Report on the Adoption and Children Bill

Committee for Health

Report on the Adoption and Children Bill (NIA 132 17-22).pdf (519.62 kb)

This report is the property of the Committee for Health. Neither the report nor its contents should be disclosed to any person unless such disclosure is authorised by the Committee.

Ordered by the Committee for Health to be published on 27 January 2022.

Contents

Powers and Membership

Executive Summary

Introduction

Consideration of the Evidence Received.

Clause by Clause Scrutiny of the Bill

Links to Appendices

Appendix 1: Minutes of Proceedings

Appendix 2: Minutes of Evidence

Appendix 3: Written submissions.

Appendix 4: Research Papers

Appendix 5: Departmental Correspondence

Appendix 6: Witnesses who gave evidence to the Committee.

Powers and Membership

Powers

The Committee for Health is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement 1998 and under Assembly Standing Order 48.  The Committee has a scrutiny, policy development and consultation role with respect to the Department for Health and has a role in the initiation of legislation.

The Committee has power to:

• consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
• consider subordinate legislation and take the Committee Stage of primary legislation;
• call for persons and papers;
• initiate inquiries and make reports; and
• consider and advise on matters brought to the Committee by the Minister of Health.

Membership

The Committee has 9 members, including a Chairperson and Deputy Chairperson, and a quorum of five members. The membership of the Committee is as follows:

• Colm Gildernew MLA (Chairperson)
• Pam Cameron MLA (Deputy Chairperson)
• Paula Bradshaw MLA
• Gerry Carroll MLA
• Alan Chambers MLA^[1]
• Deborah Erskine MLA^[2]
• Órlaithí Flynn MLA
• Colin McGrath MLA^[3]
• Carál Ní Chuilín MLA^[4]

List of Abbreviations and Acronyms used in this Report

The 1987 Order: The Adoption Order (Northern Ireland) 1987

The 1995 Order: The Children (Northern Ireland) Order 1995

The Bill: The Adoption and Children Bill

Brussels IIa Framework: Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

CCG: Children’s Court Guardian

COAC: Children Order Advisory Committee

The Department: Department of Health

EU: European Union

FGM: Female Genital Mutilation

GEM: ‘Going the Extra Mile’ Scheme

HSC: Health and Social Care

HSCT: Health and Social Care Trust

NIHRC: Northern Ireland Human Rights Commission

SGO: Special Guardianship Order

VOYPIC: Voice of Young People in Care

Executive Summary

1. This report sets out the Committee for Health's consideration of the Adoption and Children Bill.
2. The Adoption and Children Bill was introduced in the Northern Ireland Assembly on 20 September 2021 by the Minister of Health, Robin Swann MLA, and was referred to the Committee for Health for consideration on completion of the Second Stage of the Bill on 5 October 2021.
3. The purpose of the Bill is to reform the legislative framework governing adoption in Northern Ireland, making it more consistent with the principles and provisions of the Children (Northern Ireland) Order 1995 (“the 1995 Order”) and with international human rights requirements.
4. Principally through amendments to 1995 Order, and the replacement of the Adoption Order (Northern Ireland) 1987 (“the 1987 Order”), the Bill aims to make the adoption process as efficient and robust as possible, eliminating unnecessary delay and uncertainty for children. The Department of Health has stated that this means the child will be placed at the centre of the adoption process, and support mechanisms will be improved for anyone involved in adoption.
5. The Bill also aims to extend and strengthen provision in the 1995 Order to enhance the services provided to children, their parents and carers and to improve outcomes for looked after children, including the introduction of a new Special Guardianship Order (SGO), which will provide an alternative route to permanence for children for whom adoption is not appropriate.
6. The Committee received 18 written submissions to its call for evidence on the Bill. The Committee considered the Bill at 11 meetings and, including Departmental briefings, held a total of eight evidence sessions on the Bill.
7. Additionally, Committee members attended a number of informal sessions, including a briefing on the practicalities of the adoption process held on 12 November 2021, and several meetings with stakeholders in January 2022. At these sessions, valuable insight was gained from those directly affected by the current arrangements for adopted and looked-after children. Some commentary and issues raised during the informal sessions are included at paragraphs 83-94 of this report.
8. Following consideration of the written and oral evidence, the Committee agreed a number of amendments to the Bill. The Committee agreed a number of its own amendments and to support a number of the Department’s proposed amendments.
   
