My Lords, I thank all those who have spoken on what in my view is an important issue, although it may be, as several have said, a question of balance and degree. I will start by answering some of the Minister’s points. As a former judge who tried adoption cases, I am well aware of the unacceptable delays that there have been in adoptions of non-white children and children from other cultural backgrounds. I believe that Section 1(5), requiring social workers and the courts to pay particular regard to ethnicity, was wrong and I am happy that the Government wish to remove Section 1(5) from the Adoption and Children
Act 2002. However, I do not believe that putting these words into the checklist would have the effect that the Minister says.
The Government are putting forward a number of extremely sensible suggestions, many of them coming from the important reports that have been published. I hope that these will lead to far better adoption situations, and for all children who should be adopted to be adopted more quickly. Therefore, I very much appreciate the work the Government are doing. It is interesting that agencies remain unconvinced by the Government’s arguments, although they are, like the NSPCC, willing to work with Government to improve the statutory guidance if this amendment does not go through. I very much support any sort of enhanced guidance and training, but I am afraid that this is not enough.
I was probably wrong in my opening remarks to your Lordships in concentrating on ethnicity, because the words that I proposed should go into the checklist are four factors:
“religious persuasion, racial origin and cultural and linguistic background”.
They are all equally important and I was at fault for concentrating on ethnicity. It was a shorthand version and probably misleading.
I take the point made by the noble Lord, Lord Storey, about statutory guidance being good enough, but I ask him: if statutory guidance is good enough, why do we have the checklist? Surely the checklist could equally well go into statutory guidance. The checklist in Section 1(4) of the Adoption and Children Act has six paragraphs, (a) to (e), and three sub-paragraphs, (i) to (iii), and it is thought necessary to include them in the checklist, not just in statutory guidance. So why are the other factors in the 2002 Act so much more important than these four points that I have just set out, which I propose should be slipped neatly in with the rest of the checklist?
It has been suggested by the noble Baroness, Lady Eaton, that the words “have regard” might be seen as prescriptive, but sitting as I did as a judge, to “have regard” to something is not in the least prescriptive. One can have regard to it and then disregard it. One does not have to keep on regarding it. I certainly had no problem in the Children Act and the Adoption Act in having regard to something, then discarding it. There is nothing at all prescriptive about “having regard”. However, a checklist is a reminder to social workers and judges that they must not ignore it. To take it out altogether, which the adoption agencies are concerned about, is to swing that pendulum too far the other way, because it is not then anywhere.
It is suggested that the words “background” and “characteristics” are clear, as the noble Baroness, Lady Perry, said, and one does not need anything else. If I may respectfully disagree with her, I actually think that you do. You need a bit of a jolt. What do “background” and “characteristics” mean? They have to include certain points that I am not certain every social worker, however senior, might necessarily have in mind unless they were there. I say again that statutory guidance is not quite as good as having a checklist in primary legislation. The pendulum should be in the middle, and the middle means putting it in somewhere,
but not making it too important. That is what I would like to see with this amendment, and I would like to test the opinion of the House.