Adoption and Children Bill

Public Bill Committee, 15 January 2002.

Special Standing Committee

Adoption and Children Bill

Jim Fitzpatrick (Labour, Poplar and Canning Town)

On a point of order, Mrs. Roe. I would like the Programming Sub-Committee to have a brief meeting five minutes after the adjournment of this morning's sitting, so that we can discuss Report stage. It is a matter of which I have apprised the Opposition parties, and I hope that it meets with your approval.

Marion Roe (Conservative, Broxbourne)

The request has been made that the Programming Sub-Committee meet after this morning's sitting. I am content that such a meeting should be held, and that it should begin five minutes after the questions are put at 1 pm, so that the Room can be prepared for the private meeting.Clause 88 Restriction on arranging adoptions, etc.

Clause 88 - Restriction on arranging adoptions, etc.

Tim Loughton (Conservative, East Worthing and Shoreham)

Welcome back, Mrs. Roe, to the final furlong of this lengthy Bill. It will be a great shame, after this week, not to have our Tuesday and Thursday sittings to look forward to.

The clauses on restrictions to be debated this morning contain little that is contentious, so I hope that we can make progress and move on to the amendments and new clauses, which are of greater interest. However, I hope that the Minister will elaborate on the extent of the restrictions on arranging adoptions. In particular, I cannot see how the provision applies to those accused of trying to arrange adoptions over the internet; given recent cases, I want to be sure that all loopholes are closed. The matter might be covered in another of the clauses that we are about to debate, but I hope that the Minister will assure the Committee that all the loopholes have been closed and that people who are not authorised to do so will be prevented from arranging adoptions.

Jacqui Smith (Labour, Redditch)

I will say a few words about the extent of clause 88, but first I shall answer the question asked by the hon. Member for East Worthing and Shoreham (Tim Loughton) about internet adoptions. Adoption advertisements on the internet are covered by clause 113, which we shall debate later this morning.

Clause 88 deals with restrictions on arranging adoptions. It restates, with some amendments, section 11 of the Adoption Act 1976. I am sure that all hon. Members agree that it is essential that the welfare and needs of children are safeguarded: the protection and care of vulnerable children is our first priority. There are those who are prepared to engage in buying or selling children for adoption, but even if

money does not change hands, no one should be permitted to arrange private adoptions. The welfare of the child must be paramount, and only those who are properly qualified and trained should arrange adoptions.

I shall briefly list the provisions of the clause so that the Committee is clear about the various restrictions it imposes. Subsection (1) makes it clear that only local authorities and registered adoption agencies, and those acting in accordance with a High Court order, should make arrangements for adoption. That provision is subject to subsection (4), which provides that the prohibition does not apply to the taking of certain steps if one or both of the prospective adopters are parents, relatives or guardians of the child, or if a prospective adopter is a step-parent. Clause 88 maintains the current legal position, but provides greater clarity than section 11 of the 1976 Act and the previous version of the Bill by listing in subsection (2) those steps that should not be taken by anyone unless an adoption agency is involved.

The step in paragraph (a) is asking a person to provide a child for adoption, for example, where a person asks a birth parent or a third party to supply a child; and in paragraph (b) asking a person to provide prospective adopters, for example, where the birth parent approaches a third party, such as an intermediary, and asks him to provide adopters for her child. The step in paragraph (c) is

''offering to find a child for adoption'',

for example, where X approaches Y and suggests that he can locate a child for Y to adopt. In paragraph (d), it is

''offering a child for adoption''—

where X, a parent of a child or an intermediary, has identified a child who could be adopted and makes a direct proposal about that child to Y.

The step in paragraph (e) is handing over a child for the purpose of adoption by the person who receives him or by someone else, for example, X takes and gives the child to Y for adoption, or X takes and gives the child to Z, so that he can hand the child over to Y for adoption. Paragraph (f) covers receiving a child for the purpose of adoption in contravention of paragraph (e): that would catch Y for taking the child from either X or Z, and catch Z for receiving a child from X to hand the child over to Y. I was thinking of preparing a flow chart, but I hope that the use of letters, particularly if people pore over my remarks later, will make clear the different restrictions.

Paragraph (g) covers

''entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child''.

That would catch both X and Y in their bargaining or agreement for the adoption of the child by Y; it would also catch Z for helping to facilitate the arrangement under paragraph (e), or in any other way assisting X and Y in the adoption of the child. Paragraph (h) covers

''initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g)''

for the adoption of a child or an agreement to facilitate the adoption of a child. In my example, it would also catch a new character, W, who has no role in the illicit adoption other than opening negotiations between X and Y by introducing them to each other for the purpose. Another example would be a person who participated in the negotiations in a mediating role. Finally, paragraph (i) restricts

''causing another person to take any of the steps mentioned in paragraphs (a) to (h).''

That final step catches anyone who does not take any of the aforementioned steps himself, but induces another person to do so.

Clause 88(3) and (4) provides that the prohibition does not apply to the taking of certain steps where one or both of the prospective adopters are parents, relatives or guardians of the child, or where a prospective adopter is a step-parent. The steps that do not apply are paragraphs (d), (e), (g), (h) and (i) of subsection (2).

That is probably sufficient explanation of the intentions behind the clause, and I urge that the clause stand part of the Bill.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful. The clause has been made terribly clear and we can proceed.

Question put and agreed to.

Clause 88 ordered to stand part of the Bill.

Clause 89 ordered to stand part of the Bill.

Clause 90 - Restriction on reports

Tim Loughton (Conservative, East Worthing and Shoreham)

The clause is not terribly contentious—[Interruption.]

Marion Roe (Conservative, Broxbourne)

Order.

Hilton Dawson (Labour, Lancaster and Wyre)

I am sorry, Mrs. Roe.

Tim Loughton (Conservative, East Worthing and Shoreham)

However, there seem to be a lot of let-outs. We agree that people who are not authorised to do so should not produce reports on prospective adoptions. However, subsection (4) provides that

''Where a person is charged with an offence under subsection (2)(b), it is a defence for him to prove that he neither knew nor had reasonable cause to believe that the report would be, or had been, prepared in contravention of subsection (1).''

In my experience, ignorance of the law is no defence. Anybody could say that they did not realise that a report would be used for the purposes of adoption. I should have thought that there ought to be a greater onus on a person who prepares literature akin to that which would be required for promoting an adoption. Does not subsection (4) give too lenient a let-out for the clause to be effective?

Jacqui Smith (Labour, Redditch)

Perhaps I can reassure the hon. Gentleman by outlining the restrictions in the clause. The intention is to cover cases of domestic and intercountry adoption in which couples seek to

circumvent the safeguards by commissioning private social workers to write inaccurate favourable reports to support their adoption applications. The clause permits only properly qualified people employed by or working on behalf of adoption agencies to carry out home study assessment reports and post-placement and post-adoption reports. We want to ensure that such reports are impartial and accurate. They are an essential part of the decision-making process, which exists to safeguard the interests of the child and to make an appropriate match between the child and adoptive parents. There is a further risk that placements may be disrupted by private report writers working on post-adoption reports, which are sometimes requested in intercountry adoptions by the country of the child's origin to monitor the way in which a placements is working, as is the case with adoptions from China and the Philippines.

The clause provides for restrictions on the preparation of adoption reports. Under subsection (1), we shall be able to specify that only qualified people in registered adoption societies, agencies or local authorities are able to prepare and write those essential documents, which play a key role in informing decisions in the adoption process. Unqualified and unregulated individuals should not be able to prepare home assessments on prospective adopters or post-placement or post-adoption reports. Under subsection (2), an offence is committed when someone prepares a report that contravenes subsection (1), or causes a person to prepare or submit such a report. Under subsection (3), when a person who works for an adoption society that is not registered commits an offence, the manager is also guilty of the offence. That ensures that the manager of an adoption support service is penalised, as his organisation is not registered.

Tim Loughton (Conservative, East Worthing and Shoreham)

A point that I had meant to mention in connection with the previous clause is equally relevant to this one. Who are we talking about when we refer to ''illegitimate'' adoption societies—ones that are not registered? What is the target of the clause? Is the problem a big one?

Jacqui Smith (Labour, Redditch)

I shall come to that after I have dealt with defence points.

Under subsection (4), we consider the basis on which a defence could be provided for a person charged with an offence of causing a person to prepare or submitting to any person a report in contravention of subsection (2). The hon. Gentleman argues that the defence is too lenient and may allow people to evade the intention of the clause. However, the defence is used in other legislation and, most importantly, it applies to subsection (3)(b) alone. It applies not to the person who actually prepares the report but to those who may receive the report without realising that it has not been prepared properly.

The measure does not give a let-out on the basis that they did not know the law to an unqualified or unregulated individual who prepares that report. The defence of not knowing or having reasonable cause to believe is included in a range of other legislation. If the hon. Gentleman is interested, I can go through some examples; I assure him that there are quite a few.

Subsection (5) sets out the penalty on summary conviction when an offence is committed as imprisonment for a term not exceeding six months, a fine not exceeding level 5 on the standard scale—that is, £5,000—or both. That shows the significance of the restrictions.

The hon. Gentleman asked about adoption societies, which clause 2(5) defines as bodies

''whose functions consist of or include making arrangements for the adoption of children''.

The ''illegitimate'' bodies to which the hon. Gentleman referred would include a person who set himself up as an adoption agency, but who was not registered as such and was not, therefore, subject to the quality control and monitoring that registration entails. With those assurances, I hope that the Committee will allow clause 90 to stand part of the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

Clearly, we need to prevent the production of fraudulent reports, but because the system does not always work properly, people go to independent consultants to move the process along. Under the provisions, could an independent consultant—even a high-ranking social worker with 20 years' experience who decided to go private—never produce a report?

I recently spoke to prospective adoptive parents in a London borough, which I need not name, who were involved in two adoptions from the United States of America. They said that the system was so poor that the delays would have lasted for years, and that they had been forced to go to an independent consultant for a report. From what I can make out, the council was relieved that they did so because that removed its responsibility. I suppose that my question comes down to what the word ''prescribed'' encompasses.

Jacqui Smith (Labour, Redditch)

Similar points were raised in our discussions on intercountry adoptions in which we rehearsed at some length the problems with private home studies. We also discussed how we might tackle capacity issues, such as those raised by the hon. Member for Huntingdon (Mr. Djanogly).

Private home studies have been open to criticism for several reasons, the most important of which is that there is no way to verify that those who carry them out have appropriate qualifications or experience. We discussed the fact that there will be no way of identifying the necessary qualifications until the General Social Care Council becomes fully operational. Secondly, such persons who carry out studies cannot obtain full police checks on prospective adopters and adult members of the household, but only a printout under the Data Protection Act 1988 of information about current convictions. Thirdly, they cannot obtain from the prospective adopters' local authority information about relevant previous contacts with social services; and, fourthly, they cannot obtain impartial medical advice on the health of the prospective adopters. Fifthly, there are no peer review or management arrangements to oversee the work of those who carry out assessments. Finally, the case could not be considered on its merits by an adoption panel or separate decision maker. The

Kilshaw case and other high-profile intercountry adoption cases that have gone wrong have involved criticisms of private home studies and individual independent social workers by the judiciary.

As for the hon. Gentleman's point about capacity, agencies can choose to contract with independent social workers to undertake an assessment of adoptive applicants. That will allow additional capacity to be brought into the agency, and ensure that the necessary information is obtained and that checks and balances are built into the system. That, rather than the reinstatement of a system of private home studies, is the way to address problems of capacity. When we discussed establishing such a system, most hon. Members agreed that it would be unsatisfactory in terms of safeguarding the best interests of children involved in adoption.

Tim Loughton (Conservative, East Worthing and Shoreham)

I want to pick up a couple of the Minister's points. I agree with her on the matter of necessary safeguards, but the question is whether the provisions would squeeze out all home study reports produced by anyone other than approved social workers, adoption agencies and others.

For two reasons, home studies are privately commissioned by individuals who want to adopt. One is that it has taken an interminably long time for one to be supplied by a local authority in its capacity as an adoption agency, as in the case mentioned by my hon. Friend the Member for Huntingdon, which involved a London borough. I am sure that such cases are common—I have come across many in which part of the problem of delay is getting someone to come round to start to produce a report. It is obvious that people who are frustrated by delays will commission their own studies.

The second reason why people might commission their own study is that they did not like the result of the first one from the local authority, and want one that is more favourable. In many cases, that would amount to an abuse of the system—unless there had been some degree of negligence and the assessment had not been made properly, although there are now various appeal procedures to cope with such cases, as we discussed in relation to other parts of the Bill.

Unless the Minister can guarantee a reduction in delays in the provision of reports by local authorities, demand for others to produce them will persist. She must assure the Committee that her Department will monitor delays in producing reports—there is wide variation between local authorities; for a host of reasons, some are much more efficient than others. If, as I suspect, she cannot guarantee that, she must allow for the continued provision of home study reports by private agencies that are properly regulated. My understanding was that because of the Care Standards Act 2000, police reports and various other innovations, there is now more of an infrastructure to monitor such agencies, and ensure that they are bona fide and produce completely objective and bona fide reports.

Jonathan Djanogly (Conservative, Huntingdon)

If, in its role as an adoption agency, an authority did not produce a report within a certain

time, would it not be a good idea to force it to contract out the production of that report?

Tim Loughton (Conservative, East Worthing and Shoreham)

That is an interesting practical suggestion, which might apply to many other services provided by public bodies. As things stand, it seems that we will have the worst of both worlds: enormous inconsistencies between the times taken for various local authorities to provide the professional report will persist, but the Minister will make it much more difficult for people to go elsewhere to commission a report.

Hilton Dawson (Labour, Lancaster and Wyre)

Will the hon. Gentleman give way?

Tim Loughton (Conservative, East Worthing and Shoreham)

In a moment. Without any proper checks that the reports are legitimate in the first place—[Interruption.] Oh dear—I am sorry, Mrs. Roe. I will give way.

Marion Roe (Conservative, Broxbourne)

Order. I remind Committee members to check that their mobile telephones are turned off. As we all know, it is a breach of the rules to have them switched on in Committee.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful to my fellow miscreant for giving way. I understand what he and the hon. Member for Huntingdon are saying, but is there not an inherent danger in a couple being able to commission a report that they need to be favourable? There are real difficulties with the Opposition's approach, and a serious distinction must be drawn between it and the argument being advanced by my hon. Friend the Minister, who is saying that any services would be commissioned by the local authority rather than the couple themselves.

Tim Loughton (Conservative, East Worthing and Shoreham)

I agree with nearly everything that my fellow miscreant says. Our proposed solution is not ideal. In an ideal world, all such reports would be produced by proper adoption agencies and local authorities, there would be no problem with their integrity and objectivity and they would be subject to the various appeal systems. Everyone agrees that that is the best way forward. However, the Minister must come clean about the delays in many parts of the country. If we do away with private reports and rely solely on social services departments and adoption agencies, those delays will continue—unless the Minister does something along the lines suggested by my hon. Friend the Member for Huntingdon, or provides more resources to prevent delay. Otherwise, we must acknowledge the practicalities: people will go elsewhere because they are frustrated by the amount of time the process is taking, or because they want a second opinion. The second of those reasons is not a good one, and should be treated with great suspicion.

There is a grey area in the middle of this issue. The safeguards should be greater, because if people are able to go elsewhere and consequently there is no pressure on local authorities to prioritise the production of home studies, those authorities will not do so, however much they might want to. The absence of such pressure may be a relief to some local authorities because of their workload and the constraints on their departments. If we speed up that system, private reports will wither away and those that

remain can be severely regulated. If we cannot speed it up, we must recognise that private reports will always have a role but that they must be much more closely regulated in order to legitimise them and make them more objective. If we do not take one of those options we will continue to swim around in the grey area. The time constraints will not improve matters, and the checks on private reports will not improve either.

Jacqui Smith (Labour, Redditch)

Part of the debate is based on a misunderstanding of current law. It is not currently possible to commission private home study reports for either domestic or intercountry adoptions. Hon. Members will remember that we discussed section 13 of the Adoption (Intercountry Aspects) Act 1999, which came into force on 30 January 2000 and which amended section 72 of the Adoption Act 1976 to include the assessment of prospective adopters in the definition of ''making arrangements''. By virtue of section 11 of the 1976 Act, the effect of that amendment was to ban privately commissioned home study reports and to make it clear that only a council or voluntary adoption agency may assess and approve an individual as suitable to adopt.

I maintain that the current legal position is right. There should be a structure of accountability, monitoring and peer review for the process of producing an assessment report, which is, let us not forget, crucial to determining whether the child's best interests will be served by the adoption. Monitoring—post-placement and sometimes post-adoption—of the success of the placement, should also figure in the arrangements. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) made an important point about the inappropriateness of a direct contract between the relevant person and the person or organisation given the task of assessing their suitability to adopt a child or to continue a placement or adoption. That seems an incestuous and difficult relationship that does not serve the child's interests.

The points made by the Opposition focus on whether the process is currently quick enough. Under clause 90(1), the person who prepares the report must fall within the prescribed description. We shall consult on that, and the criteria I have outlined today and the need for monitoring and quality assurance will be a significant focus of that consultation. We are also taking measures to speed up the process of adoption and to make it fairer, through, for example, the national adoption register, the national adoption standards and the independent review panels. In those ways—not by reducing the quality of the process to enable things to be rushed through in a way that could be inappropriate or even dangerous for children—we shall ensure that children can be appropriately adopted more quickly.

As we have now had a lengthy discussion, I hope that the Committee will feel able to agree that clause 90 should stand part of the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

To return to the question of speed, the Government have stipulated that a planning application for a property should be determined within eight weeks, and every council must reveal at

the end of the year the extent to which it has met that target. The process of adopting a child—a matter that I should have thought was somewhat more immediate, given the sensibilities involved—can sometimes go on for years. Is that right? Is not it reasonable to require that the reports should be produced within a set period, and that if they are not, the council should be obliged to have someone else produce them?

