Children and Families Bill

Lord Nash Excerpts

Wednesday 9th October 2013 Grand Committee

Moved by

[Lord Nash]

1: Clause 1, page 1, leave out lines 8 to 12 and insert—
““(9ZA) Subsection (9A) applies (subject to subsection (9B)) where the local authority are a local authority in England and—
(a) are considering adoption for C, or(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.(9A) Where this subsection applies—
(a) subsections (7) to (9) do not apply to the local authority,(b) the local authority must consider placing C with an individual within subsection (6)(a), and(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.(9B) Subsection (9A) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.””

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, I shall speak to the government amendment to Clause 1. I start by thanking the adoption Select Committee for its invaluable contribution to the proposals under consideration today. I am also grateful to all those noble Peers who, over the summer, gave me the somewhat backhanded encouragement, “Don’t worry, everybody wants this Bill, it’s fantastic—but you’ll still get plenty of amendments”. They were right. I have also been most struck by the level of passionate, professional and rigorous scrutiny that the Bill—my first—is receiving in your Lordships’ House. The committee’s thoughtful and thorough consideration has helped to shape Clause 1 in a way that will better meet the needs of vulnerable children.

The key aspect of the Government’s adoption reform programme is to reduce delay for children needing adoption so that they are able to move in with their potential adopters earlier than they currently do. Fostering for adoption has the potential to achieve this. Clause 1 imposes a duty on a local authority to consider placing a looked-after child for whom the local authority is considering adoption with foster carers who are also approved prospective adopters. This is a fostering placement that, subject to a placement order or parental consent, may become an adoptive placement. Highly respected organisations in the adoption field, such as Coram, Barnardo’s and the British Association for Adoption and Fostering have expressed their support for this policy.

However, while we have tried to draft the clause in the way we consider most appropriate, concerns about it were raised during the debate in the other place. Many felt that the clause disapplied the duty to give preference to a placement with family and friends and that, as a result, it would encourage social workers to overlook this type of placement. Ministers made it clear that it was not the Government’s policy to exclude family and friends, whose role in caring for these children we highly value. The Government have carefully considered these comments, as the Minister for Children and Families said he would. I now seek to amend the clause to put it beyond doubt that before a local authority considers a fostering for adoption placement, it must have explored placement with relatives and decided that it is not the most appropriate placement for the child. I hope noble Lords will agree that this amendment is appropriate. I beg to move.

[The Deputy Chairman of Committees]

My Lords, I must advise your Lordships that if this amendment is agreed to, I will not be able to call Amendments 4 to 8 because of pre-emption.

Amendment 2 (to Amendment 1)

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to make a brief intervention. I welcome the Minister to his current position. He is not the only new boy; I am a new boy to this subject, although not to this House. I declare an interest in that I sit as a family magistrate, and I have been doing that for about one year now so I regard myself as new to the subject.

I had not intended to speak to this group of amendments but I want to make one point: in my experience, the use of parallel planning for younger children is extremely beneficial. The far more experienced magistrates and district judges who I sit with have told me many times over the past year how effective parallel planning can be. I heard what the noble Baroness, Lady Howarth, said about the problems of extending parallel planning and how it needs to be carefully looked at, but from what I have seen there would be far more benefit in doing that. It is certainly the case, and I am sorry to have to say this, that you come across wider family groups who have a lot of experience of the family courts and—I use this expression deliberately—know how to play the system. They know how to extend it again and again before the courts make their final decision. If you can have an element of parallel planning in this, that is for the benefit of the child. I will leave it there. That is the point that I wanted to make in support of Amendment 10.

[Lord Nash]

I am grateful to noble Lords for their kind welcome as we start our consideration of this very important Bill. I welcome their challenges and questions as we all seek to do our very best for the children who may be the most vulnerable in our society. We have had a very good discussion and I hope that I can provide some clarification on some of the points. I am happy to write to noble Lords about any issues that I do not pick up, of which I am sure there will be a few.

Turning to the first point made by the noble Baroness, Lady Hughes, local authorities have a duty to place a child with the most appropriate placement available and one which best safeguards the child’s welfare. If a local authority is unable to make arrangements for the child to return home, then it must look for someone else who is able to care for the child. This might be through a placement with friends and family. At this point, the local authority must give preference to suitable family and friends carers.