   Clause 5: Assessments etc. for adoption support services
   
   
9. Members welcomed the duty to provide an assessment of need. However, Members were concerned that with no duty to provide the services identified in the assessment, there would be a significant impact to children and young people and families in waiting for what has been identified as a need. The Committee agreed it was necessary to include a duty on the Department to provide support services that have been assessed as needed.
   
   
10. The Committee considered that the categories of persons who would be entitled to the provision of support services were not sufficiently clear in clause 5 as drafted. The Committee agreed the amendment outlined at paragraph 32.
    
    Clause 119: Special guardianship
    
    
11. Bearing in mind the Committee’s decision to more clearly state the categories of persons entitled to adoption support services, members agreed that a commensurate approach should be taken in respect of special guardians, in line with recommendations and representations from stakeholders. The Committee agreed the amendment at paragraph 35..
    
    Clause 122: Duty of authorities to promote educational achievement and prevent disruption of education and training
    
    
12. The Committee agreed that the wording of clause 122 in respect of the duty to promote educational achievement was not sufficiently strong or inclusive and therefore agreed an amendment to Clause 122 that included ‘facilitate and support’ in the clause. So the clause would read that there is a statutory duty for authorities to promote, facilitate and support children and young people in care.
    
    
13. The Committee also felt that the term educational achievement may feel unattainable for some children and young people and place unnecessary focus on academic achievement. The Committee therefore agreed an amendment that would underline that the purpose of this clause is not on academic achievement, but on achievement and development in relation to both education and training. A draft of the amendment is included at paragraph 41.
    
    Clause 133: Definition of harm
    
    
14. The Committee agreed with stakeholders that the definition of harm in the Bill as drafted in the Bill was too narrow. The Committee considered a draft amendment from the Department on the definition and was still not satisfied that it did not include in the definition that there does not need to be evidence that a child had any awareness or understanding of ill-treatment, but that they were adversely impacted by the ill-treatment of another.
    
    
15. The Committee therefore considered its own draft amendment to the Billthat would include reference to the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 (what amounts to abusive behaviour). Following further consideration, the Department provided the Committee with a proposed revised amendment that included reference to the Domestic Abuse and Civil Proceedings Act.
    
    
16. The Committee agree that it was content with the wording of the revised amendment, pending the view of the NIHRC on the wording of the amendment.
    
    Clause 143: Annual report
    
    
17. The Committee agreed with stakeholders that clause 143 went too far in removing entirely the duty to produce an annual report under the Children (Northern Ireland) Order 1995.
    
    
18. The Committee accordingly gives notice of its intention to oppose the question that clause 143 stand part of the Bill.
    
    Review of the legislation
    
    
19. In order to provide for effective and regular reporting mechanisms, the Committee agreed a new amendment that would place a duty on the Department to report on the implementation of the Bill. The Committee’s agreed amendment is at paragraph 70.
    
    North/South
    
    
20. Although kinship foster care arrangements are in place under a cross-border protocol, concerns were raised at Committee about the practical challenges stemming from the fact that adoption on a North/South basis is currently treated in the same way as any other intercountry adoption, even when the prospective adopters are relatives.
    
    
21. The Department must ensure that there is sufficient support for cross-border placements, including assessments and provision of services when applicable. The Committee recommends that the Department undertakes a review of cross-border care arrangements including consideration of a regulatory framework for cross-border cases.
    
    Requirement to attend interview with counsellor – Schedule 2
    
    
22. The Committee considered the Department’s amendment to Schedule 2, which removes the requirement for a person adopted before December 1987 to attend a counselling interview before the Registrar General can provide disclose birth records.
    
    
23. The Committee welcomes this, but outlines that this is a complex issue and the Committee recognises the importance of counselling and support and believes that the Registrar General should provide people with all the relevant information in relation to what support and counselling is available. The Committee would also outline that if counselling is not wanted before disclosure, counselling and support should be provided when required and that support and counselling should be provided in a timely manner.
    
    Duty on organisations to preserve and retain records
    
    
24. Part 1 of recommendation 4 in the Report of the Truth Recovery Design Panel stated that:
    “The Truth Recovery Panel recommends immediate action by the Northern Ireland Executive, supported by the Northern Ireland Assembly, to create a statutory requirement on all relevant record holders to preserve and not destroy any information relating to Mother and Baby Institutions, Magdalene Laundries, Workhouses, adoption-related institutions and ‘baby homes’, and their policies and practices, including personal records.  The requirement should extend to all State and non-State institutions and agencies, officials, representatives and professionals that serviced them.”
    