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

Does the hon. Gentleman accept that prospective adopters have other options? It is not necessary that they approach only the local authority in whose area they live, and it is not unusual for prospective adopters to approach other local authorities or independent agencies. They do not have only one place to go. Furthermore, do not some authorities prioritise certain prospective adopters, such as those who want to adopt older children, because they currently have such children in their care, so that a couple wanting a younger child would be better advised to approach an independent agency or other local authority?

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Lady makes several important points with which I do not disagree. On the other hand, she illustrates many of the system's inconsistencies, which will not disappear under the Bill. While approaches to other agencies may be appropriate for people living in some council areas or boroughs—for example, her local council is known to be very slow—the fact that they are able to do so does not excuse those councils from their duty to do a better job.

Jacqui Smith (Labour, Redditch)

My hon. Friend the Member for Sheffield, Heeley (Ms Munn) makes a crucial point. We are not talking about restricting choice, or, as we shall discuss later, about not putting pressure on the system to ensure quicker adoptions. The system, which is not incoherent, contains choices between quality options that can safeguard the welfare of the child. The hon. Gentleman seems, surprisingly, to be arguing for a choice between a quality option and a slipshod option that would make things a bit quicker regardless of the welfare of the child.

I do not want to repeat arguments that I have made before. The key point is that the restrictions are to do with ensuring that the adoption process works in the best interests of the child's welfare. Of course, time scales are important: that is why the Government have introduced the public service agreement target on time scales, which we published just before Christmas; it is why we have introduced much tougher performance management for local authorities; and it is why we shall publicly ensure that the performance of local authority social services departments is much more open to scrutiny. That is the reason we have already made progress in reducing the time that children spend in care before they are adopted. Those are the actions not of a Government who are unconcerned about time scales, but of a Government who want to speed up the process of adoption in a way that safeguards the interests of the child. The argument is about that fundamental issue.

Tim Loughton (Conservative, East Worthing and Shoreham)

There is a large degree of agreement on the clause, but the Minister—unintentionally, I am sure—still seems to be missing the point. Her remarks

about the slipshod option identified the very concern that my hon. Friend the Member for Huntingdon and I tried to express. People approach other local authorities or adoption agencies—they have a wide choice—for reasons that relate to the points I made originally: either their local authority is taking too long, or they believe that the requirements of another local authority or adoption agency might be less stringent. The Minister mentioned a third factor—another quality option—involving the wish to adopt a certain type of child or the fact that a local authority is concentrating on a particular type of adoptive parent. Essentially, people's reasons for going elsewhere are either that it will be easier—if they have been rejected by their home agency—or that it will be quicker.

We all want to speed up adoption, but the admission that people may have a choice between a quality option and a slipshod option is an admission that there are slipshod agencies. That is what we must bear down on. Such agencies are the target for improvements in speed, approach and the quality of the adoption services offered. However, I fear that that is not the problem that the clauses deal with.

We need to bring the slipshod option up to the standard of the others, so that good quality options exist in all parts of the country and people can expect a consistently high standard wherever they happen to live, or whichever agency they happen to approach first, whether a local authority or a voluntary adoption agency. I think that the Minister would agree with me. However, we have had a good discussion on the clause and we do not need to take the debate further.

Question put and agreed to.

Clause 90 ordered to stand part of the Bill.

Clause 91 - Prohibition of certain payments

Jacqui Smith (Labour, Redditch)

I beg to move amendment No. 259, in page 50, line 5, leave out from 'in' to end of line 6.

Having discussed restrictions on arrangements and reports, we come to the prohibition of certain payments. That safeguard is important because some individuals are prepared to engage in the despicable business of buying and selling children for adoption and do not recognise the needs of those children. It is essential that the welfare and needs of children be safeguarded.

The extent of the penalty in the clause acknowledges the seriousness of such activities. Individuals who are convicted face a prison term of up to six months, a fine of up to £10,000, or both. That is tougher than the current penalty under section 57 of the Adoption Act 1976, which the clause largely restates. The current penalty involves a prison term not exceeding three months, a fine not exceeding £5,000, or both. We are right to increase the penalty and thus the deterrent because children need protection.

The clause prohibits the exchange of any money in adoptions, other than that excepted in clause 92, which covers the payment of legitimate expenses incurred by adoption agencies and persons who apply or propose to apply for adoption or for the transfer of parental responsibility orders. Subsection (1) provides that the clause applies to any payment—other than the

payments set out in clause 92—which is made in adopting a child, consenting to an adoption, or removing to a place outside the British islands for the purpose of adoption a child who is a Commonwealth citizen or who is habitually resident in the United Kingdom. The subsection also applies to any payment that is made in connection with steps taken to arrange an adoption under clause 88(2), to which I shall return when I discuss the amendment.

Subsection (3) provides that an offence is committed if a person makes any payment to which the clause applies, agrees or offers to make any such payment, or receives, agrees to receive, or attempts to obtain any such payment. Subsection (4) provides for the toughened penalty that I outlined. It will ensure that there is a strong deterrent to discourage those who use financial reward to induce others to act in contravention of clauses 91, 82, 88 and 90.

The amendment is intended is to strengthen the connection between the steps taken under clause 88, which I spelled out in some detail, and the restriction in clause 91 on payments being made in taking such steps. Clause 88 makes it clear that only adoption agencies and persons acting in pursuance of a High Court order may take specified steps in relation to adoption, other than in certain circumstances—if the prospective adopter, or one of the adopters, is a parent, step-parent, relative or guardian of the child.

Clause 91 restricts the exchange of money in adoptions, and payments that fall under it are prohibited unless excepted by clause 92. As the Bill is currently drafted, clause 91(1) does not catch three of the nine steps specified in clause 88. Those are:

''asking a person other than an adoption agency to provide a child for adoption''

in clause 88(2)(a),

''asking a person other than an adoption agency to provide prospective adopters for a child''

in clause 88(2)(b), and

''receiving a child . . . in contravention of paragraph (e)''

with a view to adopting or allowing another person to adopt the child without an adoption agency being involved, which is dealt with in clause 88(2)(f). Therefore, any payment made for—or consideration of a person taking—any of those steps is not an offence. The amendment will make such payments unlawful and will ensure that clause 91(1) covers all nine of the steps in clause 88.

By including the three other steps under clause 91(1), we increase the safeguards for vulnerable children and provide the means to penalise those who make inappropriate payments, agree or offer to make such payments, or agree to receive such payments. For example, as well as those who approach a birth parent directly—under clause 88(2)(a)—we want to ensure that intermediaries are caught by the provisions. Someone who offered money to an intermediary would also be caught, such as a person offering money to someone involved in giving

advice and support to pregnant mothers or in providing care for children.

A person, X, might be eager to find a mother who is willing to give up her child for adoption; he approaches Y, a nurse who works in a maternity clinic, and offers Y money to approach new mothers who are experiencing problems and who might be persuaded that their difficulties could be easily resolved by giving up their newborn child for adoption. In respect of clause 88(2)(b), a parent may be unwilling to keep a child, but not want to put the child into the care of the local authority. That parent may offer money to an intermediary to find prospective adopters and then give the child up freely or negotiate some reward for the exchange of the child. The amendment would restrict that payment. Finally, in respect of clause 88(2)(f), those who, as part of a financial transaction, place a child with another person for that person or another to adopt will be penalised.

The Committee will agree that making payments in relation to adoption is inappropriate, except in specific and excepted cases. It is certainly inappropriate to use adoption to make a profit. The restrictions in clause 91, strengthened by Government amendment No. 259 with its explicit links to clause 88, provide the protection to ensure that such practices do not find their way into our adoption system.

Tim Loughton (Conservative, East Worthing and Shoreham)

We are in full agreement with the clause. The Minister is right to say that legislation must prevent people from profiting from adoption. However, I query the wording of what is left after the amendment—perhaps I missed an amendment debated earlier that adds to subsection (1)(d). I appreciate the steps outlined by the Minister, but as it stands the amendment simply deletes the last parts of the last three lines of paragraph (d) so that subsection (1) reads, in part:

''This section applies to any payment (other than an excepted payment) which is made for or in consideration of . . . a person (who is neither an adoption agency nor acting in pursuance of an order of the High Court) taking any step mentioned''.

What is ''any step mentioned''? Surely, there must be a reference to particular eventualities in a previous part of the Bill; otherwise anyone who is not an adoption agency or acting in pursuance of a High Court order will be caught for ''taking any step mentioned''. I am sure that there must be a reason why the clause is worded in such a way, but it is not obvious without additional explanatory notes that explain some of the Government's amendments.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I might be able to assist the hon. Gentleman. The amendment deletes to the end of line 6, so the subsection will read:

''mentioned in section 88(2)''.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is the sort of explanation that I was after. If it is correct, I am happy to proceed with the clause.

Jacqui Smith (Labour, Redditch)

Perhaps I can help. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd)—

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Don't start that again.

Tim Loughton (Conservative, East Worthing and Shoreham)

Where's the bottle?

Jacqui Smith (Labour, Redditch)

The hon. Member for Meirionnydd Nant Conwy should deliver on his promises.

The amendment will leave out from ''in'' to the end of line 6 only, so that the subsection will refer to

''a person (who is neither an adoption agency nor acting in pursuance an order of the High Court) taking any step mentioned in section 88(2)''.

I hope that with that clarification we can proceed.

Amendment agreed to.

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

Tim Loughton (Conservative, East Worthing and Shoreham)

I have one technical query. How does the restriction in subsection (1)(c) relate to adoptive parents from abroad, who, making a payment for an adopted child from this country, then make a payment that covers travel expenses and other items? How is that excluded, so that they are not prosecuted for paying a fee that is not a profiteering fee?

Jacqui Smith (Labour, Redditch)

We shall debate clause 92, which relates to excepted payments, later. The intention of that clause is that precisely the sort of payment to which the hon. Gentleman refers would be included in the excepted payments, if it was ''reasonably incurred'' in relation to an adoption. For example, a payment made for the child's travel and for someone to accompany a child from one country to another would be excepted under clause 92, if that was done within the restraint of relatives or parents—I shall correct myself if that is not the correct restraint. The situation described by the hon. Gentleman would not be prohibited by clause 91.

Robert Walter (Conservative, North Dorset)

The clause is one of the more important clauses in the Bill, especially as it relates to intercountry adoptions. I should like to probe the Minister on the prohibition of payments. The clause is specific with regard to payments made in respect of

''removing from the United Kingdom a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom'',

but not in respect of children coming in the other direction.

Some of the worst examples of payments for intercountry adoptions relate to children who have been ''bought'' in other countries. Excessive payments have been made to agents in those other countries, some of them masquerading as lawyers and claiming extortionate fees for arranging adoptions. Will the Minister give me some assurance that either this or another clause—I may have been remiss in not examining the Bill closely enough—will cover those payments that we would all like to prohibit?

Jacqui Smith (Labour, Redditch)

The hon. Member for North Dorset (Mr. Walter) rightly suggests that payments should not be made when bringing children into this country for adoption, if they are not under the auspices of an adoption agency or travelling with their adoptive parents. The hon. Gentleman's point is covered by the restrictions in clause 88 on arranging adoptions. There is a direct link between the restrictions on arranging

adoptions and any payment that might be made for arranging them. I will correct myself if I am wrong, but I suspect that the situation outlined by the hon. Gentleman may be covered by the restrictions in clause 88. Therefore, it would be prohibited under clause 91.

There is no excepted payment for a child's travel into the United Kingdom, as we require it to be accompanied by its adoptive parents in those circumstances. If an intercountry adoption had happened abroad, the child would have to return with its adoptive parents. That and the restrictions in clause 88 deal with the hon. Gentleman's concerns.

Question put and agreed to.

Clause 91, as amended, ordered to stand part of the Bill.

Clause 92 - Excepted payments

Robert Walter (Conservative, North Dorset)

Again, I wish to probe the Minister a little. The clause suggests that other payments can be made to a registered adoption society by a parent, guardian or person who proposes to adopt a child. I remind the Minister of clause 11, which relates to fees and about which we had extensive discussions. I even proposed a couple of amendments to it. It states that

''Regulations under section 9 may prescribe . . . the fees which may be charged by adoption agencies in respect of the''

various provisions.

I wonder whether, under clause 92, the Secretary of State would also prescribe the excepted payments and some scale for them. If there is not some national scale or prescription, we leave the door open for adoption agencies to skirt around the law and tell prospective adoptive parents that a payment is excepted, and that they must write out the cheque as the matter is not covered elsewhere in legislation. Will the Minister state specifically what the excepted payments are, and whether a published scale will be available to those who are likely to be charged them?

Jacqui Smith (Labour, Redditch)

Once again, we repeat arguments about charges. I shall outline the point of clause 92 in excepting—making exceptions of—certain payments. The clause is necessary because of the strong restrictions that clause 91 rightly places on the taking of any steps involved in arranging adoption.

First, I shall respond to the point specifically made by the hon. Member for North Dorset. Under section 57 of the 1976 Act, adoption agencies can recover from adopters and prospective adopters expenses that they have reasonably incurred in connection with the adoption of a child. That applies to domestic and intercountry adoption but, in practice, adoption agencies do not recover expenses in cases of domestic adoption.

Under the Bill, as we discussed on clause 11, it is intended that local authorities will not be able to recover expenses arising from domestic adoptions. However, under clause 11(2) and (3), they will be able to charge for specific services in respect of intercountry

adoption. We talked at some length about the justification for that and—I quoted the Department's guidance on intercountry adoptions—for the fact that such charges can be made only to recover expenses, so there can be no element of profit. We mentioned the disadvantages of setting a national rate, which would mean that some agencies might be given more in fees than their expenses. In some areas, agencies might not cover their expenses, which would make them even more averse to dealing with the problems of intercountry adoptions. It could lead to longer queues. That covers the hon. Gentleman's point.

Clause 92 provides that payments may be allowed, and so excepted from clause 91, in certain circumstances. Subsection (1) allows any payment made under the Bill when it is enacted, or under the equivalent provisions in Scotland and Northern Ireland—the Adoption (Scotland) Act 1978 and the Adoption (Northern Ireland) Order 1987. That therefore allows the payment of adoption support allowances to an adoptive family—unless such a family was excepted under the clause, it might be prohibited by clause 91—and for the agency to use its discretion to charge for tracing individuals.

The other intention in clause 92 is to allow payments to be made for reasonable expenses. That includes legal and medical expenses in relation to an adoption, such as when expenses are incurred for applications and proposed applications to the court for adoption orders, applications for placement orders and applications for contact under clause 25. Clause 92 allows for payments to a local authority or registered adoption society for expenses incurred for arranging the adoption of a child whose country of origin is outside the UK. Such payments could be for preparation classes, medical reports, legal expenses, home study reports, schedule 2 reports and post-„adoption reports.

The clause also covers reasonably incurred travel and accommodation expenses when a child is taken out of the UK for adoption, as is permitted by clause 82(2). For example, a child's travel and accommodation costs would be excepted, as well as those of a person escorting the child. As I suggested, we are aware of some intra-family adoptions from the UK to the Indian sub-continent. When those comply with conditions set out under clause 82—hon. Members will remember that it is about the transfer of parental responsibility before a child leaves the country—we do not wish to penalise families for making such payments.

Robert Walter (Conservative, North Dorset)

I am grateful to the Minister for running through the possible exceptions. She described them several times as reasonable payments. I referred to clause 11. Fees would be reasonable payments, but surely there should be a requirement for transparency. Adoptive parents should not feel in danger of being hit with a bill for what some official or adoption agency thinks is a reasonable payment, but which is totally unexpected and which they might find difficult to pay. Within the context of the clause, I suggest that the

Secretary of State or the adoption societies should be required to give potential adoptive parents some idea of the likely costs under the clause.

Jacqui Smith (Labour, Redditch)

There are two problems, which I addressed previously. First, there is no power for the Secretary of State to prescribe the level of excepted fees under clause 92. The hon. Gentleman has not proposed an amendment to alter that, so it remains the position. More significantly, to return to a point that we discussed at length in relation to earlier clauses, councils and voluntary adoption agencies are and will continue to be able to charge prospective overseas adopters a fee to cover expenses reasonably incurred.

For the reasons that I have spelled out, it is not appropriate for the fee to be set nationally; it is more appropriate for it to be set locally, because each agency's costs will be different and its fees should be able to reflect them. A nationally set fee would lead to some agencies receiving more than their costs while others did not cover their costs, which might discourage them from making the assessments.

I explained when we discussed transparency that it is important that fees are made clear to prospective adopters. In addition, we went through the redress that would be available to prospective adopters through the complaints procedure if they felt that an agency had breached the condition that it should not recover more than its costs. We have covered those points. The hon. Gentleman is trying to reopen a previous debate, rather than focusing on the clause, which does not include the power to do what he proposes, even if—in policy terms—it were considered to be appropriate. I do not think that it is, for the reasons that I have given.

Question put and agreed to.

Clause 92 ordered to stand part of the Bill.

Clause 93 ordered to stand part of the Bill.

Clause 113 - Restriction on advertisements etc.

Jacqui Smith (Labour, Redditch)

I beg to move, amendment No. 261, in page 63, line 38, after '88(2)' insert—

'( ) a person other than an adoption agency is willing to receive a child handed over to him with a view to the child's adoption by him or another'.

We are, as I said earlier, moving on to a clause that covers not only restrictions on advertisements on the internet, but wider restrictions on advertising.

The new subsection provides that the restriction on advertising in clause 113 that I shall spell out will apply also to advertisements that indicate that someone other than an adoption agency is willing to receive a child handed over to him with a view to the adoption of that child by him or by another person. It seeks to ensure that there are adequate safeguards in place to protect vulnerable children. It is, as we have discussed, essential that the welfare and needs of children be safeguarded.

There are those who are prepared to engage in the buying and selling of children for adoption. Even if money does not change hands, nobody should be permitted to arrange private adoptions that are not

subject to the provisions, safeguards and quality standards that are applied to the processes of adoption that we have discussed. Only local authorities and registered adoption societies should make arrangements for adoption, and restrictions on advertising are an essential part of the Bill's safeguards to prevent the exploitation of children and protect their welfare.

