Department, with no publication requirement. The report should be no holds barred, with nothing taken out and nothing kept secret.

Surely it is right that we in this place should have the opportunity to debate such a report, especially if there are serious shortcomings in it. Producing an annual report and laying it before Parliament would give the House an opportunity to debate it if it saw fit to do so. Currently, CAFCASS is not required to report on the progress that it has made, certainly as regards its obligations and requirements in the Bill.

It would be wholly reasonable for CAFCASS to have to produce such a report; that would not be an enormous burden on the service. I am sure that the Lord Chancellor's Department requires it to report on progress in any case, so it is only right that the whole House should have the opportunity to judge whether that progress is sufficiently swift and substantial. An annual report to the House would be by far the best way of providing such an opportunity. On that basis, I very much hope that we can score a hat trick and that the Minister will agree that this reasonable amendment is needed.

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

Before the Parliamentary Secretary responds, I should point out that this has been a pretty wide-ranging debate. Only when the hon. Member for East Worthing and Shoreham spoke was the term ''annual report'' mentioned twice. No other Member mentioned such a report, although it was the subject of the amendment. I allowed that because the points made were relevant, but I inform the Parliamentary Secretary that when the clause stand part debate is called, I shall be listening carefully for repetition. I hope that hon. Members will assist me in that regard.

Rosie Winterton (Labour, Doncaster Central)

I am glad that you said that, Mr. Stevenson.

Obviously, this has been a wide-ranging debate on the amendment. I understand hon. Members' concerns about CAFCASS, but the principle of bringing services together is right. That goes back to points made by my hon. Friends the Members for Lancaster and Wyre and for Sheffield, Heeley. Consultation carried out before the formation of CAFCASS pointed firmly in that direction.

I think that my hon. Friend the Member for Sheffield, Heeley made a point about the advantages of being able to manage one service. We can bring together best practice, institute training that applies in all regions and bring in the benefits of information technology. Running a proper service that focuses on children is an important principle, in which most children's guardians, as well as many other professionals in the field, believe. We should accept that, and I am glad that the hon. Member for Meirionnydd Nant Conwy began by saying that he felt that that was probably the right way to go. It is important to ensure that the service works. It would be foolish of me to say that CAFCASS has had an easy first eight months. It has not, but we must remember that during that time it has brought together 114 separate local arrangements. At the same time, it has continued to provide existing services and to build up the new national service.

There is also no doubt that the continuing dispute with self-employed guardians has taken up much of the management's and board's time. It would be foolish not to admit that. The management and the board have some difficult decisions to make. I hope that the hon. Gentleman is aware that some difficulties have arisen because of the previous arrangements in which self-employed guardians could be employed by several different local authorities and work on an hourly basis.

There were strong indications that, when the service was brought together and there was, in effect, one employer, that would prove difficult. The hon. Member for Meirionnydd Nant Conwy is right in saying that that dispute, which to an extent is still unresolved, has dogged the first eight months. I hope that he will also recognise that, following the judicial review, the Lord Chancellor gave a statutory direction to CAFCASS to start consultation on the option of self-employment for guardians on 10 October.

That consultation will continue, and I may reassure the hon. Gentleman if I give some idea of how that will work. Self-employed guardians will have received a letter that invites their views on self-employment. CAFCASS has also accepted the proposals made by NAGALRO, which, as I am sure the hon. Gentleman knows, is the National Association of Guardians Ad Litem and Reporting Officers. NAGALRO proposes that an independent facilitator chair the consultation. That facilitator has been agreed, meetings have already taken place and more meetings have been diaried to ensure that the process keeps moving. The results of the consultation will be independently assessed. That has also been agreed with NAGALRO.

It must be restated that CAFCASS must reach an agreement that will meet Inland Revenue requirements, and it would be foolish to pretend otherwise. It is also important to stress that there are many employed guardians who would feel strongly if there were any suggestion that they had not acted independently or in the best interests of children because of their employment status. I urge hon. Members to bear that in mind when they consider whether children's guardians can continue to be independent if they are employed. We must remember that self-employed and other guardians were appointed by local authority panels. They may later have had to represent the children in situations of conflict with the local authority. In future, whether employed or self-employed, they will be given cases by a completely independent body. That is an important principle. As I said, employed guardians might have had strong feelings in the past about indications that they had not done their job properly; that should not happen in the future. Those committed people have worked in the best interests of children and will do so in the future, no matter what their employment status is.

I regularly meet the chairman of CAFCASS and receive weekly progress reports from him. I assure members of the Committee that we are determined to make the service work. We are convinced that it is the right answer and that it will be in the best interests of children. It is easy to look at past problems, but we want to look to the future. We are working closely with the board, and the management and board of CAFCASS are consulting the self-employed guardians. We must do all that we can to assist in developing a service that goes forward.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am grateful to the Parliamentary Secretary for her considered, useful and comprehensive reply. Bearing in mind that several non-departmental public bodies lay their reports before Parliament annually, what is the objection, if any, to that pattern in this case? Government and Opposition Members all want the same result.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman is hurrying me along to his amendment, but I am trying to set out the background and answer his earlier questions. I shall address the issue of the annual report but first wish to provide further assurances.