    
25. The Committee outlined the need for this recommendation to be implemented as soon as possible to ensure that relevant documents are not disposed of and are preserved to enable people to access what documentation there is. Following publication of the Panel’s Report, the Minister indicated that he would use the Adoption and Children Bill as the vehicle to introduce a duty to preserve and retain records. This issue was raised by a number of victims and survivors on the mother and baby homes and the Magdalene laundries.
    
    
26. The Committee considered the Department’s proposed new clauses at its meeting on 25 January and were content with them, subject to confirmation that the new clauses are in line with the Data Protection Act and the Public Records Act.

Introduction

1. The Adoption and Children Bill^[5] (“the Bill”) was introduced to the Northern Ireland Assembly on 20 September 2021 and was referred to the Committee for Health for consideration in accordance with Standing Order 33 (1) on completion of the Second Stage^[6] of the Bill on 5 October 2021.
2. At introduction the Minister of Health, Robin Swann MLA made the following statement under section 9 of the Northern Ireland Act 1998: ‘In my view the Adoption and Children Bill would be within the legislative competence of the Northern Ireland Assembly.’
3. The Bill will replace the Adoption Order (Northern Ireland) 1987 (“the 1987 Order”) and substantially amend the Children (Northern Ireland) Order 1995 (“the 1995 Order”) to:

1. align adoption law with the relevant provisions of the 1995 Order to ensure that the child's welfare is the paramount consideration in decisions relating to adoption;
2. place a duty on adoption authorities to maintain an adoption service, which must include arrangements for the adoption of children and for the provision of adoption support services (including financial support);
3. provide a new right for adopted children and adoptive parents to request an assessment of their needs for adoption support services;
4. introduce a new legal framework for disclosure of information and establishing contact and provide for a new and more consistent approach to access to information held in adoption agency records and by the Registrar General about adoptions which take place after the Bill comes into operation;
5. reduce the time period a child is required to have lived with a foster carer from three years to one year before a foster carer is permitted to seek a Residence Order stipulating the person with whom a child should live;
6. provide that Residence Orders made in respect of looked after children will be automatically granted to age 18 or extended to age 18 unless a court determines otherwise;
7. require an authority to ascertain the wishes and feelings of a child in need in relation to suitable services which they are under a duty to provide, or investigations that they are required to carry out for child protection purposes, and to give those wishes and feelings due consideration;
8. place the existing system of care planning on a statutory basis by requiring the preparation and submission of a care plan by an authority prior to a care order being made by the court;
9. introduce a special guardianship order (SGO), a new legal order intended to provide greater permanence for children who cannot return to their birth families and for whom adoption is not appropriate;
10. introduce statutory advocacy services for looked after children, former looked after children, special guardianship children or adopted children who wish to make representations (including complaints) about the discharge of any of an authority’s functions to children under the Children Order or in connection with adoption functions;
11. change the name of the Guardian ad Litem to Children’s Court Guardian (CCG) and extend the proceedings in which a Children’s Court Guardian will be required to be appointed;
12. introduce a power for authorities to provide accommodation to a disabled child for the purposes of providing short-term breaks outside the looked after children system. The new provision also contains a power for the Department to prescribe, by way of regulations, other categories of children to whom such accommodation may be provided, again, outside of the looked after children system;
13. introduce a new requirement for authorities, as part of the duty to safeguard and promote the welfare of a looked after child, to promote the child’s educational achievement;
14. introduce a legal duty on an authority to consider the placement of a child with dually approved carers (i.e. approved foster parents who are also approved prospective adopters) when it is considering adoption;
15. extend the age limit for support provided to specified care leavers who are still engaged in education and training from 24 to 25;
16. place the Going the Extra Mile (GEM) scheme on a statutory footing to enable care leavers to continue living with their foster parents up to age 21;
17. amend the definition of “Harm” to include harm caused to a child by seeing or hearing the ill-treatment of another person; and
18. include Female Genital Mutilation (FGM) Protection Orders in the list of Family Proceedings, with the effect that a court, when dealing with an application for an FGM Protection Order, can make other orders under the Children Order regarding the welfare of the child.

4. Further information on the background and policy objectives of the Bill can be found in the Bill’s accompanying Explanatory and Financial Memorandum^[7].

