Children and Adoption Bill [Lords]

This group of amendments seeks further clarification on our proposals for inter-country adoption and I welcome the opportunity to provide it. The amendments cover a wide range of related topics, including the process for imposing special restrictions on particular countries, the determination of the fee for inter-country adoption casework—although that issue has not been touched on in our debates, it is dealt with in the amendments—and arrangements for safeguarding children adopted abroad from this country. They raise different issues, and I will try to deal with each in turn. As they stand, sections 84 and 85 of the Adoption and Children Act 2002 prevent children from being removed from this country for the purposes of adoption abroad unless certain conditions have been met. The aim of those provisions is to help to prevent the abduction of, and trafficking in, children, and to ensure the development by affected children of secure attachments with their prospective future legal parent. I am sure that Members will agree that we should do nothing to weaken that safeguard unless we are satisfied that it is absolutely necessary to do so. New clause 3 would allow the current minimum cohabitation period of 10 weeks to be waived, as the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said. I did not serve on the Standing Committee, but the hon. Lady did, and I am sure that she will recall that we explained the rationale behind the requirement for an appropriate period of cohabitation in section 84 and why that means that the period of cohabitation must take place in the United Kingdom. However, I shall briefly rehearse some of that rationale. Until an order is made under section 84, the local authority retains parental responsibility for the child, and hence remains responsible for the child. In the parallel situation of a domestic adoption, no application for an adoption order may be made unless the child has been living with the prospective adopters for 10 weeks. A similar requirement therefore applies to applications for an order under section 84, which allows the local authority to monitor and assess the placement and to step in immediately and directly if there are any problems. That is part of our reason for not wanting the 10-week period to be waived. Obviously, the local authority would not be able to monitor or take action as directly or as immediately if the child were outside the UK. The requirements in section 84 therefore give the same safeguards and protection to children placed with prospective adopters who intend to adopt the child outside the UK as are given to children placed with domestic adopters. Various reports and information must be made available to the court when considering an order under section 84, including reports and information arising from a review of the placement. It is important that the court has information on the success, or otherwise, of the placement before making an order that authorises the prospective adopters to remove the child from the country, and to distance the child, in every sense, from its birth family. The proposed measure would limit the information available to the court, and a report of the assessment of the placement is a significant, if not pivotal, piece of information. Having carefully considered the arguments previously put on this issue, we continue to believe that it would not be appropriate to water down such an important safeguard. There can be no justification for a lower standard of safeguarding for children placed for adoption outside this country than applies for domestic adoptions. We therefore do not support the new clause. I understand that last December the period in question was six months, and it has subsequently been reduced; it is now 10 weeks. We feel that that is appropriate and proportionate, and we do not as yet have any evidence to the contrary, although we would always consider such evidence, if it were offered. Amendment No. 1 would require the Secretary of State to consult"““the central authority in the country or territory to which restrictions are to apply””" before making a declaration. The Hague convention requires contracting states to designate at least one central authority to discharge functions in respect of inter-country adoption. As it stands, clause 9 requires the Secretary of State to consult the devolved Administrations in Wales and Northern Ireland before making a declaration of special restrictions. Adoption is a devolved policy area, and that requirement is entirely reasonable, as a declaration will have a direct effect on those countries. Such consultations are undertaken relatively often and are not a significant cause of delay. One of the concerns that caused us to introduce the Bill is child trafficking, which appears often to be fuelled and assisted by corruption and improper financial gain. That was one of the specific areas of concern that led to the introduction of a temporary suspension of adoptions from Cambodia, which I know was thoroughly discussed in Committee. Sadly, corruption and the lure of improper financial gain will be present in some countries that may be placed on the restricted list at all levels up to, and including, the central authority. Indeed, in some cases the central authority could even be the main cause of such problems. In such circumstances, consulting the central authority could pose significant risks to children by triggering a rush—the hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned this—to process adoptions much more quickly, before the special restrictions are introduced. We are not suggesting that that will be a feature of all situations where a country is placed on the restricted list. Indeed, information gathered from the central authority may be of significant value in a number of cases. However, a requirement in primary legislation to consult in each and every case is clearly not appropriate, so I am sure that the hon. Gentleman will understand that we cannot accept the amendment. Amendment No. 2 would require the Secretary of State to consult the Hague conference on private international law before making an order to impose special restrictions on a country that had ratified or acceded to the Hague convention. I assume that the intention is for the Secretary of State to consult the permanent bureau, which acts as the secretariat to the Hague conference, rather than the 65 member states that make up the conference. When concerns are raised regarding a Hague convention country, they should indeed be raised with the permanent bureau, which would generally expect to act as a mediator to help to resolve the situation. It can and does do that. In 2003, the permanent bureau convened a meeting of contracting states to discuss with Guatemala how concerns about adoptions from that country could be addressed. We have a good working relationship with the permanent bureau and we understand that it would both expect and—importantly—be happy to be consulted. I can therefore reassure the hon. Gentleman that amendment No. 2 is not necessary, because we already use the mechanisms of co-operation managed by the permanent bureau. However, for the same reason that relates to amendment No. 1, there may conceivably be cases in which we will need to act quickly and do not want to risk the delay of consulting the permanent bureau. We would therefore not want a statutory obligation to consult in all cases—in case one of those exceptional circumstances should come about. Amendment No. 4 would require the Secretary of State to establish a procedure to consider appeals against the decision to introduce special restrictions. It is only right that there are appropriate checks and balances on the powers of the Secretary of State, but I can assure the hon. Gentleman that they are in place without the need for the amendment. First, following the recommendation of the House of Lords Delegated Powers and Regulatory Reform Committee, clause 9(4) was amended to provide that the Secretary of State’s declaration that special restrictions will apply shall be made by order. That means that the order that declares that special restrictions are to apply is subject to the usual parliamentary scrutiny and could be annulled under the negative procedure in Parliament. Secondly, when special restrictions are in place, it would also be open to anyone to make representations to the Secretary of State, which he would have a duty to consider. Clause 10 requires the Secretary of State to keep the special restrictions under review and, if he no longer has concerns over practices in the relevant country in connection with adoption, the restrictions must be removed. The consideration of representations would form part of the review of a restricted country and consideration of its removal from the restricted list. Thirdly, the introduction of special restrictions is an administrative decision made by the Secretary of State and, as such, will be subject to the supervisory jurisdiction of the High Court. Application for a judicial review is therefore also available as a course for challenging the Secretary of State’s decision to introduce special restrictions. As we know, that has happened; there has been a challenge in the past. Clause 11 already provides a mechanism for individual prospective adopters to argue that their application should proceed, despite the special restrictions. Cases will be decided on their merits after consideration of the prevailing circumstances and the best interests of the child concerned. Several examples of that were fleshed out in Committee. Given all the protections that are in place, there is no need to add a statutory framework for appeals. I am happy to say that amendment No. 22, which would require regular reviews of decisions to impose special restrictions, is not necessary. Clause 10(1) will explicitly require the Secretary of State to keep under review whether any country on the restricted list should remain as such.