In addition to accountability through the board to the Lord Chancellor's Department, the magistrates courts service inspectorate carries out an independent inspection of CAFCASS. The hon. Gentleman may have heard about that on Second Reading, but I repeat it here for the record. The inspection includes visits to all parts of CAFCASS; this week, the inspectorate is visiting the headquarters. I hope that some of its findings will reassure the hon. Gentleman that services are generally being delivered. The preliminary report of the inspectorate has said that, in visits made so far, CAFCASS has generally continued to deliver at least the same quantity and quality of services to children, families and courts as were provided by the previous services before CAFCASS was established in April 2001.

I will not pretend that the report did not draw attention to the difficulties that occurred as a result of the judicial review. We all recognise that the review caused problems, but it is important for us to have the reassurance that, due to the professionalism and dedication of those who work in CAFCASS, service delivery has generally been of at least the same standard as previously.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

When did MCSI first become involved?

Rosie Winterton (Labour, Doncaster Central)

MCSI was involved from the very beginning as part of its duties under the Criminal Justice and Court Services Act 2000.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

But how can MSCI say that the service is as good as it used to be if it did not exist then?

Rosie Winterton (Labour, Doncaster Central)

Because of the way the inspectorate carries out its duties, it will have regard to the relationship CAFCASS has with local authorities. Any complaints that the service was of a lesser standard would be drawn to the inspectorate's attention. One of the difficulties in monitoring some cases—unallocated work, for example—is that previously there was no check, and no figures on the previous position are available centrally, because some 114 different services were brought together.

I hope that the hon. Gentleman is reassured by the fact that, as well as the annual report, there is an independent inspection. Those inspectors have right of entry to CAFCASS premises, and the right to inspect any CAFCASS documents. The Lord Chancellor can also direct the MCSI to inspect specific issues or functions of CAFCASS. It may provide the hon. Gentleman with even more reassurance to know that statute requires the chief inspector to make an annual report to the Lord Chancellor, which must be laid before Parliament, so in a sense an independent inspectorate has already laid a report before Parliament.

On the amendment and the idea of submitting a separate annual report to Parliament on the exercise of the functions of adoptions, I am afraid that I shall have to disappoint the hon. Gentleman. His amendment is not necessary because paragraph (12) of schedule 2 to the Criminal Justice and Court Services Act 2000 states:

''The Service must make a report to the Lord Chancellor in respect of each financial year on the performance of its functions.''

The Lord Chancellor may give directions on

''the information to be given in the report and the form in which it is to be given, and . . . the time by which the report is to be given.''

He must

''lay a copy of the report before each House of Parliament''

and

''arrange for the report to be published in a manner he considers appropriate.''

That provides the opportunity for Parliament to consider how CAFCASS has exercised all of its functions.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister is stating material evidence in response to an amendment that was moved about 40 minutes ago. She said that the report would be laid in a manner that the Lord Chancellor deemed appropriate, which opens up different avenues of what it will look like. Will she reassure the Committee about the report's contents and thoroughness on the adoption procedures in the Bill, which is the point of the amendment?

Rosie Winterton (Labour, Doncaster Central)

Yes.

Tim Loughton (Conservative, East Worthing and Shoreham)

Good.

Rosie Winterton (Labour, Doncaster Central)

I thought that the hon. Gentleman might ask that.

I should finish my previous point. The report will provide an opportunity for Parliament to consider how CAFCASS exercised all of its functions in supporting children, and not only those functions relating to adoption. The report will cover not only CAFCASS's activities, but those of any corporate bodies under its control, and will be submitted by 30 June, following the end of the financial year. Specifically, it will review CAFCASS's performance in the preceding financial year and provide appropriate comparable outturns for previous years. It will report on how CAFCASS has exercised its functions and met its duties and objectives as set out in statute, the report and the corporate plan. It will cover also any other matter specified by the Lord Chancellor. I hope that that reassures the hon. Gentleman, and I refer hon. Members to the framework document, which contains all the details. If they find it useful, I am happy to let them have a copy.

Section 17 of the Criminal Justice and Court Services Act 2000 provides, as I said earlier, for an independent inspection by the magistrates court service. As a result, the Government believe that proper legislative measures have been taken to ensure that CAFCASS is accountable to Parliament and the Government. I hope that the hon. Gentleman will accept my argument that the amendment is superfluous because an annual report is already laid before Parliament. I hope that with those reassurances, he will feel able to withdraw the amendments.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

That is the longest time that I have heard a Minister take to say the word ''otiose''. I am grateful for the care with which the Parliamentary Secretary has considered the subject. It is important, and she has considered it as such. I am greatly reassured, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Before we turn to the clause stand part debate, I repeat my request; no repetition, please.