Clause 113 restates, with amendments, section 58 of the Adoption Act 1976, which restricts the publication of advertisements indicating that persons other than adoption agencies are willing to make arrangements for the adoption of a child, and makes it an offence for parents or prospective adoptive parents to advertise their desire for adoption. There is a broad consensus on the necessity for the current restrictions on advertising, but clause 113 goes further. It is a UK-wide provision that imposes a new restriction on the distribution of such advertisements, on advertisements that a person is willing to remove a child from the UK for the purpose of adoption, and on the publication and distribution of information about how to make arrangements for the adoption of a child.

In addition, the clause also makes an explicit reference to the internet so that there cannot be any doubt that the Bill covers this new medium. The internet is providing agencies with a new and growing medium for reaching out to prospective adopters. That is appropriate, but it opens up the risk that some individuals will try to advertise illicit adoptions in this country. We do not want websites to advertise children for adoption in this country unless the advertisements are placed by adoption agencies.

Adoption agencies are increasingly and rightly looking to the broadcast media to help them recruit prospective adopters. A number of television programmes featuring children available for adoption have been transmitted in co-operation with adoption agencies. The example of the BBC shows how it is possible, when the advertisement is placed by an adoption agency, to ensure that children's interests are safeguarded.

The BBC has broadcast two programmes on adoption, both under the theme of ''A Family of My Own''. In January 2000 the programme featured single children and sibling groups available for adoption; more than 24,000 calls were received by the adoption agencies involved in the programme, and most of the children have since been placed for adoption. Another programme followed in April 2001, featuring successful adoptions. It featured adoptive families and told of their experiences and feelings about their adopted child.

Television and other media can be powerful tools for recruiting adopters, but such recruitment must involve an adoption agency to ensure that the welfare of any child is protected if, for example, a television programme advertises a helpline that gives personal details of a child to callers, or initiates an adoption agreement. The involvement of the adoption agency will ensure that there is no disclosure of confidential information and that the best interests of the children are maintained in the placing of what, in the BBC's case, was an appropriate and useful advertisement.

The provision places restrictions on advertising by third parties, permitting them to be placed only by or on behalf of an adoption agency. It does not prevent third parties from providing general information about adoption, promoting adoption as a positive option, or passing to prospective adopters interested in a particular child the contact details of the child's adoption agency. However, any attempt by a third party to pass on information about an individual child, including their contact details, would be caught by clause 88(2). Nothing in the clause prevents any organisation from spelling out the benefits of adoption, but there are, rightly, restrictions on the extent to which the arrangements for individual adoptions and information about individual children can be disclosed.

Subsection (4) provides for a penalty on conviction of up to three months in prison, or a fine up to level 5—currently set at £5,000—or both.

With the addition of amendment No. 261, clause 113 safeguards children's welfare through the careful imposition of restrictions on advertising while ensuring that the appropriate use of advertising for the recruitment of adopters is still possible.

Amendment agreed to.

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

Tim Loughton (Conservative, East Worthing and Shoreham)

We fully support the amendment that the Committee has just approved, and the Minister's reasons for placing restrictions on advertisements. My only concern is to ensure that the provisions are watertight. I appreciate how difficult it must be to marshal all the new electronic forms of communicating and placing advertisements, such as through the internet. We all know that people have used loopholes to do that. However, my interpretation of the clause and the Minister's comments on amendment No. 261 lead me to suspect that some perfectly legitimate ways of distributing information may fall foul of the provisions, although I appreciate that the Secretary of State is given fairly wide discretion to make amendments.

In the ''Challenge Aneka'' programme some years ago, Aneka Rice was challenged to smarten up a Romanian orphanage. I remember watching the programme. Aneka Rice, a BBC crew and all sorts of other people went out to Romania and came across this orphanage in the most appalling state, where children of all ages were housed in terrible conditions. Those people did a great job of trying to repair the accommodation.

I believe that the programme was one reason for the enormous flood of interest in adopting children from Romania. It had publicised the appalling conditions that many children suffer in such orphanages. Enough personal details were given about those children to identify them. Hand in hand with that was the assumption that people could help not only by donating money to the various charitable works being undertaken to improve conditions for those children but, implicitly, by offering to adopt. Because

of the lack of potential adopters in Romania and because the country was in a state—it was only a few years after the iron curtain came down—that programme implied that adoptive parents would be sought from outside Romania.

On my understanding, that programme could be thought to have distributed information to promote adoption and unwittingly, but possibly under the terms of the legislation, given information about children who could do with a better home and for whom adoptive parents could be found in the United Kingdom or elsewhere. It was a long time ago, but I believe that that was done without the obvious co-operation of a recognised adoption agency.

No one could say that there was anything malicious or underhand about the programme. Indeed, what it achieved was laudatory. Strictly speaking, however, a programme maker who sought to make a follow-up programme or an equivalent modern version of it could be prevented from doing so, which might be a bad thing. We do not want such examples as that programme to be caught by these otherwise necessary clauses.

On the same score, the Minister might like to say why Romanian adoptions have dried up since a moratorium was placed on them in July 2001. I gather that it has a lot to do with an extraordinary campaign by Emma Nicholson, a Member of the European Parliament who, on rather scant information, has brought to an end adoptions from Romania, although the state of childcare in that country leaves an awful lot to be desired. Many children still live in appalling conditions in orphanages, and adoption by supportive adoptive parents in the UK or elsewhere in the European Union where there is now a moratorium is greatly to be recommended.

Marion Roe (Conservative, Broxbourne)

Order. I must remind the hon. Gentleman that his comments are outside the scope of the clause, although he has made his point well.

Tim Loughton (Conservative, East Worthing and Shoreham)

Thank you, Mrs. Roe. Your comment was well timed.

I should like to make one more point in relation to the clause. It is notoriously hard to marshal the internet. Bearing in mind the nature of the internet and the difficulty of finding the originator of an advertisement or the disseminator of information, how does the Minister intend to make these clauses work, particularly with regard to a body or an individual seeking from a country that does not fall under UK jurisdiction to encourage some form of adoption in the UK? Has her Department had bilateral discussions with a view to enforcing the clauses in countries outside the UK, bearing in mind the fact that, when people advertise to adopt UK children or to find adoptive parents in the UK, the effect is felt in the UK? The financial authorities sought to come to such arrangements with other countries when various dubious organisations set up in overseas tax havens and advertised their latest ''get rich quick'' schemes in the UK.

I agree with the need for and thrust of the clauses but, where the internet is concerned, they will work, particularly on a global scale, only if provisions are implemented by authorities in other countries to ensure that the same considerations apply.

Jacqui Smith (Labour, Redditch)

I missed the programme that the hon. Gentleman mentioned.

Jonathan R Shaw (Labour, Chatham and Aylesford)

He has a great video collection.

Jacqui Smith (Labour, Redditch)

The hon. Member for East Worthing and Shoreham needs to get out more. He has raised an important point. Subsection (2) spells out—[Interruption.]

Marion Roe (Conservative, Broxbourne)

Order. I must ask the hon. Members for North-West Norfolk (Mr. Bellingham) and for Huntingdon not to hold sub-Committee meetings in the Room; I can hear a burble of conversation.

Jacqui Smith (Labour, Redditch)

I was drawing the Committee's attention to subsection (2), which clearly spells out which advertisements are restricted. I suspect that the programme did not contravene the proposed conditions that

''(a) the parent or guardian of a child wants the child to be adopted,

(b) a person wants to adopt a child,

(c) a person other than an adoption agency is willing to take any step mentioned in paragraphs (a) to (e), (g) and (h) and (so far as relating to those paragraphs) (i) of section 88(2), or

(d) a person is willing to remove a child from the United Kingdom for the purposes of adoption.''

However, it is inevitable, as the hon. Gentleman pointed out, that such programmes will draw interest in adoption. That is not necessarily a bad thing. What is important is that the safeguards are in place. We have discussed at length the intercountry provisions to be applied in the interests of the children, were such a programme to prompt someone to consider adoption. It is unlikely that the clause would catch the programme that he mentioned, but programmes that broadcast explicit details about children who are available for adoption should do so only on behalf of or with an adoption agency.

You made clear your views on Romania, Mrs. Roe, so I shall say only that I shall respond to the hon. Gentleman's parliamentary question on the issue with a little more information about the Romanian Government.

The hon. Gentleman is right that it is difficult to control the provision of information over the internet, and, as in the other areas that he mentioned, there are limits on what we can do. However, there are clear steps that the Government can and will take to avoid the problems that I mentioned. An internet service provider in the United Kingdom that hosts a website containing illicit information can be penalised if it fails to block access to that website once it has been notified of the problem. We therefore have a clear power as regards internet service providers that host websites in this country.

If the host internet service provider is based outside our jurisdiction, we will press it to close access to the illicit website or ask the authorities in that country to

take action. We will have no powers under the Bill to block access at the source or through a UK conduit internet service provider. However, my colleagues in the Department of Trade and Industry will soon consult on regulations to implement the e-commerce directive, which explicitly promotes co-operation between member states to meet the ends that we are discussing. Codes of practice may well give us the scope to ensure that we achieve our objectives as regards the internet. With that clarification, I hope that hon. Members will feel able to support clause 113.

Question put and agreed to.

Clause 113, as amended, ordered to stand part of the Bill.

Clause 114 ordered to stand part of the Bill.

Clause 106 ordered to stand part of the Bill.

Clause 107 - Acquisition of parental responsibility

Tim Loughton (Conservative, East Worthing and Shoreham)

We can move fairly swiftly through the next group of clauses. A step-parent can acquire parental responsibility for a stepchild on marriage to the child's mother. Does parental responsibility automatically lapse if those individuals are subsequently divorced, or is the question subject to a parental responsibility court order as part of a divorce settlement? I am sure that there is an obvious answer. I see the Parliamentary Secretary scribbling fiercely and I am sure that she will respond quickly. The Bill is not clear on the point.

Rosie Winterton (Labour, Doncaster Central)

Perhaps it would help if I first outlined the effect of clause 107. It inserts into the Children Act 1989 section 4A, to enable a step-parent to acquire parental responsibility for a child of his spouse, either by agreement between the step-parent and the parents who have parental responsibility for the child, or by order of the court. The measure is intended to provide an alternative to adoption where a step-parent wants to acquire parental responsibility for his or her stepchild.

The advantage is that the provision will not remove parental responsibility from the other birth parent and will not legally separate the child from membership of the family of that other birth parent. It will enable step-parents to acquire a legal status in relation to the child for whom they are caring. Given that that will come about by order of the court, parental responsibility will not automatically lapse. It could be terminated only by the court. I hope that that answers the hon. Gentleman's question and that he will therefore agree to the clause.

Jonathan Djanogly (Conservative, Huntingdon)

Under subsections (3)(b) and (4) of new section 4A, the court could, effectively, bring the arrangements to an end if they did not work out. The child would be listened to and the court would need to see whether the child had sufficient understanding. I

have been thinking about whether we should also turn matters around. Why should the child's views not be heard in the first place, when it was proposed that parental responsibility be given?

Hilton Dawson (Labour, Lancaster and Wyre)

This is an excellent clause. I am sure that a large part of the delay in social services departments affecting adoption arises from the vexed question of step-parent adoptions, which can have little priority for overworked social services departments but which, nevertheless, are important for children, step-parents and natural parents. I welcome the proposal to enable step-parents fairly readily to acquire parental responsibility without all the pain, difficulty and frustration that loss of parental responsibility and of contact between the child and the wider family would cause to the birth parent with whom the child is not living. I very much hope that the clause will be widely used and that it will lead to the withering away of the use of step-parent adoptions. I can see no further use for such adoptions, given the content of the new provisions. This is a very important step forward. It is efficient, sensible and above all humane, and I welcome it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I agree; the clause is useful and important and brings into line a matter that needs to be dealt with. The hon. Member for Huntingdon asked the Minister why we could not turn the whole matter round. If, under subsection (3), the child has the right to apply to the court, why should the child not be consulted when the step-parent makes his or her application for parental responsibility? That would be perfectly logical and right and would extend the concept. The question is useful, and I ask the Parliamentary Secretary to consider it further.

Jonathan R Shaw (Labour, Chatham and Aylesford)

I should like to join my hon. Friend the Member for Lancaster and Wyre in warmly welcoming the clause. I remember, when I was a duty social worker, receiving calls from birth parents and having to explain to them that they would have to adopt their own child. The messenger was often shot. I was considered to be responsible—not true with regard to existing legislation, but to some extent true with regard to this Bill.

It is beyond me how anyone could have dreamt up the idea that a birth parent should be obliged to adopt their own child. A constituent in such a situation wrote to me a couple of years ago. My right hon. Friend the Member for Barrow and Furness (Mr. Hutton), the ministerial predecessor of my hon. Friend the Minister, wrote to me, stating that the Government were committed to removing the anachronism in order to facilitate a speedier process in which families could secure themselves and children could be adopted by their step-parents. My constituent was put off by the thought that they would have to go through the whole adoption process, and put the idea on ice. I hope that, when the Bill receives Royal Assent, that constituent's family and thousands of others will be able to take advantage of it. The legislation is long overdue, but represents a promise kept and is very welcome.

Robert Walter (Conservative, North Dorset)

I declare an interest in that I might benefit from the application of the provision, as I am a step-parent of a child, without parental responsibility, in the very circumstances set out by the clause. I want

to probe the Parliamentary Secretary, because proposed new subsection (1)(b) states that

''the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.''

That is the alternative to proposed new subsection (1)(a), which states that

''both parents''—

birth parents—

''may by agreement with the step-parent provide for the step-parent to have parental responsibility''.

If the estranged birth parents decided for reasons that might in certain circumstances be vindictive that they objected to the arrangement, would the court get involved in lengthy litigation and debate among the three parties about the merits and demerits of the application, which might be detrimental to the child's welfare? Will the Parliamentary Secretary gives us some idea of what criteria she envisages the court applying?

Rosie Winterton (Labour, Doncaster Central)

I am glad to be supported on the clause, which hon. Members on both sides of the Committee have welcomed. It is true that the adoption law review recommended that the law be changed to enable step-parents to acquire parental responsibility. The provisions also have the advantage of not removing parental responsibility from the other birth parent and do not, therefore, legally remove the child's membership of that birth parent's family. That is important, given that we have spoken throughout about what is in the child's best interests.

Jonathan Djanogly (Conservative, Huntingdon)

Will the Parliamentary Secretary clarify the position on probate? Could a child have three or four parents and inherit from them all?

Rosie Winterton (Labour, Doncaster Central)

I shall come to that when I have discussed the hon. Gentleman's point about taking the child's views into account.

The provisions will apply the principles of the Children Act. In practice, the court will apply the welfare checklist. In some instances—where the child is a baby, for example—it may not be possible to take their views into account. None the less, the welfare checklist will include the child's wishes and feelings, and the court will be able to appoint an officer of the Children and Family Court Advisory and Support Service to report on the child's views if that is felt to be appropriate.

I want to mention two other issues. First, it is open to a natural parent to oppose the granting of parental responsibility to a step-parent in court. As the hon. Member for North Dorset said, that may involve some wrangling, and the court will have to decide what is in the child's best interests. Such circumstances will inevitably arise.

Jonathan Djanogly (Conservative, Huntingdon)

I would be grateful if the hon. Lady explained how the court will know what the child's feelings are, given that it need not necessarily consult.

Rosie Winterton (Labour, Doncaster Central)

As I have said, the principles of the Children Act would apply, which means that the child's interests and welfare would have to be taken

into account. If necessary, the court can appoint a CAFCASS officer to ascertain the child's feelings.

Jonathan Djanogly (Conservative, Huntingdon)

The whole point of the clause is to provide a faster solution so that people do not have to go through the whole adoption process, and everyone welcomes that. However, a husband and a stepmother may make an application in which social workers are not involved to a great extent. There may, therefore, be greater scope for not finding out what the child wants.

Rosie Winterton (Labour, Doncaster Central)

In any case before a court, what is in the best interests of the child will have to be considered, especially when one parent opposes the application. Because the welfare checklist in the Children Act will apply, it will be important for those interests to be taken into account. A point was made about inheritance. A child will be able to inherit from only the natural parent or when there is a will, so the acquiring of parental responsibility will not affect that. I hope that I have provided some reassurance about the views of the child being taken into account.

As I have said, we believe that the provisions will be effective. They will improve the situation for step-parents while allowing the child to continue to have a legal relationship with the birth parent. I am grateful for the support that the Committee has given the clause, and I hope that it will stand part of the Bill.

Question put and agreed to.

Clause 107 ordered to stand part of the Bill.

Clauses 108 and 109 ordered to stand part of the Bill.

Clause 110 - Special guardianship orders

Jonathan Djanogly (Conservative, Huntingdon)

On a point of order, Mrs. Roe. When special guardianship orders were discussed at our evidence-taking sittings, the Minister agreed to produce a report or letter of some sort that set out the tax and probate position of children subject to such orders. I reminded her of that some weeks ago, but the note has not appeared. It would have been helpful had it appeared by today.

Marion Roe (Conservative, Broxbourne)

The hon. Gentleman will understand that that is not a point of order for the Chair. I am sure that the Minister has taken note of his point.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 256, in page 58, line 2, at end insert—

'( ) Section 41 applies in relation to proceedings in which any question of making, varying or discharging a special guardianship order arises as if they were specified proceedings for the purpose of that section.'.

This is a long clause—if not the longest in the Bill. It is technical and comprehensive, and any further explanation and information that the Minister could have provided would have been helpful. Perhaps further information might be forthcoming later if we are still debating the clause.