Consideration of the Evidence Received

16. This section of the report outlines the Committee's consideration of the evidence it received on the Bill. As outlined in the introduction of this report, the Committee received a significant volume of written evidence and considered a number of supplementary papers. Additionally, Committee members attended a number of informal stakeholder events to assist with its consideration and understanding of the emerging themes and issues. The Committee heard oral evidence from 11 organisations.

17. The Committee received 18 written submissions from 16 organisations. All of these organisations indicated their support for the Bill, although many made representations on a largely common number of issues and themes, limited to a small number of clauses.

18. Written submissions highlighted the importance of this legislation getting through the Assembly stages before the end of the mandate and during oral evidence sessions organisations underlined the importance of this. Organisations stated that it is important that the Committee considers the implementation of the Bill through the sets of regulations that will come through in the next mandate. All the submissions underlined the importance that this Bill passes during this mandate.

19. With 160 clauses and four schedules, much of the Bill is technical in nature, amending and/or repealing existing legislation. The Bill had also been widely consulted upon by the Department in a previous draft in 2017, which could not proceed at that time because the Assembly was not sitting. The overwhelming balance of the evidence received both in writing and in oral form at Committee focused on a number of common themes and issues, rather than a clause by clause analysis.

20. The recurrent themes/issues identified in the written submissions and oral evidence related to:

• Right to an assessment of needs;
• Duty to provide adoption support services;
• Duty to provide special guardianship support services;
• Promotion of educational achievement;
• Going the Extra Mile (GEM) scheme;
• Statutory advocacy services;
• Definition of harm;
• Removal of the requirement to produce an annual Children Order report;
• Duty on organisations to preserve and retain records; and
• Other issues

21. These issues raised in evidence and considered by the Committee are set out in greater detail below.

Right to an assessment of needs

22. Clause 5 of the Bill confers a new right whereby an adoption agency must carry out an assessment of needs for adoption support services. It is intended that the assessment will provide a means of facilitating the provision of a planned and coordinated support package.

23. In both written and oral evidence, the Committee heard that there was near-universal support for this measure. However, several stakeholders voiced concern that the same right to an assessment of need was not explicitly provided for special guardians under clause 119 of the Bill.

24. Action for Children stated that the strengthening of the assessment of needs was welcome but the challenge would be in implementation, which would require much more collaborative working between Health and Social Care Trusts and the Education Authority. The British Association of Social Workers NI supported the new right but expressed concerns on resourcing.

25. On 13 January, Departmental officials attended the Committee and agreed that there was no duty on Trusts, on the face of the Bill, to conduct an assessment of needs for special guardian support services in respect of certain categories of people. The Department advised that it is to table an amendment to clause 119, new article 14F(3), to place a duty on Trusts to provide such an assessment if requested by or on behalf of children with respect to whom a Special Guardianship Order has been applied for or is in place. This duty to provide an assessment will also apply to current or prospective Special Guardians and to the child's parents.

26. The Department contends that the amendment will ensure that the approach for undertaking such assessments is broadly consistent with the provision in clause 5 in relation to assessments of needs for adoption support services.
27. Pending sight of the text of the departmental amendment, the Committee was broadly content.

Duty to provide adoption support services

28. Some stakeholders expressed concern that Clause 5 as drafted does not place a duty on a Trust to provide the support services which may be identified as needed following an assessment of need. The Department has responded that early monitoring of implementation will inform decisions as to whether it should exercise its powers by way of regulations to place such a duty on Trusts.

29. Adoption UK welcomed the new right to an assessment of need for adoption support services but voiced concern that there is no duty on an authority to provide an assessment unless it is requested.

30. Additionally, there were concerns raised that the categories of persons who would be entitled to the provision of support services were not sufficiently clear in clause 5 as drafted.

31. During Committee deliberations, Members welcomed the duty to provide an assessment of need. However, Members were concerned that with no duty to provide the services identified in the assessment, there would be a significant impact to children and young people and families in waiting for what has been identified as a need. The Committee agreed it was necessary to include a duty on the Department to provide support services that have been assessed as needed.

32. Consequently, at its meeting on 20 January 2022, the Committee agreed the following amendment:

Clause 5, page 5, line 14
Leave out from 'that' to end of line 14 and insert–
'-
(a) that person is a child who may be adopted;
(b) that person is a parent or guardian of a child who may be adopted;
(c) that person is a person wishing to adopt a child;
(d) that person is an adopted person;
(e) that person is a parent, natural parent or former guardian of an adopted person; and
(f) that person is within a prescribed description.'