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

Tim Loughton (Conservative, East Worthing and Shoreham)

I shall try not to be repetitious.

I seek to raise a couple of outstanding queries. In particular, I wish to ask about amendment No. 151, which was not selected, on a technicality. With regard to that, I want to put a question to the Minister, rather than re-table the amendment. In the final part of subsection (2)(b), the omission of a reference to subsection (1)(c) alongside the references to subsections (1)(a) and (1)(b), suggests that it is thought that a single person could not fulfil all three of the functions that are set out in those paragraphs. The missing paragraph—subsection (1)(c)—refers to the performance of ''other prescribed duties.'' I fail to understand why someone should not be able to carry out that function, as well as the other two. I am sure that that is not intended, because circumstances might arise in which the court will want the same person to carry out all three of those functions.

Leaving it to delegated legislation to spell out of the assistance that the court may require the officer of the service to give, as set out in subsection (4), also does nothing to update the role of such a person; nor does it guarantee any tie-in between the type of reports that need to be written in cases relating to the Children's Act 1989, and those required for adoption. That merely perpetuates the existing system, without the benefit of a proper title for the person concerned.

Those two queries, which relate to the latter part of the clause, do not repeat in any way what we have already heard from the Minister, and I wish her to respond to them.

Rosie Winterton (Labour, Doncaster Central)

The debate on the clause has been extremely useful. It has enabled many Committee members to put on record their support for the principle of CAFCASS. It has also given encouragement to the people who work in the service that hon. Members are trying not to undermine but to support what they are doing.

The hon. Gentleman asked who is to be responsible for what, and I might be able to give him some encouragement, were he to listen to me. We agree that there might be room for clarification with regard to the questions that he raised. We will address the questions to find out whether it is necessary to come back with any further clarification, or even with further amendments, should that be required.

Tim Loughton (Conservative, East Worthing and Shoreham)

I have now scored my hat-trick without having to table my questions in the form of amendments, which is particularly gratifying, and without the Minister feeling compelled to use the terms ''diaried'' or ''anonymised'', as she has done in previous responses. I am grateful to her. My questions referred to genuine points raised by lawyers, and I look forward to her response as to whether the clause needs to be changed.

Question put and agreed to.

Clause 97 ordered to stand part of the Bill.

Clause 98 - Right of officers of the service to have

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 135, in page 52, line 15, at end insert

'or any other records held by that agency relating to the child which he may regard as relevant to the case.'.

We are trying to ascertain a specific point with this probing amendment, which would give officers of the service full access to the records that they require. The clause could be interpreted as giving those officers the right to look only at records concerning the child after the moment when twin-track planning for adoption had started and not the right to look at all the records concerning the child when care proceedings were being contemplated or had been launched. If an officer of the service were not involved in the earlier care proceedings, there may be a real difficulty in obtaining all the records necessary to compile a full report. That is the basis of the amendment, to which the Minister can no doubt respond swiftly.

Rosie Winterton (Labour, Doncaster Central)

As the hon. Gentleman said, clause 98 clarifies the powers of a CAFCASS officer to examine and take copies of an adoption agency's records relating to a proposed or actual application in respect of the child concerned. Obviously, it is essential to ensure that CAFCASS officers have all the relevant information about a child's circumstances in reporting to the court. Subsections (2) and (3) allow for the admissibility in evidence of a copy of any record that a CAFCASS officer is entitled to examine under the clause in any report to court in the particular proceedings or in evidence in the context of those proceedings.

I am afraid that I may have to disappoint the hon. Gentleman; the amendment is not necessary, because current provisions already provide for what he proposes. Schedule 2 to the Adoption Rules 1984 prescribes what an adoption agency or local authority must cover in its report. That includes 16 points of information, such as the needs of the child, the suitability of the parents and any historical information relevant to the child's needs. A CAFCASS officer can ask the court for leave to inspect other relevant documents under rule 10.20. That may include prior court proceedings involving the child. Regulation 15 of the Adoption Agencies Regulations 1983 also obliges adoption agencies to disclose information from their records to reporting officers and children's guardians.

As Opposition Members will appreciate, one aim of the Bill is to ensure that there is no undue delay in proceedings. It is important that there are safeguards to ensure access to other documents, but it is also important for CAFCASS officers to be able to focus on information that is relevant to the adoption proceedings only.

Henry Bellingham (Conservative, North West Norfolk)

Is the hon. Lady saying that as a result of the clause some documents may not be accessible? If so, that is a concern.

Rosie Winterton (Labour, Doncaster Central)

No. I am saying that if a CAFCASS officer believes that there are other relevant documents, he or she can apply to see them. A safeguard is built in. With that in mind, I hope that the hon. Member for East Worthing and Shoreham will agree that the amendment is not necessary, as its purpose is covered by other provisions.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Parliamentary Secretary for that. Obviously, I was on too much of a roll, and that has been brought to an abrupt halt. I completely overlooked the reference to schedule 2 of the Adoption Rules 1984 in configuring the amendment, let alone the 16 points that the hon. Lady raised. On that basis, I beg to ask leave to withdraw the amendment, although I hope that I might be able to catch your eye in the clause stand part debate, Mr. Stevenson.