Members on both sides of the House widely welcomed special guardianship orders and considered them a good innovation. We certainly support the

principle behind them. Concerns have been raised, some during the witness sittings, that the long-term stability and security that supposedly went with a full-blown adoptive placement would be removed in producing a halfway house—for want of a better phrase—between full adoption and fostering. That is a fair point, but special guardianship orders serve a purpose. They will need to be monitored closely when under way, but I am sure can be made to work. They should not be seen as detracting from occasions when full-blown adoption would be the most suitable course of action if properly conducted in a sustainable and secure family environment which could last in perpetuity. For those children who need to retain some links to birth parents for a host of reasons, the orders have a key role to play.

The amendment is the result of several representations from outside bodies, not least the Law Society, which was specifically responsible for its wording. The principle of the amendment is that children should have a greater say in special guardianship order proceedings and be properly represented. That is why the amendment states that

''proceedings in which any question of making, varying or discharging a special guardianship order''

should be ''specified proceedings''. I am not a lawyer, but I gather that that would involve making children or their representatives party to the orders.

We have debated the consultation of children and the role that children should play in adoption placement procedures. There has been agreement on some issues, but Opposition Members would have liked the Government to go further in including children in other matters. There is a greater requirement for children to be brought into the process of special guardianship orders as much as possible. More often than adoption orders, they will involve older children, who are much more party to their circumstances and why new arrangements need to be made owing to domestic problems with their birth parents or remaining birth parent. Therefore, it is much more important that the child have a voice independent of that of the local authority.

I gather that the Government's draft Bill included special guardianship orders as specified proceedings under section 41 of the Children Act 1989. In view of that, it would be useful if the Minister set out the Government's reasons for the change. I also gather that the appointment of a CAFCASS officer in appropriate special guardianship proceedings is to be provided for in secondary legislation. It would be useful to the Committee if the circumstances in which that was envisaged were clarified.

The amendment is probing, and I am sure that the Minister will welcome the opportunity to explain the change in thinking between the draft Bill and the one before us.

Julian Brazier (Conservative, Canterbury)

I should like to intervene briefly in the debate with a point that applies as much to the amendment as to any part of the clause. We have made rapid progress this morning, so as to spend a long time on the clause. It would be helpful if the Minister explained how special guardianship

differed from the provisions available under the Adoption Act 1976, which also offered a special relationship. There is certainly a demand for such an intermediate status, as I think all members of the Committee recognise and welcome. However, given that there was not much enthusiasm the last time a halfway house was tried, it would be helpful if the Minister at some stage—perhaps later—explained why she considers the clause better than the original provisions.

Jacqui Smith (Labour, Redditch)

I start by apologising, in particular to the hon. Member for Huntingdon. In response to a request, which I think was from him, I ensured that full notes were made available to the Committee. I apologise if some issues were omitted. I cannot promise to have anything ready by this afternoon, but perhaps it will be possible to examine the issues raised by him in more detail.

As the hon. Member for East Worthing and Shoreham pointed out, the clause is significant because it makes provision for the new special guardianship order under the Children Act 1989. To provide some context and an introduction to the amendments, it might be useful if I fleshed out the proposals and explained where they originated. I cannot necessarily outline the differences between them and proposals made 30 years ago, as the hon. Member for Canterbury (Mr. Brazier) requested, but I shall write to him to show how things have moved on.

The idea of the new status was proposed in the performance and innovation unit report following the Prime Minister's adoption review in July 2000. It received widespread support in the public consultation that followed. The Government subsequently made a commitment in the White Paper, ''Adoption: A New Approach'', to develop a new legal option called special guardianship, aimed at meeting the needs of children for whom adoption is not appropriate but who could still benefit from a permanent, legally secure placement.

I know, and members of the Committee have several times pointed out, that children value the sense of legal security and permanence that can come with a court order. The intention is therefore to give the special guardian clear responsibility for all the day-to-day decisions about caring for the child or young person and for decisions about his or her upbringing. However, in contrast to adoption, the order will maintain the basic legal link with the birth parents. They will remain legally the child's parents, though their ability to exercise their parental responsibility will be limited. They will retain the right to consent, or not, to the child's adoption or placement for adoption.

The White Paper suggested that special guardianship might be appropriate for some older children who might, for example, be in long-term foster placements, and who while not wanting to be legally separated from their birth parents could benefit from greater legal security and permanence; for some children being cared for on a permanent basis by members of their wider family; and for children in some minority ethnic communities that have religious or cultural difficulties with adoption as it is set out in

law. At present, such children would probably be looked after either by local authority foster parents or informally.

Julian Brazier (Conservative, Canterbury)

As the Minister knows, we are all in favour of the new measures, but will she reassure the Committee that where younger children, who have no views of their own, are concerned, the prejudices or customs—whatever term one wants to use—of birth parents from whom, for whatever reason, the child has been taken away, would not be a bar to full adoption?

Jacqui Smith (Labour, Redditch)

Obviously, the decision about adoption would be based on the best interests of the child, as is appropriate. We have spoken throughout about the Government's wish and intention to increase the number of children adopted out of care, and to ensure that that happens more quickly. However, the White Paper and the PIU concluded that some groups understandably still have difficulty with some of the legal aspects of adoption. We are not necessarily offering such people a choice between adoption and special guardianship, because it is unlikely that they would have opted for adoption. We are providing an opportunity for special guardianship orders to be made, with the permanence and other conditions that they create, as opposed to nothing. It is an important step forward.

Julian Brazier (Conservative, Canterbury)

This is an important point. The Minister has outlined a number of other cases, and one can think of other examples. For instance, the father may be dead and the mother permanently incapacitated in such a way that prevents her looking after the child but the child still regards her as mum. However, if a minority group is specifically opposed to adoption—we are dealing with younger children, who will have no views on the matter—the pre-eminence of the child's interests must surely dictate that it should not be allowed to block the adoption of children who might otherwise be satisfactorily adopted by people who do not share that view.

Jacqui Smith (Labour, Redditch)

As I suggested in my previous answer, it is important that the processes and the safeguards that we talked about in relation to clause 1 and the placement provisions are considered in such circumstances.

The new order is also intended to offer more security and a better support package than a residence order. It is designed to be flexible enough to work in a range of situations—including in cases where there is extensive and regular contact with the birth family and in instances where that would not be appropriate but when it would nevertheless be desirable to retain the basic legal link between the child and the parent. The Government want the new order to be used successfully, and the Bill therefore places a duty on local authorities to make arrangements to provide support services for special guardianship placements. We shall discuss that in more detail under later amendments. We anticipate that those support services will operate in a similar manner to adoption

support services, and we intend to consult widely on the rules, regulations and guidance that will accompany the implementation of the provisions.

I shall go into more detail on the new sections to be added by clause 110. Proposed new sections 14A to 14G of the Children Act 1989 will provide for the new special guardianship order. They state who may apply for an order, the circumstances in which orders may be made and the nature and effect of the orders; and they allow local authorities to provide support services for special guardians.

Proposed new section 14A sets out who may apply for special guardianship and the process for making an application. People may apply jointly—they need not be married—and they must be aged 18 or over. Local authority foster parents may also apply with the leave of the court if the child in their care has lived with them for a year. When considering making a special guardianship order, the child's welfare is the court's paramount consideration and the welfare checklist in section 1(3) of the Children Act applies.

Those who want to apply to become special guardians must give three months' written notice to the local authority, which must investigate and prepare a report to the court on the suitability of the applicants to be special guardians and any other relevant matters. Regulations will prescribe the matters to be covered in the report. We intend to use those arrangements to ensure a proper assessment process. The court cannot make an order unless it has received a report covering the suitability of the applicants. The Government intend to set out, in court rules, that an officer of the Children and Family Court Advisory and Support Service is to be appointed in appropriate special guardianship proceedings to represent the interests of the child. I shall refer to that in more detail when I address the amendment.

Proposed new section 14B provides that, before making a special guardianship order, the court must consider whether a contact order should be made at the same time. The court may also allow the child to be known by a new surname and to be taken out of the United Kingdom for longer than three months.

Proposed new section 14C sets out the effect of the special guardianship orders, giving the special guardian parental responsibility for the child, as I described. Furthermore, while a special guardianship order is in force, the child may be known by a different surname or be removed from the United Kingdom for longer than three months only with the consent of all those who have parental responsibility or with the leave of the court. Although those decisions can be made at the time of the making of the special guardianship order, there are restrictions on that after a certain time. Special guardians must also take reasonable steps to inform the child's parents if the child dies.

Proposed new section 14D sets out the circumstances when special guardianship orders may be varied or discharged. Proposed new section 14E makes supplementary provisions, including allowing the court to set time scales for special guardianship proceedings to avoid unnecessary delay.

Proposed new section 14F makes provision for local authority support services for special guardians and children subject to special guardianship orders. Each local authority must arrange to provide support, including counselling, advice and information and such other services as prescribed in the regulations. The Government intend to consult on the regulations prescribing the circumstances when local authorities must, at the request of special guardians and children subject to special guardianship orders, carry out an assessment of needs for special guardianship services. We shall use the regulations to ensure that local authorities put in place a range of support services, including financial support, which will be available when appropriate for special guardians and children subject to special guardianship orders.

Julian Brazier (Conservative, Canterbury)

I have a general question. Everything that the Minister has said is right, but will she reassure the Committee that the guidelines will be the same as those for adoptions? We do not want to set up a huge new body of expertise, with which our already overstretched social services departments will have to deal, for a niche in the market that may turn out to be worthwhile but, none the less, small. Will the special guardianship provisions follow the same guidelines as those for adopted children, except when there are obvious variations?

Jacqui Smith (Labour, Redditch)

There may be some areas of obvious difference in the two circumstances, but the hon. Gentleman makes an important point. It is likely that the adoption support services established for adoptive families and adopted children will be similar to those for special guardians and children subject to special guardianship orders. The hon. Gentleman is right in his view of the way in which local authorities should respond to the provisions. The Government will consult on the overall framework. It makes sense for links to be made between the support services.

Subsections (4) to (9) of proposed new section 14F govern the assessment process and, when support services are to be provided, the arrangements for their provision. As with adoption support services, the needs assessment may be carried out at the same time as an assessment of a person's needs for any other purpose.

Proposed new section 14G obliges every local authority to establish a procedure for considering representations, including complaints made to them, in respect of special guardianship support services by special guardians or children subject to special guardianship orders.

Hilton Dawson (Labour, Lancaster and Wyre)

It is clear that the measure is important, but it is also clear that difficulties and disputes could occur when parental responsibility is shared. The parental responsibility of special guardians will outweigh that of birth parents, so should birth parents not be included in the category of people who can have their complaints considered under the provision?

Jacqui Smith (Labour, Redditch)

Matters concerning birth parents are best dealt with in relation to the making of the special guardianship order, rather than in relation to proposed new section 14G, which is about

representations and complaints with respect to special guardianship support. We intend to use the powers to require authorities to establish complaints procedures for special guardianship support, modelled on the revised Children Act complaints procedure, to be established under section 26 of the Children Act 1989 as amended by clause 111.

Clause 110 represents a substantial new set of provisions, delivering on the Government's commitment to create a new permanent order to meet the needs of children who cannot live with their birth parents, but for whom adoption is not appropriate. These complex provisions are designed for use in a wide range of circumstances and we intend to consult carefully on the details of their implementation, in order to ensure that we get that right. Although, as the hon. Member for Canterbury says, the provisions in the Bill are very detailed, it is not necessarily appropriate to include certain others.

That brings me smoothly to the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

At last.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman cannot have it both ways. In one breath he complains that there is not enough information and in another, when I am trying to further his education, he complains that I have gone on for too long.

The hon. Gentleman's amendment proposes adding a subsection to proposed new section 14A that would mean that a children's guardian would have to be appointed by the court in any proceedings relating to the making, variation or discharge of a special guardianship order, unless it was satisfied that it was not necessary to safeguard the child's interests.

Proposed new section 14A sets out who may apply for a special guardianship order and the process for making an application. Applicants must give three months' written notice to the local authority of their intention to apply for an order. That is to ensure that the local authority can investigate and prepare for the court a report about the suitability of the applicants to be special guardians, and other relevant matters. We intend to set out which matters should be covered by the report, and to use the regulations to ensure that there is an appropriate process for assessing the suitability of prospective special guardians. We shall consult on how the assessment process should work.

However, it is envisaged that statutory guidance will require the results of earlier relevant assessments to be taken into account—for example, where the applicants are approved foster carers. The provisions allow the local authority to engage the assistance of other organisations in preparing assessment reports. The experience of voluntary adoption agencies in assessment might make them suitable organisations to assist local authorities in that way.

The court cannot make an order unless it has received a report covering the suitability of the applicants to be special guardians and the involvement of the social services in the process. The requirements for what the report should cover will ensure that the welfare of the child and his interests are investigated and reported to the court. The

Government intend to set out in court rules that a CAFCASS officer be appointed in appropriate special guardianship proceedings. However, subject to consultation, we envisage a CAFCASS officer being appointed in most cases where the court considers making a special guardianship order. We shall want to consider carefully the circumstances in which an officer should be appointed in cases where the court considers varying or discharging such an order. That is particularly true where all the parties have given their consent, and it may not be appropriate for a CAFCASS officer to be appointed in such cases.

We shall consult widely before the court rules come into effect. They will set out the circumstances in which CAFCASS officers must be appointed and their duties in each case. We shall listen carefully to the views of stakeholders on that important issue, but we do not believe that the Bill should prescribe the power to appoint CAFCASS officers, because such a power already exists in section 41(6) of the Children Act 1989.

The hon. Member for East Worthing and Shoreham alluded to the fact that proposed new section 14E(6) introduced in March would have had a similar effect to the amendment, but that that provision does not appear in the present Bill. We have consciously made that change for two reasons after further consideration and discussions with colleagues in the Lord Chancellor's Department. First, we have confirmed that the Children Act already provides the power to appoint CAFCASS officers. Secondly, we are convinced that the issue is best dealt with through court rules, rather than in the Bill, because that approach allows for greater flexibility. In a small number of cases, the involvement of a CAFCASS officer will not be necessary or desirable—for example, where there is no contention and all parties have given their consent to the special guardianship proceedings being used to consider the discharge of the order for an older child.

Opposition Members also raised the issue of children's ability to receive representation, and there are two broad options for independent representation. Either the children's guardian and legal advisers act in tandem to represent the child as a separate party to the proceedings or the CAFCASS officer provides a report to the court, which can cover the child's wishes and feelings. Older children can instruct their own lawyer if the court thinks that they are competent to do so, although that is very rare. Such children can receive public legal services funding.

In the light of those reassurances and of my explanation of the change to the Bill, I hope that the hon. Member for East Worthing and Shoreham will withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am enormously grateful to the Minister for furthering my education, as she so uncondescendingly put it. I was not complaining half an hour ago about her explanation, although some of

us rather lost the will to live part way through it. However, she took various interventions on matters that had nothing to do with the amendment, and I hope that we shall not impinge on your tolerance, Mrs. Roe, if we raise other matters in a clause stand part debate.

I was grateful for the Minister's eventual explanation of the circumstances in which CAFCASS officers could be appointed, and it was useful to put those on the record. I am encouraged by her undertaking to consult widely on the use of such officers and on court proceedings. Uncharacteristically, she also went further towards explaining properly why the provisions in the draft Bill were changed. The proof of the pudding will be in the eating, when we see what happens with respect to court rules, but if what is envisaged is in the interest of greater flexibility, there is something to be said for it.

I am grateful for the explanation that has been given and sorry that my amendment took so much of the Committee's valuable time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 257, in page 60, line 12, after 'guardian', insert

'and,

(c) a birth parent'.

Marion Roe (Conservative, Broxbourne)

With this, we may take amendment No. 258, in page 61, line 25, after 'guardian', insert

'and,

(c) birth parents'.

Tim Loughton (Conservative, East Worthing and Shoreham)

These are also probing amendments. All our remaining amendments to the clause are targeted on support services. We have previously debated the importance of adoption support services and such support services will have no less importance when applied to special guardianship. The amendments would add a third category to the prescribed persons who may, under proposed new section 14F(2), at their own request have an assessment of their needs carried out or, under new section 14G(1), formally make representations, including complaints, to a local authority. Under the Bill, prescribed persons would be, first, a child with respect to whom a special guardianship order was in force and, secondly, a special guardian. We want birth parents to form the third category.

An interesting representation was made by the Family Rights Group to the effect that birth parents who kept up a contact arrangement with their children who were the subjects of a special guardianship order would obviously retain a closer interest in their children's welfare than would the birth parents of a child who had been adopted and responsibility for whose welfare had moved to a completely different sphere. Such parents are not accorded under proposed new sections 14F(2) and 14G(1) any right to assessment for support or any facility to make representations or complain, yet the effect of a special guardianship order would be to exclude them

from decision making, although some contact would be likely.

Surely, in view of that, the birth parents would need adoption support services to explain to them the procedure that was coming into effect and how they would fit into it with respect to future contact. It would be a big decision for them. After the order had been made, problems might arise with the contact provisions, giving rise to the need for counselling, support services for domestic problems, or other such help. If there is a case for other people involved in the special guardianship order process to have special guardianship support services and the facility to make representations, I do not see why birth parents should be left out altogether. Unless that is specified in primary legislation, I fear that it will be a low, if not non-existent, priority for local authorities to provide either of those two services for birth parents. That is the point of this probing amendment. Birth parents will play a greater role in special guardianship than that played in any adoption by those whose child is adopted, so why, apparently, have they been excluded from the process altogether?

Jacqui Smith (Labour, Redditch)

Proposed new section 14F(2) provides that the local authority may, and in prescribed cases must, make an assessment for special guardianship support services at the request of

''a child with respect to whom a special guardianship order is in force''—

or—

''a special guardian''.

As I said, proposed new section 14G sets out that the local authority shall establish a procedure for considering representations and complaints from those two groups about the way in which the local authority discharges its duties under proposed new section 14F.