Duty to provide special guardianship support services

33. Bearing in mind the Committee's decision to more clearly state the categories of persons entitled to adoption support services, members agreed that a commensurate approach should be taken in respect of special guardians, in line with recommendations and representations from stakeholders.

34. The Fostering Network stated that there should be no hierarchy to permanency for children and young people and that it would like to see special guardianship support on the same basis and with the same eligibility as adoption support.

35. The Committee agreed to make the following amendment to clause 119:

Clause 119, page 71, line 39
Leave out from 'that' to end of line 40 and insert –
'-(a) that person is a child with respect to whom a special guardianship order has been applied for;
(b) that person is a parent or guardian of a child with respect to whom a special guardianship order has been applied for;
(c) that person is a person wishing to become a special guardian;
(d) that person is a child with respect to whom a special guardianship order is in force;
(e) that person is a parent or former guardian of a child with respect to whom a special guardianship order is in force; and
(f) that person is within a prescribed description.'

Promotion of educational achievement

36. Clause 122 of the Bill amends the Children (Northern Ireland) Order 1995 by establishing that the duty to safeguard and promote the welfare of a child looked after by an authority, includes a duty to promote the child's educational achievement. Further, it places a duty on authorities to ensure, so far as is practicable or consistent with the child's welfare, that in determining the most appropriate placement for a child, such a placement does not disrupt the child's education or training.

37. This provision was broadly welcomed but some concerns were raised over whether the use of the term "promote" is sufficiently strong. Some stakeholders advocated a cross-departmental approach to include the Education Authority. The Fostering Network raised concerns that the clause may exclude those currently not in education, employment or training. The Northern Ireland Commissioner for Children and Young People agreed that the proposed wording was insufficiently strong.

38. Voice of Young People in Care (VOYPIC) expressed the view that the duty should extend to resourcing greater participation in education and extra- and co-curricular opportunities, bearing in mind that some children in care are unable to access the same range of opportunities (school trips, involvement in sports teams, participation in arts and music) as their peers.

39. The Committee welcomes this clause and sees it as an important way to highlight the issue and recognise that further work needs to be undertaken to support children and young people who are, or have been in care in education and training. The Committee agreed with those who gave evidence that the term 'promote' may not be clear in what it means. The Committee felt that by including the words 'facilitate and support' alongside promote, this would provide a better understanding of what is the intention behind this clause.

40. At its meeting on 20 January 2022, the Committee agreed the following amendment:

Clause 122, page 74, line 37
After 'promote' insert ', facilitate and support'

41. The Committee also felt that the term educational achievement may feel unattainable for some children and young people and place unnecessary focus on academic achievement. The Committee therefore agreed an amendment that would underline that the purpose of this clause is not on academic achievement, but on achievement and development in relation to both education and training.

Clause 122, page 74, line 37
Leave out 'educational achievement' and insert 'achievement and development in relation to education or training'

Going the Extra Mile (GEM) scheme

42. In response to calls from several stakeholders, the Department agreed to consider whether it would be appropriate to amend clause 128, new Article 34DA(4), to provide that the payment received by a former foster carer under the GEM Scheme should be brought in line with fostering allowances.

43. Attending Committee on 13 January 2022, officials outlined that the Minister had decided not to make such an amendment on the basis that it would be difficult to define in legislative terms given the number of possible funding permutations. Rates and payments available as part of the GEM Scheme are currently set out in guidance developed by the Health and Social Care Board and are dependent on the circumstances of each case. The calculation of the former foster carer's allowance under the Scheme is not straightforward and there are a number of scenarios where allowance rates may be impacted because of individual circumstances.

44. The officials outlined that the GEM Scheme guidance will be updated by the Department as part of the implementation of the Bill and the rates and payments available will continue to be set out in that guidance.

45. The Committee recommends that the GEM Scheme guidance be updated as soon as possible and that it provides the necessary financial support that is needed for foster carers.

Statutory advocacy services

46. Several stakeholders suggested that clause 132 of the Bill should be amended to more clearly reflect that advocacy services will be independent of Trusts. In order to address this, the Department has signalled that it will table an amendment which will insert the word "independent" in the heading of that clause and also the heading of new Article 45A which is to be inserted into the Children Order 1995.