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

That remains to be seen.

Amendment, by leave, withdrawn.

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

Tim Loughton rose—

Mr. Djanogly rose—

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

I call Mr. Djanogly.

Jonathan Djanogly (Conservative, Huntingdon)

Thank you, Mr. Stevenson. I was about to give way to my hon. Friend, who is much more senior.

The explanatory notes for clause 98 indicate that the powers are an extension of existing legislation. It is important that we consider the more general implications of the powers. We have had an interesting debate on the last few clauses, and the points that I wish to make arise from implications in earlier contributions.

Do the rules regulating the officers of the service, which are set out in clause 97(1), deal with the confidentiality of the information that they will receive pursuant to clause 98? The question of conflict of interest came up in discussion of an earlier clause. Confidentiality is an important issue in so far as officers who have confidential information and advise the child may also advise the birth parents about giving consent, for example. Have we stipulated that they can use the information for the purposes of advising the child only, and not the birth parent? What would happen if they released information to the birth parents? Does the Bill provide for a penalty if that were done? Clearly, circumstances could be touchy, for want of better words.

Furthermore, if an officer of the service receives full information for a placement or a hearing, what information would the other parties to the hearing be entitled to receive? Presumably, it would not be the same level of information, although that raises the question of the implications in respect of the Human Rights Act 1998, where disequality of the receipt of information—[Hon. Members: ''Disequality?''] I am sorry; I mean inequality in the provision of information may give rights to one side—the birth parents—to have a claim, perhaps under the Human Rights Act. It may be preferable for the proposal to set out not only what the officers of service are entitled to receive, but also what other people are entitled to receive so that it can be seen that that has been considered. There are a few technical points that should at least be considered in the context of the clause.

Henry Bellingham (Conservative, North West Norfolk)

Will the Minister clarify one or two points? Clause 98(1) on page 52, in line 12 states ''at all reasonable times''. When might the times not be reasonable?

Subsection (2) is about records, a matter that we shall discuss in another clause, but which I want to flag up now. I want to ask the Minister if there is an obligation on agencies to keep all records, and how long the obligation lasts. Will the agencies have to keep the records in perpetuity? What will happen if, for example, the agency is taken over or goes out of business, or if the people running it retire? What obligations are there on the successor agency? Perhaps the Minister will let me know.

Subsection (2)(a) refers to the proceedings in question and subsection (2)(b) to the evidence in the proceedings. What sorts of proceedings are referred to? Perhaps the Minister will outline the categories or types of proceedings.

Clause 98(3) states:

''which would otherwise prevent the record in question being admissible in evidence.''

What circumstances are being referred to? I hope that the Minister will be able to enlighten me on those points. My hon. Friend the Member for East Worthing and Shoreham may want to make a few remarks.

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

That may be the case, but it depends on whether time permits. The Minister had some difficulty hearing what was just said. I hope that she caught every point that the hon. Gentleman made.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am glad to have caught your eye, Mr. Stevenson. I have a couple of queries about the clause—especially about subsection (2)—that were not covered by our earlier amendment. Subsection (2) appears to require the officer of the service to take a copy of adoption agency records, usually for social services files, in order to rely on such records as evidence. For all practical purposes, that is likely to lead to a mountain of additional paper, since the old guardian ad litem's report would usually be a concise distillation of a vast mass of paper contained in files and would be challenged only in a few specific areas. On crucial matters, original records will need to be consulted in any event, and to require the officer of the service to take copies on the off chance that they might need to be produced in proceedings would be profoundly wasteful, using a large number of trees that could otherwise be saved.

That practical concern brings me to the use of electronic evidence and records. In refuting my amendment to subsection (1), the Parliamentary Secretary referred to the adoption laws of 1984, which are still applied many years later. However, in 1984, the use of e-mail and electronic records was comparatively sparse. Is the Parliamentary Secretary satisfied that computer records are fully covered by the descriptions of evidence in the clauses? If not, the evidence will be full of gaps. Records are increasingly likely to be committed to electronic form in any case. Doubtless the Department is aware of the problem, but we would like to be reassured that it will not lead to problems in court.

Rosie Winterton (Labour, Doncaster Central)

This has been a fascinating clause stand part debate, in which many detailed points have emerged.

I should like to start with the comments of hon. Member for North-West Norfolk (Mr. Bellingham), who was not present this morning. Herewith is the lesson of the day on how long agency records can be kept: 75 years. What would happen if an adoption agency became defunct? Regulation 14 states that records must be kept for 75 years. Under further measures, records must be transferred to another agency or a local authority. Information about where those records have been transferred and where they are being maintained must be passed on; the same provision as in clause 53(3) and clause 9.