Where there are no suitable family or friends carers able to care for the child, the local authority must make alternative plans for the child outside the family. If adoption is a possible option, then the clause requires the local authority to consider a placement with approved adopters who are also approved foster carers. They will foster the child until the court makes a placement order. In some cases, the local authority will be working to rehabilitate the child with the birth family, with adoption as the alternative if that is not successful. If it is successful, the child will leave the FFA placement and return home. The clause specifically requires that the local authority must first consider family and friends care before going on to consider FFA. At this point, the clause disapplies the duty to give preference to family and friend carers because before considering fostering for adoption, the local authority will already have considered whether the child can return home and, if not, have considered suitable family and friend carers.

However, if a family or friend carer emerges at this stage or after the child has been placed in an FFA placement, the local authority must consider them. If placement with these family or friend carers is the most appropriate for the child, the local authority must move the child. We must remember that this is a duty to consider fostering for adoption, not to place. It will not be suitable for all children but for those for whom it is right, it allows them to move in with their potential permanent family much earlier.

In Amendment 10 the noble Baronesses, Lady Hughes and Lady Jones, propose a duty to seek to identify a family or friend carer when a local authority has concluded that a child should be looked after but before applying for the care order. There is the potential that this could lead to a delay in making a care order application for a child who may be in danger of significant harm. This would be contrary to the duty of the local authority to safeguard and promote that child’s welfare. It is a principle of the Children Act 1989 that the local authority must first look to place a looked-after child with a family and friends carer, as I have said, if they are unable to be returned to their parents. It is of course right that the child should be kept safe while arrangements are made for an appropriate placement.

I agree that establishing what family support is available is essential in pre-proceedings. Family group conferences are one particular way of achieving this. This Government are committed to the use of family group conferences at all stages of the involvement of children’s services with families. We are currently funding the Family Rights Group over a two-year period to implement a framework of accreditation. However, we would not wish to make them compulsory as they will not be suitable for all families in all circumstances, not least because the families themselves must agree to one.

It is clear, and understandably so, that the noble Baronesses’ proposed clause has been prompted in part by the concern that more rapid proceedings might make it difficult for family members to put themselves forward to care for a child. However, we have put in place the necessary measures to allow for extensions to care proceedings and for them to be resolved justly. There is no limit on the number of extensions that can be granted. I hope that the noble Baronesses will feel reassured by this and consider that a new clause would not be necessary.

On Amendment 8, regarding placements with siblings, I spoke briefly about the first part of this amendment. With regard to its second part and the points made by the noble Baronesses, Lady Hughes and Lady Jones, about siblings, it might be that in some circumstances it would be in the child’s best interest to be placed with or near a sibling. However, we are talking about the placement of a child with foster parents who may go on to adopt him. It will not always be the case that adoption is being considered as an option for the child’s sibling. It may not be in his or her best interests to be adopted together with a sibling. It must be for the local authority in each case to decide what is in the best interests and what is the most appropriate placement for each child in a sibling group. I hope that the noble Baronesses will agree that Amendment 8 would therefore not be appropriate in this context.

I turn to the trigger point for the duty to consider fostering for adoption. A number of arguments have been put forward about the point at which the duty should bite. Your Lordships will have seen that the government amendment enables a fostering for adoption placement to be considered from the point when the local authority starts to think about adoption as an option for the child to the point at which the local authority is authorised to place the child for adoption with prospective adopters. We believe that this will enable local authorities to consider fostering for adoption for a child at any point during the care journey for children for whom this type of placement is appropriate. This is consistent with other early placement practices such as concurrent planning—a practice that the Select Committee recommended should be promoted more widely.

What is meant by “considering adoption”? The term comes from the Adoption Agencies Regulations 2005 and its concept is very familiar to adoption agencies. “Considering adoption” means considering it as an option for the child. A local authority may be considering adoption at different stages during a child’s care journey. In some rare cases, it might even be before the child comes into care or, as in a concurrent planning scenario, where the local authority is working with the birth parents to return the child home but has adoption as the alternative plan should rehabilitation fail. In some cases adoption will be the only option being considered and in others it will be one of several.

I appreciate the concerns raised about the term “considering adoption”, which some feel might be misinterpreted and lead to rushed decisions about whether adoption is an appropriate option before all other options have been carefully assessed. The clause requires that when a local authority is considering adoption as an option it also considers fostering for adoption. It will be for the local authority in each case to decide whether the chances of the child going on to be placed for adoption are sufficiently high for a fostering for adoption placement to be the most appropriate one for him or her. Cases where there is robust evidence and background history about the child’s birth family could support the need for such radical intervention. Using “considering adoption” as the trigger would also cover concurrent planning cases.

