Children and Adoption Bill [HL]

My Lords, we have had a debate of extraordinary quality. As the noble Baroness, Lady   Morris of Bolton, said, the Government should be grateful that the Bill has started in this House, as they have at their disposal a wealth of experience that, I suggest, it would cost them a fortune to buy. Whatever form the legislation takes when it leaves this House, it will be immeasurably better as a result of the input from noble Lords in all parts of the House. I begin with a remark that may seem slightly controversial: this is a Bill about adults. It is not wholly right that Part 1 concentrates on adults; however, it is absolutely right that Part 2 should concentrate on adults. I mention a point raised in BAAF’s briefing that may seem rather small but which is relevant: the title of the Bill is wrong. I preferred the Bill’s title as announced in the gracious Speech; that is, the Child Contact and Inter-country Adoption Bill. That is what the Bill is about, and that is what it should be called. Throughout this afternoon’s debate it has been apparent that we are addressing a complex problem. Various noble Lords have discussed all kinds of areas that are not addressed by the Bill, which is primarily about the role of the courts and contact. Therefore, I suggest that the Government should rethink that matter. We are returning to an issue that has been the subject of successive legislation over the past decade. From the proposals introduced under the previous government in 1995 by the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, to this Government’s Bill of 2005, there has been recognition that the legislative framework concerning the well-being of children and families following separation and divorce is not satisfactory and needs reform. Valuable work has been done, from the response of the Lord Chancellor’s Department in 2002 to the consultation paper Making Contact Work, to the Green Paper Parental Separation: Children’s Needs and Parents’ Responsibilities and the subsequent paper in January 2005. What has happened is a process over time of further understanding and refinement of court practices relating to why contact does not work. It is one further step along that road—not to defining what is reasonable for a family on separation, but to refining a framework to enable them and the courts to determine what is reasonable for them. I go back therefore to what I said before: we need to focus clearly on the ambit of the legislation. The noble Baroness, Lady Thornton, was right to echo the words of the noble Baroness, Lady Ashton of Upholland, in her evidence to the Joint Committee to the effect that we are all severely hampered because we do not know the reasons for the breakdown of contact orders or why they do not work. In her submission to the Joint Committee, the noble Baroness, Lady Ashton, talked about the fact that research into gateway orders would not come in until 2006. At the moment, we are at something of a disadvantage. It would be a strong temptation in the absence of reliable research to impose on the legislation our impressions of what reasonable contact should be. It is clear that there has been a great deal of progress on the way in which contact disputes are dealt with, and the increased use of mediation and conciliation is to be welcomed. We welcome the Government’s attempts to encourage mediation, and we agree that for the reasons outlined by my noble friend compulsory mediation will not work but it is important to encourage people to go to the initial sessions to find out what it might mean. Dame Elizabeth Butler-Sloss’s said this to the House of Commons Constitutional Affairs Committee:"““the trouble with mediation is it is means-tested, so if you are on Legal Aid you get it free but if the other parent is not legally aided, and quite often the father is not, he is going to have to pay several hundred pounds to go to mediation, and if he is not very keen it is not really an encouragement for him to do it””." The speech made by the right reverend Prelate in particular shed a great deal of light on the subject for me. He said that in many cases what was being discussed was not really child contact but all the other issues over which parents were at war. It is important to note that mediation services should be there and should, as the noble Baronesses, Lady Pitkeathley and Lady Howarth of Breckland, said, be sufficiently resourced to enable people to deal with the other issues that are fought out under the guise of contact. In the time available to me, I shall concentrate on risk assessments, which is one part of Part 1. My noble friend alluded to those. I have listened hard to what many noble Lords have said about cases where there is suspected domestic violence. It is essential that the risk assessment process be sufficiently robust to ensure that all matters of domestic violence can be investigated and can either be dealt with or dismissed. It is important for resident parents who have a genuine fear to have it acknowledged and brought to court. Equally, it is important that fathers who face such accusations, which are not true, should have the wherewithal to defend themselves and to have those accusations dismissed. My honourable friend in another place Annette Brooke told me the other day of a constituent of hers who had been to court repeatedly to