Although many of the services required to support special guardianship will be similar to those required to support adoption, as I suggested in response to an intervention from the hon. Member for Canterbury, there are fundamental differences between special guardianship and adoption, particularly in that special guardianship does not have a lifelong effect. Special guardianship involves neither the permanent loss of a child to adoption, nor the same complex issues relating to tracing relatives and obtaining information that we discussed in detail last week and which will be covered by the adoption support provisions. Some special guardianship orders will be made with the consent of all the parties, but others will clearly be contested.

Nevertheless, the Government believe that, because of the fundamental difference between adoption and

special guardianship, access to support for special guardianship should be more restricted than access to similar services for adoption. Our priority is to support the child and young person and his or her special guardians, and the provisions reflect that. In practice, many of the birth parents whose child is made the subject of a special guardianship order will already be in touch with social services. Some children may remain in the department's care. In such cases, depending on their need for services, the department may be able to help them.

The hon. Member for East Worthing and Shoreham raised the issue of support for contact. The local authority has a general duty under section 17 of the Children Act 1989 to provide services for children in need, their families and others. In particular, they have a duty to safeguard and promote the welfare of children living in their area and, so far as is consistent with that duty, to promote the upbringing of such children by their families.

Jonathan Djanogly (Conservative, Huntingdon)

I have a straightforward, non-trick question. Does the Minister see special guardianship as a suitable scenario in a case where there should be no contact?

Jacqui Smith (Labour, Redditch)

Yes, it is possible to envisage a situation of special guardianship with no contact. I did not realise that the hon. Gentleman had been trying to trick me earlier, but I will have to keep an eye out for that.

Section 17 of the Children Act is important, because under the provisions in the Bill it would be possible for both parents to seek help with, for example, expenses associated with fulfilling a contact order. Also, section 16 of the Children Act allows the court to make an order requiring an officer of the local authority to advise, assist and befriend a person named in the order, who could be a parent, anyone with whom the child is living, or the child. The order may only be made by consent and in exceptional circumstances, and lasts for up to six months. The power is not greatly used, but it is clear that it is available to require a local authority to supervise contact, for example.

I hope that the hon. Member for East Worthing and Shoreham recognises my arguments for the narrower scope for special guardianship support provisions, as well as the ways in which it is already legally possible to support birth parents in cases such as those he described.

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

Adoption and Children Bill

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

A revised Chairman's provisional selection list has been circulated. New clause 11 has now been grouped with new clause 10 for the purpose of debate. I should also inform the Committee that the Programming Sub-Committee met earlier today and agreed a resolution, a copy of which has been circulated. The Committee must consider that resolution before proceeding to further consideration of the Bill.

Motion made, and Question proposed,

That the Special Standing Committee recommend that two days be allotted for Consideration and Third Reading of the Adoption and Children Bill.—[Jacqui Smith.]

Tim Loughton (Conservative, East Worthing and Shoreham)

I do not want to eat into the Committee's time this afternoon, but it is useful to put on the record that the Opposition welcome the extension of consideration proposed in the motion, given that much of the Bill has not been covered in Committee, and there are many further issues that may not be covered by the new clauses. We are happy to support the motion.

Question put and agreed to.

Clause 110 - Special guardianship orders

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

I remind the Committee that with this we are taking amendment No. 258, in page 61, line 25, after 'guardian', insert 'and,

(c) birth parents'.

Tim Loughton (Conservative, East Worthing and Shoreham)

At the end of our previous sitting, I had risen but then sat down quietly at the stroke of one o'clock. I must check that my mobile is off, lest it intervene again.

The Minister had just responded to the two Opposition amendments, which are designed to add birth parents to the list of people eligible to request assessments for support services for special guardianships and to make representations to local authorities. The Minister's response was interesting. She said that there were fundamental differences between adoption support services and those required for special guardianship. She also said that the

amendment was not required because local authorities had a general duty to give support to families generally and to promote the welfare of children living in their area.

In closing, the Minister referred to section 16 of the Children Act 1989, claiming that it already did what we want the amendment to achieve. I have examined that section: it relates to family assistance orders and is only partly relevant to clause 110. She also said that the facility was ''not greatly used'' in any case, but it was, at least, available. We will not press the amendment to a vote, but it is worth putting it on the record, and the Minister should be aware, that although the power may well be available, unless it is actually specified in the Bill it will have very low or nil priority for local authorities, whose resources are stretched to provide all the other support services for which the Bill specifically legislates. That is the problem.

Although I do not think that the Minister has made a convincing enough case that what we are asking for is fully covered in the Bill, I hope that her comments make it implicitly clear to local authorities that there is a requirement—one that should be a priority and cannot be ignored.

I said that these were probing amendments. The Minister has not given us categorical reasons why birth parents should not be included in respect of the delivery of services, but she is satisfied that those services will be available through other means. I hope that she is correct. Despite the reservations that I have expressed, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move, amendment No. 253, in page 60, line 17, leave out 'decide whether to'.

We are back on familiar territory. The amendment deals with the thorny subject of the local authority deciding whether or not it should be in the business of providing support services. You might recall an earlier debate—I am not sure whether you were in the Chair, Mr. Stevenson, as it was such a lengthy debate that it straddled both yourself and Mrs. Roe in the Chair—[Laughter.] That was probably a bad turn of phrase. It is about time someone's mobile phone went off.

The question we dealt with in relation to clauses 4 to 12 was that of adoption support services. We all agree that they are necessary, and an important feature of the Bill is that it beefs them up. However, there was concern at that stage of consideration. Although the Bill makes due provision for the making of assessments of need for adoption support services, which is fine, it then goes a bit wobbly, for want of a better word, about ensuring that if an assessment of need is made, the support services should actually be provided.

Subsection (3) of proposed new section 14F says that

''Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.''

Consistent with our amendments to the adoption support services part of the Bill, amendment No. 253 would leave out ''decide whether to''. If the Minister thinks that local authorities should have the flexibility to decide that, having identified the need for support services, they are not going to provide them, in what scenarios does she think that that would be justified? The problem is that if the requirement for special guardianship support services is not specifically stated in the clause, as was the case with adoption support services, it will assume a low priority for local authorities, which have many pressures on their resources to meet other requirements in the legislation.

The Minister had due notice of the thrust behind the amendment some weeks ago. No doubt she will trot out the same excuses as she did last time.

Henry Bellingham (Conservative, North West Norfolk)

I rise to support my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). It is vital that we ensure the right level of support services in connection with special guardianship orders.

Special guardianship orders may work very well in the majority of cases, but I can envisage cases in which there is a great deal of stress between guardians and birth parents and various problems and tensions build up. In extremis, an application can be made to the court to vary or even to discharge the SGO. That is obviously rather formal, but in some cases it may be the last resort.

In essence, we must put in place services to provide the counselling and help that are needed. That is what concerns me, because it goes to the heart of what we have to do to help children. Once an adoption has taken place, little can be done legally to help the child. In the case of SGOs, a great deal could be done, but going through the legal hoops will be traumatic, difficult and awesome. A proper support service would provide vital back-up. That is why I support the amendment.

Jacqui Smith (Labour, Redditch)

Not only is this territory thorny, as the hon. Member for East Worthing and Shoreham said, but it has been well and truly tramped over. Opposition Members are repeating the points they made during our debates on adoption support services—points that were well countered not only by me but by some of my hon. Friends—and the debate on whether the right to assessment should lead automatically to a right to provision, and the extent to which the measure is out of line with the principles governing the provision of public services.

Proposed new section 14F of the 1989 Act makes provision for local authority support services for special guardians and children subject to special guardianship orders. Under subsection (1), each local authority must arrange to provide support, including counselling, advice and information, and such other services as are prescribed in regulations. Regulations will be made prescribing the circumstances in which, at the request of special guardians and children subject to

special guardianship orders—following the lead of the hon. Member for North-West Norfolk (Mr. Bellingham), perhaps we can now call them SGOs—local authorities must carry out an assessment of that person's need for special guardianship support services.

The hon. Gentleman raised issues that I suspect would be more appropriately covered by the assessment process. I made it clear this morning that we would set out the type of process that should be gone through during such assessments and preparation. That process is important in relation to SGOs.

Jonathan Djanogly (Conservative, Huntingdon)

If two children were in similar circumstances except for the fact that one was adopted and the other was the subject of special guardianship, would one of them be entitled to more help than the other?

Jacqui Smith (Labour, Redditch)

It would depend on the assessment. We pursued this morning the question of whether or not the services that might be available to support special guardianship would be similar to those available for adoption support, and we said that it would depend on the circumstances of the case. If, for example, financial support were needed to ensure the stability of the placement, I suspect that the two children would receive the same services; on the other hand, if counselling were needed to prepare for the fact that adoption meant a complete move away from the birth family but special guardianship did not, there would be differences.

The important point is that parents and children involved in both special guardianship and adoption support cases have the right to an assessment. That right is the same for both. What results from that assessment is the subject of debate, which is why local authorities should have the discretion to decide whether and how to provide those support services.

The Government intend to use the regulations to ensure that local authorities put in place a range of support services, including financial support, to be available when appropriate for special guardians and children subject to special guardianship orders. In practice, as I suggested, many of the services for adoption support will be relevant to special guardianship.

As I said, we are already working on a new framework for adoption support. We will consult widely on our proposals for the framework later this year. In that consultation, we will raise the particular needs of special guardians. We will also consult stakeholders on the regulations that put in place special guardianship support services to ensure we get the detail of those services right.

The Government believe that when the assessment of need for special guardianship support identifies a need for such support, local authorities are best placed to decide, based on need and the resources available locally, whether to provide services to individuals, and, if so, which services. That is not an inappropriate

form of decision making given the range of services for which local authorities are responsible. As the Committee is aware, the issue was discussed in some detail when we considered clause 4. The same principles apply under clause 110. First, it is an appropriate decision for a local authority to make. Secondly, it is inappropriate to set the provision of special guardianship services above decisions to be made on other services when the same principle, about the right to an assessment and a decision on provision, forms the model for those services.

Proposed new section 14F(4) requires local authorities that decide to provide special guardianship support services following an assessment, when the circumstances fall within what is prescribed by regulations, to prepare a plan for the provision of such services and to keep that plan under review. Regulations made under new section 14F(5) will set out requirements on the manner and frequency of reviewing such plans.

The amendment would require local authorities to provide special guardianship support services that a person has been assessed as needing. As I have said before, it is not needed. The amendment would make the provision of special guardianship support services unique among public services, and it would undermine the legitimate decision-making role of local authorities. As I have argued successfully before, it is not appropriate.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister has not mellowed over the past few weeks. She may have won the battle on numbers in Committee, but she has not won the war of minds. She did not convince us that adoption support services should merely be an option for local authorities to choose to apply to people whom they have clearly identified as being in need of such services. She says that special guardianship support services would be unique if the amendment were accepted, but they would not be unique if she had agreed to the common-sense approach of our amendments to the clauses on adoption support services.

However, we shall not get any further with the Minister now, and I am sure that hon. Members would like to go on to other more important parts of the Bill. Rather than repeat the arguments again today, we shall save those battles for Report stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 245, in page 60, line 17, at end insert

'and provide for a review of a decision not to provide special guardianship support services.'.

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

With this it will be convenient to discuss amendment No. 254, in page 60, line 17, at end insert

'and provide a written explanation of their reasons if those support services will not be forthcoming.'.

Henry Bellingham (Conservative, North West Norfolk)

The amendments represent a fallback provision. We were fearful that the Government would not accept the previous amendment. That they did not is a pity, because I

believe that local authorities should be obliged to provide those services. Now that they will not have that clear legal obligation, it makes sense to oblige them to provide for a review of any decision not to provide those support services, and to give a written explanation of why the services are not to be forthcoming. That is not asking a great deal.

The Minister and her colleague, the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Doncaster, Central (Ms Winterton), have on several occasions expressed their wish to break down the barriers of officialdom and to remove from decision making the aura of remoteness that often characterises public perception of local government. It is important that decision making and what goes on in social services departments be made more user friendly.

Will Ministers not agree that the cost of implementing the amendments would be negligible, but that they would give a clear signal that the Government believe in being as open as possible and in communicating with the public? That is especially important when a decision on something like providing support services goes against a family or an individual. In such circumstances those making the decision they should at least appear compassionate. I very much hope that the Minister will accept these two modest amendments, which will probably cost nothing but will show the Government in the best possible light.

Jacqui Smith (Labour, Redditch)

As the hon. Gentleman says, the amendment makes statutory the provision of a written explanation. I do not believe that that is appropriate. When, following an assessment of needs, a local authority decides not to provide special guardianship support services, a complaint may be made to the local authority under the procedures established in proposed new section 14G of the 1989 Act, which I outlined briefly this morning. Amendment No. 254 would require local authorities, when they decide not to provide special guardianship support services following an assessment under proposed new section 14F(2), to provide a written explanation of their reasons for not doing so. That is not a matter for primary legislation.

I agree that it would be good practice for local authorities to provide a written explanation of their reasons for not providing adoption support services or special guardianship support services following an assessment, but the matter should be covered in guidance to local authorities. In some cases, depending on the needs of the person who has been assessed, it might be more appropriate to provide a verbal explanation.

The amendment also impinges on the issue of how people are able to make representations and complaints. The Government are improving the Children Act complaints procedure. We undertook a consultation exercise that resulted in a range of improvements to the procedure, and through clause 111 we are amending the complaints procedure established under the 1989 Act. The Bill implements the changes that require primary legislation.

In addition, new regulations will be developed and guidance issued to local authorities. I can assure the hon. Gentleman that the new special guardianship complaints procedure will reflect those developments, enabling a person who has been refused special guardianship support provision to make representations. That is explicit in the legislation. It is good practice to ensure that transparency surrounds decisions on special guardianship support, but that is more appropriately covered in guidance than via the inflexible approach of incorporating it into legislation. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

Anyone who has had cause to make a complaint against local authorities will know that they can go to all sorts of lengths to obfuscate and delay to make the process as difficult and as painful as possible. The Minister says that guidance can be in put place; I hope that there will be full guidance on the complaints procedure and on what local authorities should do in the circumstances. However, that is no substitute for setting down a clear, well defined process in the Bill.

We are not talking about the average local authority, as the Minister knows, because most will handle the matter compassionately and get it right. We are talking about the small percentage of local authorities that will not behave as she would like. Some will fall below the expected standards of service. It is about those local authorities that I am most concerned.

The Minister says that she would like written explanations in the majority of cases, but that verbal explanations may sometimes be more appropriate. Will she elaborate and tell me in which cases verbal explanations would be more appropriate? Obviously, some people might not be able to read, and people from different ethnic backgrounds might not understand English.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman answers the question himself—[Interruption.]

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

Order. There are conversations taking place here and there that even I can hear, and I am slightly hard of hearing. Please keep it down.

Jacqui Smith (Labour, Redditch)

However many people consider something good practice, it is not necessarily appropriate to make provision inflexibly, as proposed in the amendment. That is my major concern and why I oppose the amendment.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

If I heard the Minister correctly, she said that proposed new section 14G of the Children Act 1989 nearly covered the point made in the amendment. It covers special guardianship support services provided, and so relates to complaints about the level or frequency of support services. So far as I can see, it does not explicitly or implicitly cover a refusal to supply those services, which is the point of the amendment.

Jacqui Smith (Labour, Redditch)

I will correct myself if I am wrong, but I think I said that there were two approaches. First, in many cases it might be appropriate to give a written explanation to a person who, following assessment, was not to receive special guardianship support services, but I do not think it appropriate to put a requirement in legislation. Secondly, complaints would be dealt with by the specific points about representations on special guardianship support services covered in proposed new section 14G.

I understand the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) to be suggesting that proposed new section 14G implies that one could complain about only the nature of the provision of service, and not about whether one had been granted access to services following an assessment. The new section makes it clear that regulations may be made under it, so the procedure can be set out in regulations, not only in guidance. I will correct myself if I am wrong, but my understanding is that it covers refusal to provide services.

To answer the point made by the hon. Member for North-West Norfolk, reasons for refusing the provision of services could be given orally when the request was for advice or guidance only. It would hardly be appropriate to go through the lengthy process of writing down reasons why it was not possible to provide services in such cases.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

In the light of that explanation, will the Minister point out where in proposed new section 14G that is implicitly or explicitly covered?

Jacqui Smith (Labour, Redditch)

I will. New section 14G(1) states:

''Every local authority shall establish a procedure for considering representations . . . about the discharge of their functions under section 14F''.

That obviously covers whether local authorities provide special guardianship support services, as well as how they do so.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

That is helpful. Thank you.

Henry Bellingham (Conservative, North West Norfolk)

I would like the Minister to say a quick word about the precise circumstances in which she envisages a verbal explanation being more appropriate than a written explanation.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman can keep asking me and I can keep repeating what I have said, or he can accept what I have said, which covered a wide range of situations.

Henry Bellingham (Conservative, North West Norfolk)

I accept what the Minister has said.

It has been important to debate the subject, because local authorities will carefully consider what has been said in Committee. The subject is important and no laughing matter. On the basis of our debate and the Minister's positive response—which falls short of accepting the amendment—I intend to seek the Committee's leave to withdraw the amendment.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

With respect, I am not convinced by the Minister's reply, despite the advice given to her. The words

''discharge of their functions under section 14F''

mean a local authority's provision of support services under that new section. We have been discussing the inability or unpreparedness of local government to provide those services, which is totally different.

Henry Bellingham (Conservative, North West Norfolk)

My hon. Friend is spot on.

Jacqui Smith (Labour, Redditch)

Would the hon. Gentleman care to advise his hon. Friend to read proposed new section 14F(3)?

Henry Bellingham (Conservative, North West Norfolk)

Indeed. I would like to read it in the light of our amendment having been accepted, but that will not be the case, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 248, in page 60, line 25, leave out 'may' and insert 'must'.

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

With this it will be convenient to take the following amendments: No. 246, in page 60, line 29, leave out 'may'.

No. 249, in page 60, line 29, after 'particular', insert 'will'.

No. 250, in page 60, line 30, leave out 'or' and insert 'and'.