We have explained in more detail what is meant by the term “considering adoption” in draft statutory guidance, which the Minister for Children and Families promised to provide. We will consult on the draft guidance soon and would welcome all comments on how it could be improved. Amendments 4, 5 and 9 propose alternative trigger points. I hope that the noble Baronesses will agree that the government amendment best delivers on the objective of the policy and will agree not to press their amendments.

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[Baroness Benjamin (LD)]

My Lords, I support the amendment. Living in Britain as a culturally diverse person can be very challenging and you need to be well prepared to face the challenges and adversities, which can be never-ending, even if you are living with your birth family. When you are different, you have to be confident about who you are as a person.

Since I spoke about this issue at Second Reading, I have been contacted by those who are for and against my stance that “due consideration” of a child’s religious persuasion, racial origin and cultural background when being placed for adoption should not be removed but should be included as an important part of the Bill.

We all agree that adoption between races adds another invaluable dimension to the adoption experience which cannot be ignored, because living in a loving family is priceless. However, the evidence points to ethnic background being a significant factor which cannot be ignored, and this has been said to me over the past few months by both children and adults who have been adopted. That is why I believe that social workers need to ensure that prospective carers can respond positively to the ethnic background of the child and consider what implications this may have as they grow up, especially during their adolescence, reflecting on their identity and heritage.

The British-Chinese adoption study by the British Association for Adoption and Fostering in 2012 found that this was an important consideration among young Chinese people who were placed with families with whom they could not identify, unlike the story that my noble friend has just told about the little girl whom her family has adopted. If a child experiences racism or rejection because of their religion or culture, they may feel isolated and not able to share this with anyone within the family. Being visibly different from family members can also result in a sense of feeling as though you do not belong, along with a loss of confidence, which I mentioned earlier.

I know that the Government recognise this as an important factor, but I believe that we are in dangerous territory if we remove consideration of it altogether from legislation. Do we really understand what the impact of these changes would be? Do we really understand what would happen and the message that we would be sending out? Nothing that has been said to me can convince me that such consideration by a court or adoption agency when coming to a decision relating to the adoption of a child is not important. Social workers need to be sensitive to this factor and to work with parents, who need to be able to understand the identity of the child they are adopting. This should not be a stand-alone but should be included in the child’s welfare checklist along with religion, culture and language, as so passionately put by the noble and learned Baroness, Lady Butler-Sloss, and as recommended by the House of Lords Select Committee on Adoption Legislation. It should not be the be all and end all, and nor should all the emphasis be placed on it, but it should be considered.

Equally important is the need to encourage more diverse families to become adoptive parents. That is not something that many people from diverse backgrounds consider, but there are ways in which we can make people realise that they can play an important part in our community.

We also need to improve the long-term stability for culturally diverse children by helping to boost permanence for these children beyond adoption, and the consideration of kinship care and long-term foster care. That is why I believe that everyone needs to support this amendment, for the sake of the well-being of the children whom I speak about who feel that they want to be part of this society and feel as if they belong.

[Lord Nash]

My Lords, a number of moving contributions have been made to this debate, particularly by my noble friends Lady Perry and Lady Walmsley. I know that we are all trying to find the right way forward in a difficult area. The noble and learned Baroness, Lady Butler-Sloss, is vastly experienced in these matters, and I hesitate to gainsay her. The noble Baroness, Lady Young, asked for some evidence. I would like to provide some, underline what is behind the Government’s position and reaffirm that my department’s main aim is to ensure that all children, whatever their background or race, achieve the best start in life.

The Government’s concerns about this can best be summed up in the simple equation that once they have entered the care system, white children are three times as likely to be adopted as black children who have entered the system. Some 6% of white children in care are adopted while 2% of black children are adopted. This is a fact.

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[Lord Nash]

Six per cent of white children in care are adopted while 2% of black children in care are adopted. That is a fact that should make all of us angry. The average length of time that it takes for a child to be adopted from entering the care system is two years and seven months, but for black children it is three years and eight months. That statistic of course conceals the fact that many children are never adopted at all.