We debated what constitutes reasonable time to examine and take copies of records. The provision is intended to ensure that unreasonable demands are not made on local authorities or adoption agencies in pursuit of their duties. If my interpretation is incorrect, I shall rectify it later. Current adoption rules provide that all information is confidential. The relevant officers of CAFCASS are likely to be a children's guardian or a reporting officer; two different hats that can be worn. One CAFCASS officer can carry out the role providing that there is no conflict of interest.

Provisions on the copying of records are permissive; it is allowed rather than required. That touches on the earlier point, mentioned by the hon. Member for East Worthing and Shoreham, about the extent to which people would have access to everything.

We have not ruled out the possibility of storing documents electronically, but it is clear that adoption cases are highly sensitive and confidential, so we need to be satisfied that the chosen method is safe and secure. As part of the Government's modernisation of public services, my Department is reviewing all primary and secondary legislation relating to the court process in order to gauge the potential for greater use of e-mail and other electronic means of communication. I should again stress that we must first be completely satisfied about the question of confidentiality in these very sensitive proceedings.

I hope that I have dealt with most of the points that were raised, and I commend the clause to the Committee.

Question put and agreed to.

Clause 98 ordered to stand part of the Bill.

Clause 99 - Evidence of consent

Tim Loughton (Conservative, East Worthing and Shoreham)

Although we have tabled no formal amendments to the clause, I should like to comment briefly on it and ask one small question of the Minister. Subsection (2) allows for the possibility of proving to the contrary in the witnessing of documents. It seems curious that subsection (1) does not make similar provision in relation to the far more serious question of whether a person has given consent to such proceedings. Will the Minister deal with that apparent anomaly?

Rosie Winterton (Labour, Doncaster Central)

Perhaps I should first give some background to the clause. It provides that a document signifying consent, which, according to part I of the Bill, must be witnessed in accordance with rules, is admissible as evidence without further proof of the signature of the person who gave such consent. It also provides that, unless proved to the contrary, a document signifying any witnessed consent is presumed to be so witnessed, and to have been executed on the date and at the place specified in the document.

The provision is intended to ensure that people are not asked to attend court and give evidence about their consent where it has been provided in the standard form. The hon. Member for East Worthing and Shoreham will recognise that the provision is designed to minimise any distress to birth parents that attending court might cause. The provision is fairly standard and is in fact included in the Adoption Act 1976. According to the provision, people will not have to offer further proof of the document in question. However, I can perhaps reassure the hon. Gentleman by pointing out that the provision will not prevent such a person from attending court to say that they did not sign. It merely states that it is acceptable for such a person not to attend court and not to provide further proof of signature.

I hope that I have dealt with the hon. Gentleman's points, and I commend the clause to the Committee.

Question put and agreed to.

Clause 99 ordered to stand part of the Bill.

Clause 104 - Avoiding delay

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 141, in page 54, line 8, leave out from '(2))—' to end of line 17 and insert—

'(a) draw up a timetable with a view to disposing of the application without delay; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

(2) Rules of court may—

(a) specify periods within which specified steps must be taken in relation to such proceedings; and

(b) make other provision with respect to such proceedings for the purpose of ensuring, so far as is reasonably practicable, that they are disposed of without delay.'.

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

With this it will be convenient to discuss amendments Nos. 152, in page 54, line 10, leave out 'without delay' and insert 'within 28 days'.

No. 153, in page 54, line 13, leave out 'may'.

No. 154, in page 54, line 14, leave out from '(a)' to 'and' in line 15 and insert

'will state that any prescribed steps which must be taken in relation to such proceedings must commence within 60 days'.

No. 155, in page 54, line 16, after '(b)', insert 'may'.

Tim Loughton (Conservative, East Worthing and Shoreham)

The amendments relate to a very important part of the Bill dealing with the whole question of avoiding delay; a term that has featured large in our deliberations since we debated clause 1. Together with the paramount considerations for the welfare of the child, the question of delay is an important consideration on which the whole Bill is based, and we wholly concur with that. It is imperative that we define delay as closely as possible, giving clear guidance to practitioners as to what constitutes delay. ''Without delay'' is a very open-ended term that can be interpreted in a whole host of different ways by legal practitioners and other professionals dealing with adoption.

On amendment No. 141, members of the Committee will recall that we have been concerned throughout our proceedings to reduce the possibility of anomalies between the Bill and the Children Act 1989. The consequence of not doing so is that lawyers in court or parents arguing against an adoption agency will be able to pick and choose between the welfare checklist in the 1989 Act, as opposed to the rather different welfare checklist in the Bill. That can only delay proceedings and not provide for a clear resolution of the future care of the child. The amendment would redraft subsections (1) and (2), using exactly the same language as section 32 of the Children Act. I know that the Minister will say that the Act does not deal specifically with adoption, but it deals with very similar considerations regarding timetables and delay.