challenge just such accusations. Having spent £30,000 and being able to afford to go no further, he is now left with no way of seeing his children. That cannot be right. Risk assessment is not necessary in every case. It should not be an instrument of tactical delay but should be easily available when necessary. More important, risk assessment should be sufficiently flexible and sensitive to discern whether an incident of violence has happened as a direct product of the strain of separation; is part of a pattern of behaviour that might be repeated in future and might be of harm to a child; or is simply a product of anger against a former partner. It is essential that we have assurances in the Bill about risk assessment so that that will happen. I want to speak briefly about Part 2. During consideration of the Adoption and Children Bill, I expressed the view that, whatever one’s opinion of the desirability or otherwise of inter-country adoption, it was inevitable—it would happen. Therefore, it is preferable that the process be properly regulated and safe for children. I take some issue with the noble Baroness, Lady   Morris of Bolton, and her characterisation of inter-country adoption. Such adoptions happen for a number of different reasons. Frequently, it is about people adopting children from within their extended family or extended friendship ties. More often than not, it is nothing like that. The noble Baroness said that there was a shortage of babies for adoption in this country, but it is not so. There are thousands of children in this country waiting for adoption, but they are older children who have a number of problems. I understand entirely that people who wish to adopt may have made the decision that adopting such a child is not what they can or should do and therefore choose to go abroad to adopt babies. That is why it is right that Part 2 be about adults, not children. Let us bear it in mind that the legislation will cover countries such as the USA. It is not simply about people who, for humanitarian reasons, go abroad to adopt children in need. The procedures for suspending adoptions from other countries need to be clear, transparent and fair. It is absolutely right that, where there is reason to believe that the adoption procedures in another country would fail the needs of children, there should be the power to suspend them. However, the process of inter-country adoption is extremely long. If noble Lords talk or listen to people who have been down that path, they will know what an extensive and expensive process that it is. Therefore, it is right that there is the power in Clause 10(2) to allow exceptions in individual cases, particularly those in which adoptions have started and the process of restricting the country subsequently comes along. People who go down the route of inter-country adoption often find themselves facing barriers over which they have no control. Procedures in other countries take a long time, particularly where systems are not as robust as here. More often than not, inter-country adopters, who have to have a home study from social services departments in this country, face extensive delay while those under-resourced departments focus on the needs of children in this country. I therefore ask the Government to explain in detail how they will publicise their intention to place a country on a restricted list, advise adopters of the decision and publicise the circumstances in which discretion to make an exemption could be made. A number of noble Lords raised the subject of fees. I simply ask the Government why they are necessary. That is the only question to which we need an answer on that. I agree with BAAF that extending the time limit from six to 12 months, as proposed in Clause 13, is a good thing. It will stop people evading some of the rigours of adoption procedures in other countries. However, there is again a case for exemptions. If people were working abroad, entered into a process of adoption perfectly reasonably under the laws of that country and were suddenly recalled to this country, it would be wrong to make the children face 12 months of disruption before that process went ahead. Finally, I wish to make two points in the time available to me. I shall talk about private fostering, and the noble Earl, Lord Howe, is permitted at this point to put in his iPod and pull up his hoodie, because he has heard me say this so many times. Until such time as we have a private fostering system that is properly regulated in this country, we will continue to run up against problems that sometimes are masked as inter-country adoptions but more likely are about trafficking. Recently, we have seen reports about the number of children in this country who simply disappear as the result of a badly regulated system for private fostering. I have a final question. The Civil Partnership Act was passed last year. Can the Minister say whether the Bill recognises the fact that we may be dealing with contact between civil partners? Just as with the Adoption and Children Act 2002, we are dealing with one of the most difficult, personal tragedies that there can be in life. It is not our job to seek solutions or remedies for those problems. We simply cannot do that. It is our job to provide a framework in which adults and courts are enabled to do what is right for children. That is our path.