It is worse than that, though, because all the evidence is that, generally, the younger a child enters the care system, the more likely they are to be adopted. Black children in fact enter the care system four months earlier than white children, on average as babies, contrary to what the noble Baroness, Lady Jones, said about the age of children entering the care system. We believe that with the best intentions in the world, social workers are trying too often to make perfect matches and taking the aspect of ethnicity too much into account. As a result of this, the system is leaving—

[Baroness Young of Hornsey]

I am sorry to interrupt. I just want to get this clear, because the Minister seems to be saying that the provisions around ethnicity in the 2002 Act are virtually the sole or main reason why black and mixed-heritage children are being left behind in the adoption queue. I would still argue, as have other noble Lords, that there is little if any evidence to suggest that that is the case—that there is an exact, identifiable causal relationship between the provisions of the 2002 Act and the lack of progress for black children.

[Lord Nash]

I am grateful to the noble Baroness for enabling me to clarify this point. I am not saying that it is the sole cause at all. It is one of a number of factors and we believe that our approach will be one element in helping to address this imbalance, which is leaving ethnic minority children short-changed.

Social workers will of course continue to pay considerable regard to ethnicity as they and the courts will be required to have regard to,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”,

as part of the welfare checklist. These will obviously include ethnicity. We do not accept that our approach means that this will no longer be considered at all, as the noble Baronesses, Lady Lister, Lady Hamwee and Lady Benjamin, suggest. Indeed, in her speech the noble Baroness, Lady Walmsley, referred specifically to background. “Background” and “characteristics” must include ethnicity. That is a matter of plain English.

There is unequivocal evidence about the negative impact on their development of delay in placing children for adoption. Children need to form attachments with one or two main carers to develop emotionally and physically. There is also clear evidence about delay caused by practitioners seeking a “perfect” ethnic match. Professor Elaine Farmer, in An Investigation of Family Finding and Matching in Adoption, found that of the BME children in the sample who experienced delay, attempts to find a family of similar ethnicity was a factor in delay for 70% of them. A study by Julie Selwyn—

[Baroness Butler-Sloss]

Forgive me for interrupting, but I wonder if I could have the date of Elaine Farmer’s report.

[Lord Nash]

The noble and learned Baroness will get that information in a second.

A study by Julie Selwyn, Pathways to Permanence for Black, Asian and Mixed Ethnicity Children found that “same race” placements often dominated the child permanence report over and above other needs and that some social workers were so pessimistic about finding ethnically matched adopters that there was little family finding. She said:

“We found that local authorities were much quicker at changing the decision away from adoption for minority ethnic children than they were for white children. There were a great number of minority ethnic children for whom no families were found and the decision was changed away from adoption”.

Whatever the child may want, would they rather not be adopted at all or adopted late in life so that they cannot form those early attachments that we all know are so important?

The answer to the noble and learned Baroness’s question is 2010.

Amending Section 1(5) of the Adoption and Children Act 2002 does not mean that ethnicity should not be considered. A child’s adoptive family needs to be able to meet the child’s needs throughout his childhood, having regard to all the factors provided for in Section 1(2) and 1(4), rather than simply matching his or her ethnic background or not matching at all. We have published draft regulations on this for your Lordships’ consideration.

We recognise that practice is very important. That is why we are developing a range of training materials and other tools to support the continuous professional development needs of children’s social workers, supervising social workers, team managers and independent reviewing officers working in fostering and adoption. This is part of the Government’s drive to ensure that social workers working in the care and adoption systems have the knowledge and skills they need to get decisions right and weigh the impact of delay appropriately in the decisions that they make about placements for children in care.

Of course, we need more adopters from all ethnicities. That is why we have allocated over £150 million this year to help adoption agencies respond to the pressing needs of children awaiting adoption and a further £16 million over the next two years to expand the sector.

The UN Convention on the Rights of the Child does not require children to be placed with someone who shares exactly the same ethnicity but someone who respects it. Section 1 of the Act, as amended, will not prevent this. Many children in our society live with natural parents who do not entirely share their ethnicity. I urge the noble and learned Baroness to withdraw her amendment.