Amendment No. 152 addresses the need to put some closer definitions in the Bill. The clause refers merely to drawing up a timetable ''without delay'', which can be open to all sorts of interpretations. The amendment would replace that with ''within 28 days''. We are pleased that the Government appreciate the need for a timetable so that everybody who is party to the adoption knows exactly the time frame in which they are working. If that is not adhered to, due complaint and representations can be made. The amendment would require that the timetable should be drawn up within 28 days.

Amendment No. 153, which is contingent on amendment No. 155, would omit the word ''may'', which is a word that we never like to see in Bills in any case. The clause says that rules may

''prescribe periods in which prescribed steps must be taken in relation to such proceedings''

and then says that rules ''may'' make other provisions with respect to such proceedings, those two are a pair.

In amendment No. 154 we have talked about timetables for when various steps should take place along the adoption track. As the Bill stands, there is no provision for when that timetable should start. We are saying that the clock should start ticking within 60 days of the start of proceedings. These are very closely linked, if slightly confusing, amendments—the bottom line of which is to give some more detailed substance to what delay means and how we can avoid it.

I mentioned that the clause mirrors section 32 of the Children Act 1989, but not exactly; that is what we are trying to rectify. That section provided that rules could be made specifying time periods within which steps in care proceedings must be commenced. No rules have been made under that provision, so the courts—while paying lip service to the principle of reducing delay—have not been under specific time constraints. There is therefore no reason to suppose that any rules will be made under clause 104 either.

Rather quaintly, explanatory note 222, on page 53 of the explanatory notes fails to appreciate this point altogether. It rather glibly states:

''Clause 104 is a new provision similar to section 11 of the Children Act 1989 that is intended to avoid delay in the court process. It imposes an obligation on the court, where it is dealing with any matter where the issue of whether a placement or adoption order should be made may arise, to draw up a timetable and give directions that are necessary to ensure that that timetable is adhered to.''

One can only say that clause 104, as drafted, does nothing of the sort. Without specific time limits, the concept of purposeful delay would continue to hold sway in the courts and care and adoption proceedings would continue to drag on for years, as they do now.

What is needed is a specific provision, giving specific time limits for various steps. We have attempted to provide that—quite crudely, I admit—and have drawn up the figures as they appear reasonable on the face of it. However, we are entirely amenable to the Minister's saying that she agrees with us in principle, but using her own definitions and time scale in the Bill.

We are trying to avoid the problem, which happens far too often, of allowing children, particular older children, to get lost in the care system. We have seen that the longer it takes to relocate the child into a new settled, stable and caring family, the more likely the damage on that child, particularly at a younger age. The amendments are a perfectly reasonable attempt to avoid the process being strung out even more by expensive lawyers arguing the toss over what constitutes delay. Certainly the experience of the Children Act 1989 has shown that arguing over that definition has wasted a lot of time. The timetables have not been properly instituted. We are attempting to remedy the problems of that Act which we do not want to be replicated in the Bill.

Henry Bellingham (Conservative, North West Norfolk)

Thank you, Mr. Stevenson, for allowing me to comment briefly on the amendments.

My hon. Friend the Member for East Worthing and Shoreham said that the amendments were a crude attempt to improve things. He does himself down; the amendments have been very well drafted and are well worthy of acceptance. I certainly endorse what he says about trying to avoid delay. That is the essence of the Bill. I draw hon. Members' attention to some of the evidence that has been submitted to the Committee. For example, the memorandum from—ASIST—Adoption Support in Society Today is interesting and well worth reading. It states in column 372 of the other memorandums and letters:

''One of ASIST's main concerns centres on clauses in the Bill which could hinder the implementation of its aims. It states in the introduction to the Bill 'Any delay is likely to prejudice the child's welfare' ''.{**W4**}

It refers specifically to the clause, and whether it could be improved.

In other evidence, the Law Society says that it is crucial to avoid delay. It notes clauses 1(3) and 104, which cover that point, and adds:

''We would be particularly interested to contribute to consultation on case management rules.''{**W4**}

I hope that the Minister takes that into account and examines case management rules.

I agree with my hon. Friend that the clause needs more teeth and more focus; it must be more precise. Otherwise, we could end up in a lawyers' paradise. If I may say so without sounding patronising, the Minister answered our technical questions very well. In the Committee's spirit of good will, I hope that she will conclude that our amendments have more substance, more bite, and are better worded than the clause. If she will not accept them today, will she reconsider the clause and return to it on Report, or in the other place?

Jonathan Djanogly (Conservative, Huntingdon)

I concur with the opinions of my hon. Friends the Members for East Worthing and Shoreham and for North-West Norfolk. The clause is imprecisely drafted. The scope for a lawyer to argue about what it means is immense, and tightening it could save much time in the courts. I support the periods set out in the amendments.