Tim Loughton (Conservative, East Worthing and Shoreham)

We continue in a similar vein, and I am not optimistic about our chances, given the previous foray. However, we will go through the motions.

Our efforts to beef up the provisions were appropriate in relation to adoption support services—[Interruption.]

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

Order. Will hon. Members please take their conversations outside? They are a bit distracting.

Tim Loughton (Conservative, East Worthing and Shoreham)

I cannot say too many times that if measures are not put in primary legislation, they will not be treated as a priority by the local authorities that provide the services if their resources are stretched, as is often the case. The Bill messes about with wishy-washy language, stating:

''The Secretary of State may by regulations make provision''.

What does that actually amount to? There must be a ''must'' requirement, and amendment No. 248 would introduce one.

Amendments Nos. 246 and 249 go together and relate to proposed new section 14F(6). Again, we want to strike out ''may'', but this time we would replace it with ''will''. I do not know what argument there can be about those amendments, because we are simply saying that the regulations ''will'' make provisions for the whole list of items in paragraphs (a) to (h). I cannot understand why the Bill should not be beefed up in that way.

Amendment No. 250 refers to subsection (6)(a). The change from ''or'' to ''and'' may seem purely semantic to some people, but the regulations must detail both what assessment will be carried out and how it should carried out. I cannot understand why it should be an either/or scenario. If provisions are made about the

way in which an assessment is carried out, we need to know the details of that assessment; likewise, if there is provision detailing the sort of assessment to be carried out, we need further qualification of how that will be done.

Our amendments may be small, but they would beef up a clause with which we all agree. We want to give the clause a few more teeth.

Jacqui Smith (Labour, Redditch)

The arguments relating to the ''must'' and ''may'' amendments are twofold. First, hon. Members need reassurance that the Government intend, as they have publicly stated, to put in place what is necessary to ensure that there are special guardianship support provisions. Secondly, there are technical questions about whether it is appropriate to use ''may'' or ''must'' in relation to regulations.

First, to convince people that the Government are serious about these matters, it is worth pointing out that we made a positive decision to include in the part of the Bill that relates to special guardianship a component that deals specifically with special guardianship support services. That shows the importance of the provision of those support services to making special guardianship a success. We included in that component a right to an assessment for children or special guardians; that right was not in the White Paper, so we have gone further than we originally proposed.

In proposed new section 14F(1), we make it clear that each local authority must make arrangements for the provision of special guardianship support services in its area, and outline what those arrangements should include. The regulations will give more detail about services and do not relate to the fact that something is to be provided.

The amendments refer to particular subsections of the clause. Subsections (2) to (8) of proposed new section 14F govern the assessment process for the special guardianship support services and, when special guardianship support services are to be provided, the arrangements for their provision.

Subsection (5) gives the Secretary of State the power to make regulations governing the provision of assessments for special guardianship and the preparation and reviewing of plans for the provision of special guardianship. Subsection (6) specifies the matters that regulations made under subsection (5) may cover: they include the type of assessment made, the way in which plans are drawn up, and the considerations to which local authorities are to have regard.

The amendments would require the Secretary of State to make regulations under subsection (5) rather than give him a permissive power to do so. That is inappropriate. I have tried to spell out before why it is inappropriate; perhaps I shall have more success this time. To put into legislation that the Secretary of State ''will'' produce regulations is to take it for granted, to presume, or to guarantee that Parliament will approve any regulations that the Secretary of State sets out to make. That would mean that the Secretary of State might not be able to comply with the duty placed on him by the Bill to make the regulations. Therefore,

something that was laid down in legislation might not be capable of being delivered if Parliament refused to allow the making of the regulations.

The argument is a circular one. I do not expect that the regulations referred to in the provision will be rejected by Parliament, but it would be illogical to set up a potential circle, whereby it was impossible to deliver what was laid down in legislation.

The amendments to subsection (6) would compel the Secretary of State to make regulations in all the areas listed in paragraphs (a) to (h). That would undermine the flexibility of the current approach, which allows the Secretary of State to consider which areas require regulation and to prepare draft regulations for consultation with interested parties and stakeholders before laying them before Parliament for its consideration.

Amendment No. 250 is puzzling, although I understand the thinking of hon. Member for East Worthing and Shoreham. I assure him that his amendment does not make much difference to the Secretary of State's power to make regulations about the assessment process. The use of the word ''or'' does not in this case mean that it would be possible to make regulations either only about the type of assessment that was to be carried out, or only the way in which it was to be carried out. I assure the hon. Gentleman that it is possible to make regulations that cover both.

I hope that with those assurances, a further explanation of the legitimate use of ''may'' to provide a permissive power to make regulations, and a commitment from the Government to ensure that the special guardianship support services become a reality after full consultation with stakeholders, the hon. Gentleman will feel able to withdraw his amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I was not optimistic about the Minister's response, but I thought I might give it a go and then have the argument on another day. However, in seeking to make her case more forcefully one more time, the Minister has given us the most appalling arguments that we have yet heard from her.

The Minister said that in requiring the Secretary of State to make regulations, we might bind him to something that he might not be able to deliver, because Parliament might not agree to it. If Parliament believes that regulations that the Secretary of State wants to impose are duff regulations, should it not have the right to say so? That is the thrust of the Minister's argument, and it is another example of the terrible arrogance of a Government who regard Parliament as an encumbrance and a nuisance. They have to go through the processes, but they think that everything should be done by provisional regulations for which they do not even need a Committee's approval.

Julian Brazier (Conservative, Canterbury)

Perhaps we can understand the reasoning behind the Government's decisions on this matter in the light of the highly effective activities of our hon. Friend the Member for Stone (Mr. Cash), who has shown repeatedly that statutory instruments brought before the House are

legally invalid. One of the Ministers in the Room has experienced that at first hand. That may be the reason why they resist the wording that we suggest.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is right.

This debate has greatly annoyed me and it will anger people outside the Committee as well. It is another example of the Government's tendency to deal with as much legislation outside Parliament as possible. The Minister described the situation that would prevail if the amendment were accepted, in which Parliament would have a say in the regulations, as illogical and potentially circular. That is a terrible indictment of the way in which the Government perceive the democratic parliamentary process.

Jacqui Smith (Labour, Redditch)

I am sorry that I did not make myself clear. The Government take precisely the opposite position. If we were to go down the route prescribed by the hon. Gentleman, it could be argued that the Secretary of State is bound to make regulations even if Parliament petitioned to annul them under the negative resolution procedure.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is entirely a matter for Parliament to decide. It is for a Standing Committee to decide how to approach the regulations. However great the Government's majority may be, Parliament has a right to scrutinise regulations that are an essential part of legislation such this Bill. I am afraid that the Minister's arguments are a red rag to a bull.

The Minister continued her circular argument in relation to amendment No. 250. To paraphrase, she said that using the word ''or'' rather than ''and'', as we would like, does not mean that a choice must be made between one option or the other, but that ''or'' could mean ''and''. I understand her remarks to mean that ''or'' does not mean ''or'', but that it can mean ''and''. By that logic, the Bill should use ''and'', which cannot mean one or the other.

That was the logic, or lack thereof, of the Minister's argument. On that basis, and because of the flimsiness of her response on this occasion compared with the rather more robust response to the other amendments in the group, I would like to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Julian Brazier (Conservative, Canterbury)

I beg to move amendment No. 244, in page 60, line 28, at end insert—

'which regulations must at all times bear in mind, that, in general, any delay in provisions of special guardianship support services is likely to prejudice the child's welfare.'.

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

With this it will be convenient to consider amendment No. 255, in page 60, line 42, at end insert—

'as long as the well-being of any person with regard to special guardianship support services is not affected and there is no avoidable delay.'.

Julian Brazier (Conservative, Canterbury)

I shall be brief, because we have to a large extent rounded this buoy already with our corresponding amendments on the issue of resourcing support services for adoption.

The question is whether we want special guardianship orders to work. Such orders deal, in almost every case, with an older child. The majority of adoptions nowadays are not of babies but of older children, and I suspect that special guardianship orders will nearly always be made in respect of older children. The sort of special circumstances that the Committee discussed earlier are more likely to apply to older children. For such children it is even more important that the support services should be in place.

We have already debated the value or lack thereof of providing for an assessment, but not backing it up with resources. Departing from the amendment just for a second, Mr. Stevenson, I am one of those who questioned whether it was worth having a compulsory assessment if there were no compulsory resources. The specific services that the assessment shows are needed will require specific resources, and an overall lack of resources is the only possible reason for refusing to provide them.

The same argument applies with a vengeance to special guardianship orders. There is, however, one additional argument in favour of such orders. I expect the clause stand part debate to be short, because all parties support it. When we come to that debate, I expect that we will be told that most special guardianship orders occur within a few local authorities. That should not be the case, because the decision should be child-centred. However, I suspect that a few local authorities—the same ones that are resistant to adoption—may see such orders as an easy way out.

Certain authorities have, over the years, resisted adoption for various reasons. I could run off a long list of names, but the excellent league table that the Government have been publishing for several years shows clearly who they are. I suspect that, under pressure, they will consider special guardianship orders as an alternative to adoption. I am sorry if that sounds cynical. A particular reason to accept the amendment is that would go some way to create a strong disincentive to consider guardianship orders in such a light. To be blunt, it would mean that the authorities would know that they would have to pay for and resource special guardianship. That would make them think.

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

With respect, the hon. Gentleman is in error. Children are likely to be made the subject of special guardianship when they already have relationships with the adults who are caring for them, but have on-going links with their birth families. They may be older children, or there may be other circumstances that would make it inappropriate to sever those links via adoption. Adoption is a completely different route. The hon. Gentleman's arguments are not supported by that example.

Julian Brazier (Conservative, Canterbury)

I want to reply to both the hon. Lady's points, and do so clearly, but I am in a difficult position, because I find myself wanting to discuss clause stand part before I discuss the individual amendments.

I support the underlying principle of the special guardianship order. Every member of the Committee supports it, as far as I know. It is designed to deal with precisely the kind of circumstances that the hon. Lady has succinctly summarised. We agree on all of that. However, I fear that those authorities that have over the years proved extremely resistant to using adoption—to a scandalous extent, as academic studies and the league tables show—will misuse the provision on special guardianship orders to avoid using adoption. That is my concern.

The extra argument in favour of amendment No. 244, in addition to the arguments analogous to those for the amendments that we tabled on adoption, is that knowing that they will have to provide proper resources will provide local authorities with an incentive to think hard before they send children down that route. That is all that I was saying. I hope that what the hon. Lady said in her intervention is true, but I am not convinced that she is right in respect of every authority.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I support the amendments. It is never a bad thing to remind ourselves of the fact that delay can be detrimental, although perhaps the hon. Member for Canterbury (Mr. Brazier) has fully elucidated the reasoning behind the amendments. I do not say that local authorities will cause, or will want to cause, delay, but it is good if such matters are incorporated in legislation. It reminds practitioners that there is a need for speed, in accordance with the best interests of the child.

Looking at the question of dealing with matters promptly, there is no doubt that delay can prejudice the welfare of a child or young person. The hon. Member for Sheffield, Heeley (Ms Munn) might be right to say that many cases will involve existing relationships. That is all well and good. However, many will not, so there will be situations in which delay could cause harm. The whole Committee agrees on the welfare of the child being the paramount consideration. The provision is another manifestation of our belief that we should look to the welfare of the child or young person.

I was in practice in family law before the enactment of the Children Act 1989. I witnessed a sea change after its introduction. That ground-breaking piece of

legislation has been referred to extensively today, and will be again. The greatest thing about it was that it enshrined the principle that lawyers, social workers and all those involved in the practice of family law should bear in mind that timetables are vital. That, above all, was how it revolutionised the practice of family law. Some of us were a bit laissez faire about when the next court appearance would be; now everything is scheduled. Anyone who appears before a judge on an application without having done his spadework and obtained his reports is in for a rocket, and rightly so; the procedure has been tightened up.

This amendment follows those lines. It is not mischievous; it will not incur any financial penalty. It merely serves as a reminder that delay can be detrimental to the children in these circumstances. Surely that is worthy of further consideration.

Jacqui Smith (Labour, Redditch)

We seem to have gone rather wide of the amendment. The hon. Member for Canterbury has again expressed his concern that special guardianship might be used as a way to avoid using adoption. I understand that concern, and responded to it earlier.

Throughout all our proceedings on the Bill and through the incentives, pressures and signals sent to local authorities, we have made very clear the Government's commitment to increasing the number of adoptions. Our intention is to provide people with an alternative route to security and stability, not to give them a way out of promoting adoption. I hope that the hon. Member for Canterbury recognises that in the light of many of our earlier discussions in which I referred, for example, to the Government's use of the national adoption standards and other measures.

Julian Brazier (Conservative, Canterbury)

Yes, of course I accept that in full. My concern does not stem from the Government's approach or their policy. It is prompted only by the approach of a small number of local authorities. I hope that the Minister will keep a close eye on the good figures and the detailed statistics that are provided. That was my underlying extra point.

Jacqui Smith (Labour, Redditch)

Let us now discuss the points raised by the amendments. Proposed new section 14F makes provision for local authority support services for special guardians and children, subject to special guardianship orders. Under subsection (1), each local authority must arrange to provide support, including counselling, advice and information, and such other services as are prescribed in regulations. The Government intend to use that power to make regulations to ensure that local authorities make available a range of support services, including financial support where appropriate, for special guardians and children subject to special guardianship orders.

Regulations will also be made prescribing the circumstances in which local authorities must, at the request of special guardians and children subject to special guardianship orders, carry out an assessment

of an individual's needs for special guardianship support services. In practice, many of the services for adoption support will be relevant for special guardianship. We are already working on a new framework for adoption support, and will include special guardianship in that consultation.

Subsections (2) to (8) govern the assessment process and, where support services are to be provided, the arrangements for their provision. As with adoption support services, the needs assessment may be carried out at the same time as an individual's assessment for any other purpose. That is one of the ways in which we can overcome the concern about delay represented in the amendment.

For example, it will be appropriate for the assessment for services to happen at the same time as that for suitability. There does not have to be a special guardianship order before the needs assessment can start. It might be a good idea in some cases, so that prospective special guardians have an idea of the type and nature of the support that they would receive. To that extent, an assessment would not hold up the provision of support services; it might well promote it.

I assure the hon. Member for Canterbury that in the guidance that we issue to local authorities on the assessment procedure we shall make clear the need to avoid delay. On the wider issues that he raised, which fall more into the realms of performance management and concerns about services not being delivered properly, I assure him that if there were evidence of a council's failing to meet its statutory obligations or to deliver services as it should, we would take action to ensure that improvements were made. Such action would be decided case by case, depending on the seriousness of the failure. We would hope that, in many cases, performance assessment would have identified a failure in advance. I hope that that reassures him of the seriousness of our desire to ensure that local authorities do not delay the provision of adoption support services and that steps are taken so that that does not happen.

Amendment No. 255 relates to proposed new section 14F (6)(e), which enables regulations to be made setting out the circumstances in which local authorities, subject to conditions, may provide special guardianship support services. We intend to use regulations to enable local authorities to specify, when appropriate, that financial support must be spent on specified items or services. Those provisions are similar to those made for adoption support under clause 4(7)(f). I believe that we discussed examples of when it might be appropriate to set conditions. Financial support could be provided under the regulations on condition that the special guardians did not spend the money in any other way. For example, it might be provided in order to build an extension or to buy a larger vehicle.

Proposed new section 14F(6)(f) enables regulations to be made concerning the consequences of failure to comply with such conditions. We intend to make regulations enabling local authorities to recoup financial support that has not been spent

appropriately. That may be appropriate when a one-off grant has been paid for a specific purpose, but is unlikely to be appropriate for a regular allowance. We will consult stakeholders on the regulations to be made under these subsections to ensure that we get the detail right.

The amendments are not needed. The assessment process is not intended to delay the provision of special guardianship support services. Its purpose is to provide a way into the system, in order to prevent special guardian families from having to struggle to get the help and support that they need. Furthermore, the power to specify certain conditions on the provision of special guardianship support services is not intended in any way to compromise a person's well-being or to cause delay. In light of that explanation, I hope that the hon. Gentleman will withdraw the amendment.

Julian Brazier (Conservative, Canterbury)

I thank the Minister for that explanation. Once again, the amendments propose something that we would like in the Bill rather than in regulations. None the less, she has given us a full range of assurances on the regulations and on one aspect of performance management. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Jonathan Djanogly (Conservative, Huntingdon)

I, like all other hon. Members, support the concept of special guardianship. It will move the debate forward, provide a wider range of powers which will fit more circumstances, and be generally useful. However, the Committee should realise that not everyone feels the same. Indeed, many representations have been made against the clause. It is fit and proper that the problems that have been mentioned should be on the record. It is also fit and proper that the Government should address those problems.

It could be said that the provisions on SGOs could allow a bias against adoption. It has often been said that, in recent years, adoption has increasingly been seen as a measure of last resort. Professor Jackson, in her oral evidence to the Committee, referred to an anti-adoption culture. It is feared that some local authorities will use special guardianship orders to sideline adoption. Special guardianships deprive a child of the security of adoption, because they are not permanent. It is the permanence of adoption that provides the ultimate security for the child.

Julian Brazier (Conservative, Canterbury)

My hon. Friend has recollected for me a point that I raised earlier. We heard evidence that about 30 years ago, in previous adoption legislation, a similar measure was produced, but that it was given up because there was so little interest in it. As someone who supports special guardianship orders in principle, my hon. Friend is right to put the case against them. The academic evidence about them was pretty lukewarm, and it is right that we should have a short discussion on the subject.

Jonathan Djanogly (Conservative, Huntingdon)

For a child previously in care, special guardianship orders, unlike adoption orders, can be discharged by a court at the request of the local authority. Again, that attacks the concept of permanence. If special guardianship orders are to offer a permanence similar to adoption, as the Government have stated, why are the same restrictions not imposed on those who may apply for them? There is not even an upper limit on the number of individuals who can apply for special guardianship orders for the same child.