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[Viscount Eccles (Con)]

My Lords, there are fundamental problems with this clause. As has been said, there is no appeal against directions; the recipient must comply, and promptly. There is no parliamentary scrutiny of directions, and for these reasons directions are usually confined to failures in administration, a point made by the noble Baroness, Lady Hughes. I think we all understand that the Treasury is very good at setting out directions about how you should write your accounts. There is not much point in arguing with the Treasury about that matter of administration, but in my view directions are not suitable to implement a change in policy of this type. That is exactly what this clause empowers the Executive to do—change policy. The point has already been made that there is therefore a point of principle here, and I would be grateful for the Minister’s response. Given everything that has gone on, the dissatisfactions or doubts that might emerge between central government and local government could and should perfectly well be settled in the normal course of business. As has been said, Clause 3 goes one step too far, and I could not support it.

[Lord Nash]

I begin with the proposal to remove the clause, but most of what I will say is also relevant to all the amendments. I think that we would all agree that we have an undoubted problem in the narrow but important function of recruiting, assessing and approving a sufficient number of prospective adopters. The statistics are stark. As I have already said, the average length of time that it takes for a child to be adopted from entering the care system is two years and seven months, and of course this conceals many children who do not get adopted.

My noble friend Lord Storey said that there is poor performance by local authorities in only a minority of cases, but I respectfully suggest that the figure of two years and seven months denies that. However, I agree with him that there is good practice: in West Berkshire, for instance, the figure is a year and a month. I question why many if not all local authorities cannot do the same.

At the end of March this year, there were 6,000 children with placement orders waiting to move in with a permanent family. This is 15% higher than a year previously. When compared with the 3,980 children adopted from care last year, one can see that this is a very significant backlog. Indeed, one cannot conclude from this backlog anything other than that the system is broken and we are facing a real crisis.

In order to find families for all the children waiting to be adopted, we have estimated that we would need around 2,000 more adopters than are currently approved and waiting to be matched. We would then need at least a further 700 additional adopters each year to meet the growing demand from children waiting. Ofsted data tell us that in the year ending March 2012 just over 25,000 enquiries about becoming an adopter were received, but these resulted in only around 4,000 applications to become an adopter—a 16% conversion rate, which I suggest is very low.

The size of the recruitment gap requires us to take radical and immediate action to resolve the underlying problems within the system. These were set out in our January publication, Further Action on Adoption. We currently have around 175 adoption agencies, many operating at too small a scale to be efficient, yet they have no incentive to expand and meet the needs of children outside their local area. Even worse, some local authorities turn away prospective adopters because they do not need them themselves.

A further problem is that, while some local authorities work in constructive partnerships with voluntary adoption agencies, too many commission from them only as a last resort. In large part, this is a consequence of local authorities acting as both a provider and commissioner of adoption services. By this, I mean that they are trying to find or commission adoptive parents on behalf of the child while simultaneously trying to recruit or provide those same parents. There are also issues around the level of fees that are paid to voluntary adoption agencies.

These underlying problems have resulted in a system that fails us in national terms; a system that is unable to make best use of the national supply of potential adopters or respond effectively to the needs of vulnerable children waiting for a loving home and a system that provides no incentives to individual organisations to address a national shortage of adopters. These problems are not the fault of the individual adoption agencies concerned. Indeed, many are doing their best to rise to the challenge and we know that there are some good examples of partnership working between different agencies:

Harrow, Kent and Cambridgeshire, for example, have all contracted elements of their adoption service to the voluntary adoption agency Coram. Oxfordshire has brought in the Core Assets Group to run its adopter assessment process. Three boroughs in London—Kensington and Chelsea, Westminster and Hammersmith and Fulham—and three unitary authorities in the north-west, Warrington, Wigan and St Helens, have merged their adoption services in order to save money while improving quality.

The problems result from the flawed way in which the current system is structured and operates. We therefore require a structural solution that tackles these systemic problems; a solution that incentivises and enables the recruitment of a far greater number of adoptive parents. Clause 3 provides for such a solution.

[Baroness Hughes of Stretford]

I have been accused of being rather unkind to the Minister in thinking that there might be some plans already as to how to do that. He said that this needs a structural solution to address a national problem and that Clause 3 of itself is that solution. In fact, Clause 3 of itself is not that solution. Clause 3 would pave the way for a solution but we do not yet know what that solution and change of policy might be, as the noble Lord said. Can the Minister indicate the kind of solution that Clause 3 would pave the way for so that we might have some indication of the Government's thinking?