I have some further concerns. For the clause to kick into play, proceedings for an adoption order or placement order must take place. In the early stages, a child may have been on the adoption register for about six months. If that child is mature and wants to be adopted, he may not like the fact that he has been left on the register. He may feel that the local authority is not doing what it should to ensure his adoption. If an authority has not done what it should, how can children ensure that a judge insists on drawing up a timetable and instructing the authority to do x or y? Such provision seems to be missing. It may appear in a different guise elsewhere in the Bill. Will the Minister elaborate?

Similarly, it is correct to mention the position of prospective adoptive parents. If they have been approved, they may feel that they have not been given access to a child whom they believe to be suitable, or that the pre-placement order process is not being pursued speedily. What remedies would they have to speed up the process?

These are more general issues around the specifics of the clause. The way in which the clause deals with the orders when people are already in court needs to be tightened up, but needs to be expanded to deal with the situation in which people want to go to court but cannot get off the starting blocks.

Rosie Winterton (Labour, Doncaster Central)

I echo the comments of Opposition Members that the clause is important. A major aim of the Bill is to reduce delay, and the court process plays an important part in that. I assure the hon. Member for North-West Norfolk that I will consider the Law Society's comments on case management rules.

We want to improve the court process and reduce unnecessary delays in adoption. That is why we specifically included in clause 1(3) an obligation on courts and adoption agencies to bear in mind that, in general, any delay in reaching a decision about the adoption of a child is likely to prejudice the child's welfare. If a court needs to consider a placement or adoption order, it will be obliged to draw up a timetable and give any necessary directions to ensure that it is adhered to. The clause will ensure that the courts maintain a tighter control on adoption and placement orders and do not allow drift, to which hon. Members have referred. The Bill will also give a power for rules of court to set out the time scales in which certain processes should take place.

Amendment No. 141 would require the court to draw up a timetable to dispose of any application in which an adoption or placement order needs to be made without delay, which is where Opposition Members may want to speed up the process. I appreciate the spirit of the amendments and can see why hon. Members are concerned to ensure that the court process lives up to the expectations in other clauses that it will be speedy. However, there are problems with the amendments. I will run through them and hope that hon. Members will accept that.

First, there is a technical problem. Amendment No. 141 refers in proposed subsection (1)(a) to the requirement of a court to draw up a timetable for the disposing of an application, yet no such application is referred to in subsection (1). In addition, the amendment is more limited in its effect than the Bill as currently drafted. For example, the Bill requires the court to fix a timetable in any proceedings in which a question may arise as to whether a placement or adoption order may be made or in any other question with respect to such an order. That means that a timetable must be set not only in relation to disposing of an application, but in relation to all the interlocutory stages that lead up to a final hearing. On that basis, the Bill is stricter on the steps that need to be taken to minimise delay.

Amendment No. 152 would require the court to draw up a timetable in any proceedings in which a placement or adoption order may be made within 28 days. The drafting is rather unclear and it could be read as requiring the court to determine whether an adoption or placement order should be made within 28 days. That is impractical.

Amendment Nos. 153 and 154 require court rules to prescribe periods within which prescribed steps must be taken. The Bill states that court rules may prescribe such periods. Amendment No. 154 requires prescribed steps to be taken within 60 days, and the current adoption rules usually require steps to be taken as soon as is practical. Amendment No. 155 is consequential, compensating for the proposed deletion of ''may'' in amendment No. 153, so that courts may make other provisions in addition to prescribing time scales.

The problem with the amendments is that they highlight the danger of trying to take a prescriptive approach to tackling delay through primary legislation. We intend to consider the appropriate prescribed periods when we come to the preparation of the new rules. We need to look very carefully at what lessons may be learned from the Children Act and the family proceedings rules.

Henry Bellingham (Conservative, North West Norfolk)

On the point that my hon. Friend the Member for East Worthing and Shoreham made about the phraseology ''is intended'', will it be possible, once the Minister has consulted on the terms of the Children Act and looked again at the very points that she has just mentioned, to change the explanatory notes? I would be much happier if the notes said ''will avoid delay'' rather than ''is intended'', which is a little vague.

Rosie Winterton (Labour, Doncaster Central)

The difficulty is that it is important to ensure that, although we want to avoid delay, we must not do so at the expense of the child. It might be pushing it too far to say ''will'' because every case is different. That is one problem with such amendments, as I am sure the hon. Gentleman knows given his eight years' experience at the Bar working in family law. It is important not to be too prescriptive.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

It is helpful to reflect on the way in which the Children Act 1989 unfolded. It gave an impetus to speed matters up by rules of court. The Parliamentary Secretary has responded to the hon. Member for North-West Norfolk about the Law Society, but will she take note of what the Family Law Bar Association and the Solicitors Family Law Association say about the rules? That is not to cut the lawyers in, but to ensure that the provisions are based on sound experience of the Children Act 1989.

Rosie Winterton (Labour, Doncaster Central)

Of course. I understand hon. Members' reservations about leaving matters to court rules or regulations, but there are good reasons for not deciding here how those rules should be drawn up. We want to build on the experience of others.