Furthermore, and finally, statistical evidence suggests that cohabiting couples are four times more likely to break up than married couples. Such relationships are not as stable as marriage. Research also shows that placing children with same-sex couples has an even poorer outcome; and by its very nature it deprives children of either a male or female role model in the home.

Sandra Gidley (Liberal Democrat, Romsey)

I note that the hon. Gentleman is reading from the briefing note supplied by the Christian Institute. I have not seen such evidence. Yes, cohabiting couples are probably more likely to split up, but the hon. Gentleman is not comparing like with like. Many cohabiting couples do not regard their relationship as long term and are not thinking about children. If one isolates those couples who are thinking about children, I suspect that the figures would be different. Where is the evidence that adoption by same-sex couples results in a poor outcome for the children? We heard evidence—I thought that it was powerful—that occasionally children have been successfully placed in that sort of environment. We heard no evidence to the contrary.

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend the Member for Canterbury wants to address the same point.

Julian Brazier (Conservative, Canterbury)

I do not want to bore the Committee by going over ground that we have already covered. I will give the hon. Lady a copy of the Library's 1997 study of the subject. It is based on official statistics, which show that at the 10-year point, 85 per cent. of relationships break up where children are involved—[Interruption.]

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

Order. This sort of vicarious intervention does not help. If hon. Members want to intervene or to catch my eye, they are entitled to do so.

Jonathan Djanogly (Conservative, Huntingdon)

The points made by the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Canterbury are both fair. The evidence suggests that cohabiting couples are more likely to break up than married couples. That is unarguable, and the Government should address the fact.

Jacqui Smith (Labour, Redditch)

At the start of this debate, I spelled out the principles of special guardianship orders and said that they have been well received. However, although the arguments of the hon. Member for Huntingdon (Mr. Djanogly) against special guardianship orders were not strong, it is worth pursuing the matter briefly.

The hon. Gentleman once again said that the introduction of special guardianship orders might create a bias against adoption. As I have said in previous responses, that is most certainly not the Government's intention. Mechanisms are in place that will ensure that even if local authorities were considering the use of special guardianship orders as a way to avoid adoption—I cannot envisage why they would consider that appropriate—there would be ways in which a failure to deliver an increased number of adoptions could be highlighted and monitored. As I have spelled out, the Bill is intended to increase the use of adoption. Special guardianship is an alternative designed to meet the needs of children for whom adoption is not appropriate. As I suggested to the hon. Member for Canterbury, it may equally be seen as a more stable alternative to long-term fostering or a residence order.

The hon. Member for Canterbury raised the issue of why previous attempts to introduce something similar to special guardianship orders had failed. There may have been a variety of reasons why those initiatives were unsuccessful. First, the public perception of what was intended may have affected their success. It is also important to consider possible concerns about the extent to which support services would be provided to people entering into those arrangements. That is why the Government were right to include provisions in the Bill specifically relating to special guardianship support services. The intention is to ensure that, where special guardianship is appropriate but does not happen, the reason for not entering into it does not relate to insufficient support for those who might do so.

Furthermore, several of the Bill's provisions, including those on adoption support, are aimed directly at increasing the use of adoption. I think that everybody across the Committee has recognised that the provisions are important to increasing the number of people who feel able to adopt, which will help more adoptions to last. The independent review mechanism, in giving some right of redress to those people rejected as prospective adopters, will also encourage more people to come forward to adopt. The Adoption and Children Act register will ensure that we bring together, across the country, those who are willing to offer a home to a child and children looking for a home. It will facilitate more and quicker matches for adoption, so that more adoption can happen. Those provisions show that the Government certainly do not have a bias against adoption and have made significant progress in promoting it.

The hon. Member for Huntingdon raised some more points around the issue of special guardianship orders. First, he made the point that there was no upper limit on the number of people who can apply for a special guardianship order. There is no upper limit, but nor is there for other orders such as residence orders. However, it would be very unusual for more than two people to be granted a special guardianship order. Both the assessment process and the court

process would ensure that if an inappropriate number of people were applying for a special guardianship order it would be unlikely that they would get it.

Secondly, the hon. Gentleman raised a point about same-sex couples and special guardianship orders. The argument began with the extent to which it is appropriate for same-sex couples to take out special guardianship orders, but it will be up to the court, in accordance with the principle of the paramountcy of welfare, to make the order. There is no express provision about to whom an order may be made. It could be made to any two people, such as two sisters. Circumstances in which a special guardianship order would be appropriate include those in which the child's extended family have taken on responsibility for him or her. A range of different people could undertake special guardianship orders. The important thing is that it would be up to the court, in accordance with the principle of the paramountcy of welfare, to make the order.

I do not intend again to go over the arguments on the importance of special guardianship orders. As many members of the Committee have said, there is widespread support for the principle of special guardianship orders. There was widespread support in the consultation—the orders are seen as providing an important opportunity for children and young people to gain permanence and stability. In light of that, I hope that hon. Members will feel able to support the clause.

Question put and agreed to.

Clause 110 ordered to stand part of the Bill.

Clause 111 - Inquiries by local authorities into representations

Jacqui Smith (Labour, Redditch)

I beg to move amendment No. 260, in page 62, line 18, at end insert—

'(3B) The duty under subsection (3) extends to representations (including complaints) made to the authority by—

(a) any person mentioned in section 3(1) of the Adoption and Children Act 2002 (persons for whose needs provision is made by the Adoption Service) and any other person to whom arrangements for the provision of adoption support services (within the meaning of that Act) extend,

(b) such other person as the authority consider has sufficient interest in a child who is or may be adopted to warrant his representations being considered by them, about the discharge by the authority of such functions under the Adoption and Children Act 2002 as are specified by the Secretary of State in regulations'.

The clause relates to the changes that the Government are making to the local authority social services complaints procedures. Those procedures have been criticised by the hon. Member for North-West Norfolk, who suggested, perhaps rather unreasonably, that local authorities always set out to stymie complaints. That might have been an extreme criticism, but the procedures have been criticised for being too slow and bureaucratic.

The Government want to speed up the process and make it more effective, particularly for children. That is why the Department undertook a review of social

services complaints procedures in 1999-2000. Following that review, the Department issued a consultation document, ''Listening to People'', in June 2000. That document proposed a range of improvements to the procedures and sought views on them. As a result of that consultation, the Government will make several changes to the procedures, many of which do not require primary legislation. However, in response to the consultation exercise, clause 111 changes the complaints procedure established under the Children Act 1989; it implements the changes that require primary legislation.

It is worth remembering that the Committee has already debated clause 12, which introduces an independent review mechanism concerning adoption. That mechanism is being established, as we discussed, for two specific purposes. It will be used to review adoption agency determinations on the suitability of prospective adopters, thereby building confidence in the adopter-assessment process and encouraging more people to adopt. It will also be used to review determinations made by adoption agencies about the disclosure of information held in their records that identifies third parties. As we discussed last week, that will provide a balance for the adoption agencies' use of discretion on the subject.

Adoption is a mainstream social services function. The majority of complaints about local authority adoption services will therefore most appropriately be dealt with through existing social services complaints procedures. Local authorities operate two distinct but similar complaints procedures in respect of their social services functions. The National Health Service and Community Care Act 1990 inserted into the Local Authority Social Services Act 1970, which is known as the LASS Act, the requirement for social services authorities to establish a complaints procedure for any failure to discharge their social services functions. Section 26(3) of the Children Act 1989 requires all local authorities to establish a procedure to consider representations about the exercise of their functions under part III of that Act made by or on behalf of any children looked after or in need. Therefore, local authorities have a dual process for considering complaints, provided for partly by the LASS Act and partly by the Children Act.

Under the existing legal framework, adoption-related complaints are dealt with by the adult complaints procedure established under the LASS Act. The Government do not believe that that is the appropriate procedure to consider all adoption-related complaints. In some cases, it is appropriate for complaints about local authority adoption services to be dealt with through the adult complaints procedure. When a complaint is made by an adult and does not involve or affect an individual child, it is appropriate for the local authority to use the procedure. However, when children are involved or affected, complaints about local authority adoption services should be dealt with through the Children Act complaints procedure. A complaint made by a child himself or on his behalf should, of course, also be dealt with through that procedure.

It might help if I gave other examples for which the Children Act procedure should be used, as would be achieved under my amendment. A complaint made by an adoptive parent about the package of adoption support services provided to the adoptive family by the local authority should be dealt with through the Children Act procedure, as should a complaint made by a birth parent about a decision taken by the local authority that adoption was in the best interests of his or her child.

The Children Act procedure offers a better process for complaints that involve children than that of the LASS Act, as it involves an independent person to oversee the process and has tighter time scales, which allow children's complaints to be dealt with more quickly. The amendment inserts new subsection (3B) into section 26 of the Children Act. It extends the child-focused Children Act complaints procedure to specified local authority functions under the Bill.

The Government intend to prescribe in regulations the types of adoption-related complaints to which the Children Act complaints procedure should apply. As I have explained, they will all be adoption-related complaints that involve or affect children, or which involved or affected them. Other adoption-related complaints that are not prescribed in the regulations will continue to be dealt with through the LASS Act procedure, as under present arrangements. The Government will issue guidance to local authorities to assist them to determine which complaints procedure should be followed in each case.

All the people listed in clause 3(1) will be entitled under the Children Act procedure to make a complaint about the specified local authority adoption functions. Those people are

''children who may be adopted, their parents and guardians'',

prospective adopters and adopted people, their adoptive parents, birth parents and former guardians. Other people who receive adoption support services from the local authority, such as members of the wider birth family and adoptive siblings, will be able to complain under the Children Act procedure when a child is involved or affected. Similarly, those whom the local authority considers have a sufficient interest in the child concerned, such as its grandparents, will be able to complain.

The provisions are sufficiently flexible to enable adoption-specific requirements to be introduced into the Children Act complaints procedure through regulations, should that be considered appropriate. We will also consider whether it is necessary to introduce any adoption-specific requirements into the adult LASS Act procedure. If it is, we will issue directions accordingly. That will ensure that the local authority social services complaints procedure is as well equipped as possible to meet adoption-related needs.

Given the proposals in clause 111, which improve the breadth and operation of the Children Act complaints procedure, and the fact that the amendment ensures that those procedures apply in

appropriate cases to adoption-related complaints, I hope that hon. Members will feel able to support the amendment.

Hilton Dawson (Labour, Lancaster and Wyre)

I am yet again impressed by the way in which my hon. Friend the Minister has moved an important amendment to such a vital Bill, but does she feel that the amendment and the Bill go as far as we could go? The Government are doing a tremendous job in revising the Children Act, which is what the amendment will do. They have amended it through the Bill and other legislation, such as the Children (Leaving Care) Act 2000, and those changes have put some significant resources into improving the care system. The Government are improving the training, support and standing of staff who work in the system, although there is still a long way to go.

The other important way in which the 1989 Act needs to be developed is in empowering children in the care system, whether they live in residential or foster care, under special guardianship, in adoptive placements or anywhere else. During the past few months in Committee, we have heard a great deal about the rights of the various players in the complicated adoption process, and about the various abilities of people to appeal and make representations. This morning, the rights of potential adoptive applicants were likened to those of people who might want to put up a garden shed. That is all well and good. The adults in the system need opportunities to make representations. However, the most important—and most powerless—people in the process by far are the children.

Is it not time to make a significant amendment to the Children Act by introducing in this Bill a right of independent advocacy for children in care? The Government are well aware of the implications of children living in the care system, where their voices are not heard, their concerns are not properly addressed and they are not empowered. We have seen scandalous situations in care over past decades and we know the appalling conclusions of the Waterhouse inquiry. There are investigations across 17 police authorities into the treatment of children in care.

Surely one of the major lessons to be learned is that children's voices must be heard; children in care who have a concern generally tell the truth. Those children know what is going on. They have a profound understanding of what is happening to themselves in the system, but they need consistent support. Local authorities must have a duty placed on them to ensure that children have that consistent support to enable their voices to be heard. There needs to be a statutory right of independent advocacy and a complaints system that is not time-limited—because complaints from children are tremendously dependent on their age, their maturity, their living situation and their awareness of what they can do to address the problems that they experience. They also need the decisions of adults in the system to be frozen while their situation,

complaint or the problem that they are trying to have addressed, and the actions of local authorities, foster carers and potential adoptive parents are reviewed.

The Government are going a long way in this important Bill, particularly in the amendment to the Children Act complaints procedures, which addresses the crucial issue of empowerment. Introducing a statutory right of independent advocacy for children in care system will profoundly improve what is on offer.

Amendment agreed to.

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

Jacqui Smith (Labour, Redditch)

It might be appropriate for me to respond to some of the points made by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) and to spell out the effect of the amendments to the Children Act that are made through the clause. I have outlined concerns that have been expressed about the bureaucratic process involved in local authority complaints and mentioned the need to widen and streamline some of the provisions in the Children Act complaints procedure.

In response to the ''Listening to People'' consultation exercise, the clause amends the complaints procedure that was established under sections 26 and 24D of the Children Act 1989, which applies only to services provided under part III of that Act—local authority services to families and children. Complaints about other services provided under the Children Act, such as care or supervision orders and matters relating to child protection, are dealt with through the adult complaints procedure established under the LASS Act, which I described when I spoke about the amendment. We consider that that is an anomaly and that we need to extend the more child-focused Children Act procedure to all complaints and representations about the discharge of local authority functions under the Children Act, and therefore to many of our most vulnerable children. The clause, therefore, extends the Children Act complaints procedure to complaints and representations about the discharge of local authority functions under parts IV and V of the Children Act, which cover care and supervision and child protection respectively.

The effect will be that the Children Act procedure will be extended to cover matters such as the way in which a local authority has approached decisions to apply for care or supervision orders, the functioning of a child protection conference, the discharge of the local authority's duty to make investigations under section 47 of the Children Act and the local authority's role in applications for child assessment in emergency protection orders under sections 43 and 44 of that Act. The main advantage of the change will be to ensure a robust approach to all complaints made by or concerning children, not just those concerning services provided under part III.

The extended Children Act procedure will be a better means of dealing with complaints involving children than the LASS Act procedure because it involves an independent person to oversee the process

and has tighter time scales, allowing children's complaints to be dealt with more quickly. The clause also amends the Children Act in order to enable regulations to be made imposing time limits— there are currently none—for the making of representations under that Act, which was one of the points raised by my hon. Friend. It is intended to introduce a 12-month time limit for eligibility to make a complaint. The Government's aim is to set a reasonable time limit, so that the matters complained about have a reasonable prospect of remedy.

I accept my hon. Friend's point about the particular nature of children's complaints, but it is important to recognise that if we are to make the Children Act procedure as effective as possible, we need to ensure that it is able to focus on those complaints for which a remedy is achievable. That is a strong argument for introducing a time limit. Although we would expect the 12-month limit to be the norm, local authorities will be given discretion to look into older issues. That would not normally extend to investigating complaints about matters that occurred many years ago, but could cover cases in which, as my hon. Friend suggested, because of the nature or circumstances of the complaint, a child has taken longer than 12 months to come forward, and it is still possible to remedy the problem.

The clause also makes a mainly technical amendment to the Children Act regulations to enable the introduction of an effective, informal resolution stage into the Children Act complaints procedure. An informal resolution stage, similar to the local resolutions stage in the NHS complaints procedure, is already required by the adult complaints procedure established under the LASS Act.

In practice, local authorities often operate an initial problem-solving stage, resulting in lengthy investigations before the complaint is dealt with formally. We are able to introduce an informal resolution stage to the powers in the Children Act by means of regulations, and we propose that it should have a tight, 14-day time scale because it is especially important for children to have their concerns dealt with quickly. Without that amendment to the Act, the informal stage would have to involve an independent person—that is currently required for the whole procedure—which is one advantage of the Children Act procedure, but means that a short-focus informal resolution of the sort that we want is not always possible.

Robert Walter (Conservative, North Dorset)

I seek the Minister's clarification. Does she envisage those procedures relating solely to England? The Children's Commissioner for Wales might be an independent party to whom the child or another party might complain, and he might have instituted an investigation relating to the child's complaint. The sort of complaint procedures that the Minister has mentioned might not be relevant in Wales, although the Bill applies equally to England and Wales.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman is right: this procedure and the changes that we are making to the Children Act complaints procedure relate to England and Wales. He raises an interesting point about the role of the Children's Commissioner, but it does not undermine what I have said about the improvements to the Children Act procedures, because they already run alongside the work of the Children's Commissioner for Wales. I shall bear in mind what the hon. Gentleman said.

I wanted to respond to the plea made by my hon. Friend the Member for Lancaster and Wyre about the child having a voice in the complaints process. He will, I am sure, be aware that one of the important objectives of the quality protects programme, which is supported by £885 million, is the development of advocacy services. Progress has been made, but the provision and quality of advocacy is still too patchy, and it is something that many councils still have to develop. Much more needs to be done to ensure that the voices of vulnerable children are heard.

In this year's quality protects management action plans, we continue to ask councils to develop their independent advocacy services and improve their complaints procedures. As those advocacy services are developed, it is important that good quality services are made available to children, which is why we are keen to promote the use of national advocacy standards. Standards have been drafted to develop better and more consistent standards, and we intend to consult on them in the near future. I would also point out that the role of the children's rights director, introduced under the Care Standards Act 2000, is to respond to those children who most need a champion. We plan shortly to put the draft regulations covering the work, key tasks and responsibilities of the director out for public consultation.

My hon. Friend also pushed me on the question of advocacy for looked-after children. I have significant sympathy with him on that, because children and young people who are being looked after can be especially vulnerable when they want to raise problems or concerns. The Government want to safeguard such children, and we want to strengthen further advocacy services for looked-after children when they make a complaint under section 26 of the Children Act.