[Lord Nash]

Yes, I did say that Clause 3 provides for such a solution. It is not a solution in itself. As I said to the noble Baroness earlier this week, there is no dark plan and no end game. The fact is that the system is working poorly and erratically. There is good practice and there is clearly bad practice. Adopter recruitment could clearly be done more efficiently and on a greater scale, which may involve working more closely together. Of course, the sector may take time to develop and recognise that, which is why we have funded voluntary adoption agencies substantially in order to stimulate them. The power is necessary to stimulate change and I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for supporting the Government in having a power.

Turning to Amendments 14, 16 and 17, Clause 3 is not therefore intended to tackle cases of poor performance or service failure within individual local authorities. Our recruitment problem is not the result of individual failure and, if it was, the Secretary of State already has substantial powers to intervene. We therefore do not consider that the amendments, which would effectively use Clause 3 as an additional intervention power for a small number of local authorities, are necessary.

I am aware that the structural change proposed under Clause 3 would be substantial. I also acknowledge the view of the Delegated Powers and Regulatory Reform Committee concerning the delegation of a power of such scope. With respect to all the amendments, and with particular reference to Amendments 13 and 15, I would therefore like to reassure the Committee that I am keen to continue to listen to views as to how this power could best be used. In due course, the Government will then bring forward their own amendment which is likely to provide greater clarity about the process by which the power might be exercised.

When I write to Members of the Committee following this debate, I will provide a summary of the many steps that the Government have taken to support voluntary adoption agencies, as the noble Earl, Lord Listowel, requested. Briefly, we have invested £150 million in local authorities through the adoption reform grant and recently announced a £16 million boost package for voluntary adoption agencies which will help to recruit and approve more adopters. In terms of stimulating the system generally, as the Committee will know, we have introduced the national gateway. I therefore urge my noble friends Lady Hamwee, Lady Walmsley and Lord Storey, and the noble Baronesses, Lady Hughes, Lady Jones and Lady O’Loan, not to press their amendments.

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[Baroness Jones of Whitchurch]

My Lords, we have Amendments 21 and 24 in this group and I shall address them both. Amendment 21 arises from our continuing concern that children could be rushed into adoption prematurely. It echoes some of the concerns that we raised in the debate on Clause 1 relating to fostering for adoption and, in particular, the concern that a number of noble Lords expressed about what being considered for adoption means.

We are concerned that the government amendment to the Adoption and Children Act register would allow children to be added to the register before a formal decision was made about their future. That goes back to them being only “considered” for adoption. It is our view that if we are not careful this could add unnecessary stress and anxiety to the families and the children. As we said earlier, we are not necessarily dealing here with babies; we could be dealing with children and adolescents who may well know what is happening to them and that these actions are being taken on their behalf. They may be concerned and distressed if this is happening in a way that they consider to be premature. In other words, our amendment would require local authorities to be satisfied that it was the appropriate action to take and that they had the appropriate authority to do so by putting the children on the register. This would ensure that speed was not at the expense of the child’s interests.

I know that we all acknowledge the importance of stable and caring relationships, and we all understand that too many children are waiting too long in temporary care. They also develop significant parenting relationships with their temporary carers, only to be disrupted, sometimes after many months or years, when they are moved on or subject to a number of temporary placements. We understand the need for fast action where that is appropriate.

Where adoption is the proposed plan for the child, there are particular issues centring on the legal severance of the child from their birth family, which of course has major significance. It is a central principle of current law that only the court can authorise the action of a local authority to place a child for adoption without parental consent and that the local authority should not take any action that might anticipate the judgment of that court. This is to ensure that the welfare of the child remains central to decision-making, and part of the welfare considerations has to include the stability and care of that child.

We are concerned that the Government moving children on to the adoption register more quickly will be disruptive and cause stress, and might perhaps raise questions and concerns when the issue comes to court. Therefore, we seek that the Government reconsider this point. We do not doubt that reconciling the need of the child to be placed in a long-term caring environment in a timely way, with the issues raised in the court, can be challenging and complex. However, we are concerned to ensure that this is done in the proper order and in the proper way, and we do not believe that the Government’s proposals achieve that. Our aim is to provide the child with as much certainty and stability as possible amid the emotional upheaval that surrounds the whole process. We say that it is wrong to place children on the adoption register prematurely.