Julian Brazier (Conservative, Canterbury)

To reinforce the point of the hon. Member for Meirionnydd Nant Conwy, when considering the lengthy Family Law Bill, I consistently noticed a contrast between the evidence of the Solicitors Family Law Association, which seemed to reflect the best interest of the families, and that of the Law Society, which seemed to be based on maximisation of lawyers' earnings.

Rosie Winterton (Labour, Doncaster Central)

I had better leave hon. Members to fight that one out.

Amendment No. 152 would require a timetable to be set within 28 days. In some cases, it would be set more quickly, so the amendment would not necessarily reduce delay. We must recognise that a timetable might not best further the welfare of individual children: it might need to be amended to take account of a change in the position on consent, for example. The amendment could cause difficulties in that regard. I am also concerned that it might require the court to determine whether an adoption or placement order should be made within 28 days, which is rather impractical.

The court must have enough time to ensure that it has all the requisite information to determine that the proposed course is in the best interests of the child. That includes the preparation of a schedule 2 report, which details the background to the adoption, the needs of the child and the circumstances of prospective adopters. The general thrust is rightly to reduce delay as much as possible, but we should not force proceedings to go too fast, which might not be in the best interests of the child.

Amendment No. 154, which would require prescribed steps to be commenced within 60 days, raises a similar problem. It proposes a slower process than current practice. Family proceedings rules allow respondents only 14 days to respond to an application. Requiring a step to be commenced will not necessarily reduce delay if the step is not completed within a reasonable time.

Although we want to reduce delays in court processes and we understand the spirit of the amendments, it is better to set out timetables after full consultation. We should also build on the experience of other jurisdictions when introducing rules. I hope that I have given Opposition Members some reassurance about the Government's intentions, and that the hon. Member for East Worthing and Shoreham will withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am most grateful to the Minister for dealing at length with our probing amendments, which sought to define delay. She said that she appreciated the spirit of them and is mindful of the need to avoid delay; no doubt that approach would apply to the regulations and directions of her Department. I believe that we agree on what we are trying to achieve. I anticipated that she would draw attention to flaws in our proposals and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Julian Brazier (Conservative, Canterbury)

I beg to move amendment No. 137, in page 54, line 17, at end add—

'(3) It shall be the duty of the Lord Chancellor's Department to monitor the proceedings referred to in subsection (1), to keep statistical information on them and to publish a summary of them annually.'.

The amendment is much more modest than previous ones. It is designed to achieve a similar objective but over a longer time. I should declare a former interest, in that I used to work as a statistician in an economic research department.

The Department has gathered many statistics about adoption and children's services. That is thoroughly welcome; it should not be timid about doing so. The testimony from the lawyers who assisted us with the amendments is that many delays in the court system are outside the direct control of the court. There are two main sources of delay: matters in the courtroom that are under the control of the judge or over which he has influence; and other activities, such as the making of reports and assessments, which happen outside the courtroom and over which the judge has little direct control or influence. I do not wish to take a view either way.

The argument for this modest little amendment is that collection of the statistics that I propose would produce three benefits. We would be able to test whether the lawyers are right that the bulk of the delay is, in fact, on the periphery of the court rather than in it; that would be interesting. Incidentally, to correct the record, I was supporting the remarks of the hon. Member for Meirionnydd Nant Conwy on consulting lawyers, not challenging them.

Rosie Winterton (Labour, Doncaster Central)

When I said that I would leave hon. Members to fight it out, I meant the hon. Gentleman and the hon. Member for North-West Norfolk, who had been advocating the Law Society's case.

Julian Brazier (Conservative, Canterbury)

The Minister has caught me out. I assure my hon. Friend that I did not mean in any way to detract from his remarks. I was preoccupied with preparing for the debate.

The first benefit would be an indication of the overall progress towards the absolutely critical objective of speeding up the court process. Secondly, the statistics would enable us, in the medium term, to determine whether the bulk of the delays are occurring in the court or around the periphery of it, as many lawyers allege. Thirdly, as a pattern developed, we would be able to determine to what extent courtroom delays occurred under particular judges. It would be odious to cite names; however, some former family lawyers have their own private league tables. In parallel, the patterns would show which of the various delays outside the court could be associated with particular local authorities. I shall sit down now to enable the Minister to reply in the time available.

Rosie Winterton (Labour, Doncaster Central)

I am afraid that we shall resist the amendment, but I want to say two things before we finish. As the hon. Gentleman said, judicial statistics are kept but at present they record only the number of adoption application orders made. The pilot of specialist centres will enable us to record the time taken in adoption cases, including the length needed for specific tasks, the completion of a CAFCASS officer's report, or a schedule 2 report, for example, although I accept that they relate only to county court proceedings—

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

Question accordingly negatived.

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

Clauses 104 and 105 ordered to stand part of the Bill.

Further consideration adjourned.—[Angela Smith.]

Adjourned accordingly at Seven o'clock till Thursday 6 December at half-past Nine o'clock.