We will be consulting further on these issues, and will then develop a clear action plan informed by the responses received in order to drive through the necessary changes. Those changes will, I believe, go a considerable way to achieving my hon. Friend's demands. The consultation will include exploring the possibility of introducing a joint system between children's social services and developments in the national health service. With the creation of the independent complaints advocacy service for people who want to complain about the treatment or service that they receive, we have taken considerable steps in providing advocacy for people who want to complain. Therefore, it is appropriate that we make much further progress on children's ability to access advocacy.

I hope that that response reassures my hon. Friend and that members of the Committee will feel able to support clause 111.

Question put and agreed to.

Clause 111, as amended, ordered to stand part of the Bill.

Clause 112 - Care plans

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 252, in page 63, line 11, at end insert

'and reference should be made to all relevant departments within that authority.'.

This is a small, probing amendment, and I am sure that we can dispatch it more quickly than we did previous amendments. Care orders, which we support, should take into account all local authority departments and not assume that the only department involved is social services. Several briefings submitted to the Committee made that point, including that of Barnardo's.

The social services department is often regarded as the only department that deals with care orders, and it is considered that the remit of those care orders does not go beyond that department. However, the local authority as a whole has a corporate parenting responsibility for the child under a care order, so the effects of that care order should entail the education department of a local authority—[Interruption.] I think that we have the agreement of Labour Members. Such involvement is especially necessary when dealing with learning difficulties, which is why we seek to add the requirement that reference should be made to all relevant departments in the appropriate authority. That would mean going beyond the social services department to deal with education, and possibly housing and other matters. I believe that there is a requirement to define duties of local authorities across boundaries, when a cross-boundary placement is involved. That is the thrust of the amendment.

The British Association of Social Workers raised another consideration: apparently, the requirement for a care plan as worded in the clause will also apply if the local authority applies for a supervision order. In that circumstance, the local authority would not be responsible for the child's care. Will the Minister clear up that anomaly?

Jacqui Smith (Labour, Redditch)

The clause is concerned with making plans for a child while care proceedings are pending, when a care order is in force. Such planning is through the drawing up of a care plan by the responsible local authority in consultation with the child, his parents and other important agencies in his life. The purpose of the plan is to set out in writing how the child's welfare should be safeguarded and promoted. It is designed to prevent drift. It is designed to prevent drift—[Interruption.] The provision is very important, so I thought it was worth repeating. It

should help to focus work with the families and child. The plan will set out objectives for the placement, how they will be met and in what time scales. The plan is then revisited and, if necessary, revised and updated at each of the child's statutory reviews to ensure that his or her needs are continually monitored, and that work with the child and family continues to meet those needs.

The requirement for the court to consider a care plan prepared by the local authority when making a care order is in effect already entrenched in local authority and court practices, through case law and guidance. However, a recent judgment by the Court of Appeal in the case of Re:W and W&B highlighted that children's fundamental human rights can be breached by the non-implementation of a care plan. As part of the Government's response to that judgment, and given that the making of a full care order is a fundamental intervention by the court into a child's article 8 rights—the respect for private and family life rights—we consider it desirable to ensure that care plans that provide for the future of such children have a basis in primary legislation.

The clause therefore amends section 31 of the Children Act 1989, to provide that a court may not make a care order until a care plan has been prepared by the local authority and considered by the court. It also inserts a new section 31A into the 1989 Act, to place a duty on the local authority to prepare a care plan within a time scale set by the court. The authority must also keep the plan under review while the application is pending and once an order has been made and remains in force. Regulations made under new section 31(3A) will set out how the plan is to be drawn up and the information to be included. The clause strengthens the requirement on local authorities, which will ensure that such significant intervention in a child's family life is the subject of proper planning that has a statutory basis and is regulated so that intervention is proper and proportionate.

The hon. Gentleman's amendment is aimed at ensuring joined-up working on care plans in councils with social services responsibilities. All hon. Members would agree that it is important that such working occurs, so I have some sympathy with the intention behind the amendment. Care planning is crucial in the preparation of a local authority's application to court for a care order under section 31 of the 1989 Act, because the care plan explains how the proposed care order will be implemented to achieve specific outcomes for the child.

Care planning is so important that local authority circular LAC(99)29 sets out clearly that the care plan presented by the local authority is

''intended to be an authoritative statement made in good faith about the child's needs, the best way of responding to those needs, and the detailed arrangements setting out how the local authority will provide services to promote and protect the child's welfare whilst he or she is the subject of the care order . . . That commitment may require input from a range of services and may have far-reaching resource implications. These will always include the social services but in many cases may also involve an input

from health and education. If this is the case, an agreement should have been reached with these agencies in respect of services included in the care plan.''

The Government obviously consider it extremely important for different departments in the local authority to work together in drawing up a care plan, which is why the guidance on the subject spells that out so clearly. However, it is equally clear that it may be as important to involve services and agencies outside the local authority, such as the relevant health service bodies or even another local authority. Such involvement would not be covered by the amendment, which might therefore inadvertently serve to weaken the expectations on bodies other than the local authority itself.

Primary legislation would not be the right place to impose requirements on different local authority departments to consult each other when drawing up a primary care plan. Instead, we shall issue guidance to councils with social services responsibilities. That will probably take the form of a circular to update LAC(99)29, setting out best practice and repeating the terms of LAC(99)29 on agreements with other agencies.

On the hon. Gentleman's point about supervision orders, the provision applies only to care orders. If he wants further information about why that is the case, I shall be willing to send it to him. In the light of that explanation, however, I hope that he will withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Minister for that detailed response, although had she been performing on ''Just a Minute'', the buzzers would have been red raw because of her deviation, hesitation and repetition.

I agree that the thrust of the amendment is to ensure joined-up working between the relevant departments. The Minister rightly said that joined-up working could go beyond the parameters of the departments in the responsible local authority, and that is certainly true of local health provision.

I said that the amendment was probing, and the Minister assured the Committee that the necessary requirements are spelled out extensively in guidance. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 112 ordered to stand part of the Bill.

New Clause 9 - Registration of private foster parents

Jonathan R Shaw (Labour, Chatham and Aylesford)

I beg to move, That the clause be read a Second time.

New clause 9 is in my name and that of my hon. Friend the Member for Lancaster and Wyre and the hon. Member for Meirionnydd Nant Conwy. It would replace section 69 of the Children Act, which provides for the inspection of privately fostered children. It would provide better protection for a vulnerable group of children and allow parents to obtain information so that they could make informed choices about whom they placed their children with. I shall examine the current legislation, discuss why it needs replacing and detail what the new clause would do.

Section 69 relates to the private fostering of children up to 16 years old or, where they have special needs or are disabled, up to 18 years old. Such children are cared for by someone other than their relatives, which means their grandparents, siblings, step-parents, blood aunts and uncles or other persons with parental responsibility. The Act places a duty on the parent or the carer to notify the intention to place a child. The number of children that a private foster carer can look after is limited to three. Regulations require local authorities regularly to visit children and their private foster carers to satisfy themselves that the children's welfare is promoted and that they are safeguarded.

In the landmark report ''People Like Us'' on the review of safeguards for children who live away from home, Sir William Utting, chairman of the review said:

''It was plain to the review that private fostering was among the least controlled and the most open to abuse of all environments in which children lived away from home.''

We should think about the environments in which children live away from home—residential homes in the private and public sectors, private schools and foster care homes in the local authority and independent sectors. There are many scenarios, but for children who are privately fostered, such places are among the most dangerous. While there, they will be

more open to abuse, because we know that determined abusers will seek out places where controls and external scrutiny are weak.

During his presentation of the social services White Paper, the then Secretary of State for Health, my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson), talked of our responsibility to protect children. We cannot blame local authorities or adoption agencies for past failings: we all have a responsibility. Whatever our position—as Members of Parliament, Governments of all political persuasions, councillors, the neighbour who chooses to turn his head and not report something—we share that responsibility. That is what the Bill is about. We are here today to promote the welfare of children, and to safeguard those who are vulnerable. The Department believes—it has had about 12 years to consider the matter—that the present law is sufficient to allow local authorities to inspect privately fostered children, and that it is the responsibility of local authorities to do so. I wonder whether local authorities have the tools properly to do that job.

My starting position is, of course, that the Government are right. My good colleague the Minister, too, is always right. However, occasionally—just once in a while—there might be a seed of doubt about a particular policy. Perhaps there is a seed of doubt about section 69 of the Children Act. I hope that there is a seed of doubt in my hon. Friend's mind, and I hope that it will grow during the next few minutes. Let us go back to 1871.

Tim Loughton (Conservative, East Worthing and Shoreham)

Oh no.

Jonathan R Shaw (Labour, Chatham and Aylesford)

We were not under Tory rule. The Liberals were in power. The trial and execution of a Mrs. Walters for the murder of several children lead to a Select Committee inquiring into the protection of infant life. The Committee, which was in some ways our predecessor, discovered a widespread system of baby farming, and a year later a law was passed that gave children more protection. Baby farming was then what in certain circumstances private fostering can be now. Concern was expressed for the first time in 1871 about children being privately fostered.

I know that the Department is concerned about privately fostered children—so concerned that last year it issued a pamphlet, ''Private Fostering: A Cause for Concern''. That was in response to the Utting report. It was suggested that there would be a campaign of awareness about the responsibility of both parent and carer to notify the local authority that a child was to be placed. It took two years, following the presentation of the Utting report to Parliament, to produce a pamphlet about cause for concern.

The Government also said:

''When parliamentary time allows, legislation will be introduced to target private fostering regulations at placements . . . lasting more than 42 days''.

They said that they would

''work with a range of agencies to draw up a code of practice for language schools bringing children from overseas.''

We heard a relevant example from the hon. Member for Canterbury. The Government are right to run an awareness campaign and to introduce measures and to work with other agencies. We have had the pamphlet—the one that took two years—but we have not had the parliamentary time for dealing with placements of 42 days or more.

Earlier, the Care Standards Act 2000 was mentioned. I stood in this Room two years ago on the Committee dealing with that Bill, arguing the same points. The Children (Leaving Care) Act 2000 has also been passed, but parliamentary time has not been provided. Now we have the Adoption and Children Bill. Will it provide for time to deal with the regulations to target placements in which children are privately fostered for 42 days or more?

How many children are we concerned about; how many children are privately fostered? In her letter to professionals as part of the awareness campaign to ensure that private foster carers would notify the local authority, the chief inspector of social services estimated that between 8,000 and 10,000 children were privately fostered. She stated that

''it is likely that more than 50 per cent. of private foster placements are not notified''

to the local authority in accordance with section 69 of the Children Act 1989. Some 5,000 children could be living with schedule 1 offenders—who knows? I am sure that many of them are not, but that is not the point. The culture of non-registration, as Utting said, makes those children one of the most vulnerable groups. As we know, paedophiles and abusers seek out the gaps and focus on them. We have passed much legislation to close the net on potential paedophiles, but in this instance it is open.

That is such a contrast to the rest of the legislation. Let us not forget that we register child minders. If I take my child to someone at the beginning of the day and bring them home at the end of the day, that person must have registered, yet I can give my child to someone for years and that person need not be part of a registration scheme. The fact is that 50 per cent. of private foster carers do not bother to notify the local authority.

Where does the figure of 8,000 to 10,000 children come from? In 1991, the Department of Health ceased to collect the figures because they were unreliable and inaccurate. The local authorities agreed; they could not be sure about the accuracy and reliability of those figures. The right figure could be 8,000 or a lot more. We do not know. That is the point. We do not know about potentially vulnerable looked-after children. The case of Victoria Climbie is a stark example of a child who was privately fostered in a vulnerable situation. Now an inquiry is investigating her death. It has been said that she was placed with an aunt, but the woman in question was not a blood aunt under the requirements of section 69. Victoria Climbie was a privately fostered child.

We heard evidence from a range of different agencies during the evidence-taking sittings. Although the hon. Member for Canterbury and I have argued

about some witnesses' testimony, he will surely agree that none of the witnesses, other than those from the Department of Health, believed that the arrangements were satisfactory. Representatives of the Local Government Association and the Association of Directors of Social Services said that it was inadequate. I asked the ADSS whether, considering the huge amount of legislation that local authorities are having to implement, requiring private foster carers to register with the local authority would be the most arduous task that they had ever performed. The answer was no, it certainly would not be.

Privately fostered children are hidden; we do not know how many there are and we do not know what is happening. However, we find out through tragic cases such as the one that I just mentioned. To help the Committee—to try to lift the lid for hon. Members—I shall quote from ''A Very Private Practice'', a recent British Agencies for Adoption and Fostering publication. The report deals, among other matters, with the case of Carl and Eric. It states:

''Carl Williams was 18 months old when Marcia, his mother, placed him with Audrey Simmons, a family friend and fellow Jamaican. It was believed that Marcia Williams was deported to Jamaica for drug offences. Carl's father, Edmund Collins, who was not married to his mother, was believed to be living in London. Eric Francis was also 18 months when he joined Carl in Audrey Simmons' care when Ellen, his mother, was imprisoned, also for drug offences. She, too, was deported upon her release. Eric's father was unknown.

Audrey Simmons had no parental responsibility for either boy and allegations of physical abuse were made. In January this year (2001) Eric said that she hit him with an iron bar and a belt. Medical examinations of both boys showed a number of scars and bruises consistent with their being mistreated. Carl said that Audrey Simmons hit them but denied the assaults which Eric claimed happened. Carl wants to return to live with Audrey; Eric refuses all contact. The boys were placed in the care of the local authority, under an interim care order.''

That is one of the many such examples given in the report. I encourage hon. Members to read it. It lifts the lid on the situation of between 8,000 and 10,000 children, although I repeat that local authorities are not notified of 50 per cent. of such private fostering arrangements. We register childminders, we close the net everywhere, but privately fostered children are not given the protection afforded to others. The situation is far from satisfactory. The principle of the registration scheme would deal with the inadequate protection of such children.

During the evidence-gathering sittings, my hon. Friend the Minister asked questions such as, ''Would a registration scheme work? What difference would it make? Would it mean that the problem would go underground?'' If 50 per cent. are not notifying, we can hardly argue that it is above board at the moment. Parents would have greater power if their local authorities had lists of approved private foster carers who had been subject to police checks and had not committed offences that would disqualify them. We would want a campaign to promote awareness of that in west Africa, where there is the largest single group of children who are privately fostered.

Julian Brazier (Conservative, Canterbury)

I suspect that the hon. Gentleman is approaching his peroration. Before he concludes, please will he clarify whether he is happy that the new clause—for which he is making a powerful case—appears to extend to everybody, including relatives? Presumably, it is not his intention that it should include people living with close relatives such as granny—or does he intend to include them as well?

Jonathan R Shaw (Labour, Chatham and Aylesford)

I am grateful to the hon. Gentleman. I was about to say that the drafting of my new clause is not perfect. I welcome improvements where they are needed. We do not want to require everybody to register, and the examples that he has given are pertinent. However, the principle of registration is important.

As only 50 per cent. notify—no doubt it varies from area to area—a registration scheme would do away with what is effectively a level playing field for good private foster carers and paedophiles. How is a parent meant to make a choice when a list is not kept of half of them? We must bring about a change of culture. There is now an expectation that child minders register. If we launched a campaign in parts of west Africa and it became ingrained in the community that registration as a private foster carer was expected, a far from satisfactory situation would improve.

A registration scheme is not a panacea. I do not believe that it will solve all the problems overnight and that we shall not see any more tragic cases. As responsible parliamentarians—in the light of the cases of Kimberley Carlisle, Jasmine Beckford and Victoria Climbie and of the Utting report—we should be able to put our hands on our hearts and say that we knew that we could not cover every eventuality but that we did our best. The Government can do their best by doing what they said in response to the Utting report that they would do and at least consider the 42-days proposal.

I have spoken on the matter numerous times, and I do so not from a theoretical standpoint but with some 10 years' experience in social services. I hope that my hon. Friend the Minister will offer us in her reply a chance for further discussion, particularly in the light of the opportunities that the Government have not taken to provide parliamentary time, despite their positive indication that they would do so.

Tim Loughton (Conservative, East Worthing and Shoreham)

I do not want to talk at length, but I should like to put it on record that the Opposition have a good deal of sympathy for the intentions that the hon. Gentleman has just expressed so eloquently, and with great experience and form on the subject. He was optimistic in identifying the number of children in private fostering as between 8,000 and 10,000. I suspect that the problem is far greater, although we do not know. Given experiences in my county of West Sussex, there is a specific problem with west African young girls who turn up at Gatwick airport, mostly from Nigeria and Sierra Leone. Many arrive on their own and are then placed in care, but many others go unregistered and unnoticed by the social services

department and end up in highly unsatisfactory and dubious private foster arrangements. I echo the hon. Gentleman's comments.

The problem has already gone underground, so to introduce some registration scheme would be to close the door after the horse had bolted. We need to tackle the problem afresh. It is not disputed that child minders be expected to register, which has become part of the natural process, and we have far greater recourse to police checks now. There are other measures, such as the register that the Government have rightly set up to check people who come into contact with young people through youth work. Various checks are in place for all sorts of other contact between young people and individuals who may have had problems in their past.

Julian Brazier (Conservative, Canterbury)

What my hon. Friend has just said goes to the heart of the matter. As a first step forward—perhaps the only one—before moving to the wider issue of registration, the introduction of police checks would be important and worth while. They have

already been introduced successfully in Kent for people who come over on school placements, and every school in east Kent now collaborates.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is an important point. We can learn lessons from what has happened in the county shared by my hon. Friend and the hon. Member for Chatham and Aylesford (Mr. Shaw).

The bottom line is whether the new clause in its current form is workable. The hon. Member for Chatham and Aylesford had the good grace to admit that it was a bit rusty and would need great improvement. It certainly needs to be improved in how it deals with blood relatives, which is a completely different kettle of fish. Not for the first time, the hon. Gentleman has started a useful debate and it is appropriate that the subject be raised again in Committee. Subject to reservations on how the new clause would be brought into practice, its principle has a deal of merit, for which I commend him.

Debate adjourned.—[Angela Smith.]

Adjourned accordingly at three minutes to Seven o'clock till Thursday 17 January at half-past Nine o'clock.