Amendment 24 deals with the Delegated Powers Committee. We briefly touched on this issue in our debate on the previous clause. On this occasion, the Government have not gone quite as far as the Delegated Powers Committee recommended. The committee took the view that it was not,

“appropriate to characterise the provisions made under section 128A as being operational, administrative or procedural”,

which is how the Government have described it. It continued:

“We believe it constitutes an important change to the operation of the Register in that it will allow access to personal and sensitive information which otherwise only adoption agencies have access to.”

The committee was concerned about the issues raised here. We believe that our amendment goes further and follows the proposals of the Delegated Powers Committee rather than what is proposed by the Government. I therefore hope that noble Lords will support Amendments 21 and 24.

[Lord Nash]

My Lords, I will speak first to Amendment 21, tabled by the noble Baronesses, Lady Hughes and Lady Jones. I understand their concerns and must make it clear that these fostering for adoption placements will be fostering placements, not adoptive placements. This clause seeks only to improve the likelihood of local authorities finding a potential fostering for adoption placement for children for whom such a placement has not been found locally. It will remain the case that a child cannot be placed for adoption without parental consent or a court making a placement order.

I reassure noble Lords that the details of children being considered for a fostering for adoption placement will be held in a separate section of the register. This is to ensure that their details can be seen only by the register staff, social workers and approved prospective adopters who have expressed a willingness to care for a child on a fostering for adoption basis. Noble Lords may recall that the 2002 Act provides for the register to assist with placing children for purposes other than adoption, as well as for adoption. The inclusion of children who are being considered for adoption in the register is one way in which this original design can be realised. I hope that the Committee will be reassured by our proposals and I therefore urge the noble Baronesses to withdraw their amendment.

On Amendment 24, which was also tabled by the noble Baronesses, Lady Hughes and Lady Jones, I can understand the desire to ensure that there is a parliamentary debate before the regulations are made enabling approved prospective adopters to search information on the register. The Delegated Powers and Regulatory Reform Committee recommended that regulations made under proposed Section 128A in Clause 6(4) should be subject to the affirmative procedure. The Government have listened to the concerns of noble Lords. We have responded to the recommendation from the committee by introducing government Amendment 22, so that the affirmative procedure is used to make regulations for the first use of the power. The safeguards relating to arrangements for approved prospective adopters to access the register are included in the first set of regulations that we intend to make, which I have published for your Lordships to consider. This means that under the Government’s proposal, noble Lords will have the opportunity to debate them in full.

The Government believe that any subsequent changes to these regulations should be subject to the negative resolution procedure because those changes should be minor in nature and will not represent significant reforms. The reforms that we are introducing are in fact an extension of arrangements already in place elsewhere in the adoption system. Approved prospective adopters are already able to access the details of children through hard copy and online publications such as Be My Parent, published by the British Association for Adoption and Fostering, or Children Who Wait, published by Adoption UK. Professor Elaine Farmer’s investigation into family finding and matching identified that in 30% of cases, delay was associated with unwillingness to seek a family outside a local authority’s own group of approved prospective adopters. We believe that these improvements to the register, which allow approved prospective adopters to be actively engaged in the matching process, will lead to a greater number of matches being made more quickly, particularly for those children who may be harder to place. The register already generates around 10% of all matches nationally.

The DPRRC has today indicated that is not persuaded that restriction to the first set of regulations, where we are content to use the affirmative procedure, is sufficient. This is because the DPRRC considers that substantive changes may be required in the light of the pilots. We will consider this advice and return to the matter on Report. I therefore ask the noble Baronesses not to press their amendment.

Finally, I would like to return to Amendment 21. The Committee will be aware that we gave an undertaking to Parliament that we would introduce access to the register by approved prospective adopters on a piloted basis initially, to ensure that the process worked effectively in practice. This minor amendment will ensure that the regulations to be made piloting approved prospective adopters’ access can apply only to discrete areas. I hope that noble Lords will agree that the amendment is necessary and I urge the Committee to accept it.

--- Later in debate ---

Moved by

[Lord Nash]

22: Clause 6, page 5, line 9, at end insert—
“( ) On the occasion of the first exercise of the power to make regulations under this section—
(a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and(b) accordingly section 140(2) does not apply to the instrument.””

--- Later in debate ---

[Baroness Howarth of Breckland]

My Lords, I think that most of the points have been made, but I want to go back to the days when some of us were engaged in the 2002 legislation. The noble Baroness, Lady Walmsley, will remember that when we were trying to get some of these provisions through, this cohort of people were among those who had not been prepared in the same way as those who have been prepared thereafter. However, the world has changed significantly since 2002, particularly in relation to health information, as both my colleagues have pointed out. It is a human right for an individual to know about their genealogy and therefore to be able to trace issues relating to health. This will be particularly true of girls and breast cancer, when different kinds of medical intervention will be available. Although I understand the sensitivities, we are not asking for access for absolutely everybody, as the noble Baroness, Lady Hamwee, pointed out; we are asking for an intermediary. When that route is not taken, individuals attempt to find out by other ways. I have a story of a man turning up at the gate of his birth father—a very eminent man—and saying, “I am your son”, having found out by other ways, and being told, “You may be, but I don’t want to know you”. One can see how an intermediary could have made a real difference to that relationship and the hurt that can come from that kind of situation.

This anomaly needs to be put right. It is absurd that everyone else can find out except the descendants—so you can go and get someone else to do it for you. It just needs ironing out, and the arguments that I have heard so far have passed.

[Lord Nash]

I thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for bringing this important matter to the Government’s attention, both earlier this year through the report of the Lords Select Committee on Adoption Legislation and through this proposed clause.

I entirely understand why the descendants of adopted people may want to find out more about their biological heritage, particularly where there may be a hereditary medical condition. The Government are open to the possibility of reform in this area, but we believe that more detailed thought is needed about the implications and practicalities of any legislative change. For example, we must think carefully about how more information might be provided to descendants, and we need to balance this against the rights and wishes of the adopted adults themselves and their birth families.

This is a complex and sensitive area which needs careful consideration before any change to legislation is considered. That is why the Government are exploring with the Law Commission whether this issue might be included within a possible project as part of the commission’s 12th programme of law reform.

The amendment would enable descendants of an adopted person to find out about the adopted person’s background. It applies to those adopted before commencement of the 2002 Act. Such adoptions were carried out privately and secretly, with very little information shared with the adopted child or his or her birth parents. If a mother, who may never have told anyone about an adoption, was approached out of the blue by her son asking about his adoption, that could have a devastating effect on the individual and the whole family.

We fully appreciate the wishes of descendents and there will be examples—

[Baroness Butler-Sloss]

I apologise to the Minister. Under this proposal, there is no suggestion that there should be any direct relationship between the person seeking the information and the person who has been adopted. It would be done through an intermediary, which is the whole purpose. I urge the Minister not to go down that line because that is not what we are asking for.

[Lord Nash]

I assure the noble and learned Baroness, Lady Butler-Sloss, that we are not seeking to be disingenuous about this and we do regard the issues as complicated. My noble friend Lady Hamwee asked what evidence the Government have to suggest that if we make this provision it could open the floodgates or that the new clause would lead to unwelcome contact. The answer is that we do not have any evidence, which is why we would like the Law Commission to consider it and are prepared to provide funds. I hope that I have provided sufficient reassurance on the amendment and I therefore urge the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, perhaps I may reinforce, if it is necessary because I think that it will be clear enough in Hansard, the point made by the noble and learned Baroness. The Minister’s scenario is exactly that which we are seeking to avoid with this amendment. I am sorry that the Minister has not been able to explain the points about sensitivity and complexity on which the Government are relying. He has told the Committee that the Government will give the issue more detailed thought. I think I have got it right that the Government will consider how detailed information should be made available to the descendant of an adopted person. I do not believe that it is for the Government to think and advise how information should be made available to that person. Quite rightly, in 2002, the Government set up the structure of involving an intermediary.

Of course, I cannot press the matter to a vote tonight because we do not do that in Grand Committee. It would be remiss of me not to ask the Minister if it might be possible for me to meet him following this stage to reinforce and perhaps explain better than I was able to do in what I appreciate might have been a rather rushed introduction. Perhaps we may meet before Report to see if there is a way in which we can work with him to be as persuasive as possible to the Law Commission, if that is the way it is to go, that it should take on this work. I do not know what private as distinct from public communications there may be with the Law Commission. I certainly would not ask the Minister to say so tonight, but it is morally and practically wrong not to sort out what the noble and learned Baroness so rightly describes as an anomaly.

[Lord Nash]

I should be delighted to meet the noble Baroness. It seems to me that there is a clear misunderstanding and it is essential that I meet her.

[Baroness Hamwee]

I am very grateful for that and on that note I am happy to withdraw the amendment.