47. However, officials signalled that the Department does not propose to amend the wording of the clause. While the advocacy clause itself does not specify "independent" services, the clause does contain regulation-making powers that allow the Department to specify who may not provide advocacy services. It is intended that this will be used to ensure independence by specifying that services may not be provided by persons linked to the service that is the subject of representations. Additionally, the Bill provides a further regulation-making power requiring Trusts to monitor the steps that they have taken with a view to ensuring that they comply with regulations made for the purposes of ensuring independence.

48. The Committee agreed that it was content with the Department's amendment to Clause 132 of the Bill.

Definition of harm

49. Clause 133 amends the definition of "harm" in the Children Order 1995 to include a child seeing or hearing the ill-treatment of another person. As a result, courts, police and Trusts will be required to consider the effect on a child of witnessing domestic abuse when making critical decisions about their protection, care or upbringing.

50. There were widespread calls from stakeholders to broaden the definition of harm to recognise that children do not need to directly witness harm by sight or sound to be adversely affected.
51. Barnardo's NI urged the Committee in its evidence to expand this definition further to recognise that children do not need to witness ill-treatment by sight or sound to be affected and impacted by it.

52. In its evidence, the NSPCC recommended that the definition of harm be amended to reflect that a child can be severely adversely impacted by domestic abuse in the home, even if they do not see or hear the abuse taking place.

53. The Northern Ireland Commissioner for Children and Young People agreed that the provision should not include a condition that requires a child to have witnessed or to have heard incidents of abuse.

54. At its meeting on 13 January, departmental officials informed the Committee that, following consultation with Counsel, the Minister had decided to amend clause 133. As a result, the definition of "harm" in the Children Order would be amended to read:

"harm" means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing, hearing or being present during the ill-treatment of another and the question of whether harm is significant shall be determined in accordance with Article 50(3).

55. After reflecting on the matter, the Committee considered the evidence it had heard from stakeholders and wanted to also include in the definition that there does not need to be evidence that a child had any awareness or understanding of ill-treatment, but that they were adversely impacted by the ill-treatment of another. The Committee agreed the following amendment:

Leave out clause 133 and insert

'Definition of harm
133. In Article 2 (2) of the Children Order (interpretation) in the definition of "harm" leave out after "health or development" and insert "including, for example, impairment suffered from seeing, hearing, being present during or being adversely impacted by the ill-treatment of another. There does not need to be evidence that a child had any awareness or understanding of the ill-treatment of another in order for impairment to occur,".

56. At its meeting on 25 January, the Committee considered a further amendment from the Department which took the Committee's concerns into account. The Department advised that the Children's Commissioner was content with the wording of the amendment. The new wording of the amendments are included below.

Amendment 1
Clause 133, Page 85, Line 25
Leave out the words from "in the" to the end of line 27 and insert 'at the appropriate place insert—
"impairment of health or development" includes, for example, impairment suffered as a result of—

1. the ill-treatment of another, or
2. behaviour directed at another that falls within section 2 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 (what amounts to abusive behaviour),
   whether or not the child who suffered the impairment saw or heard, or was present during that ill-treatment or behaviour;'

Amendment 2
Clause 133, Page 85, Line 27 At end insert –
'(2) In Article 12A(1) of the Children Order (residence and contact orders and domestic violence), for the words from "through seeing" to the end of the paragraph substitute "as a result of any behaviour of the prohibited person."

57. The Committee agreed to support the Department's amendments subject to the NIHRC being content with the wording of the new amendments.

Removal of the requirement to produce an annual Children Order report

58. Article 181 of the Children Order 1995 requires the Department, after consultation with the Lord Chancellor, the Department of Education and the Department of Finance, to prepare and lay before the Assembly an annual general report on the operation of the Order. Clause 143 of the Bill omits article 181 and Schedule 5 to the Bill repeals it.

59. The Department believes that the annual report is no longer needed as it has been superseded by other reports and information in respect to the operation of certain provisions of the 1995 Order such as the Children Order Advisory Committee (COAC) Reports, Northern Ireland Guardian Ad Litem Agency annual reports and statistics, delegated statutory functions reports and Children's Services statistical data.

60. However, those stakeholders that addressed this issue strongly opposed the move to end the requirement to lay before the Assembly a codified annual report. Some stakeholders suggested that a three-yearly report could instead be required.

61. After deliberations, the Committee agreed with the views of stakeholders that the annual report on the operation of the Children Order could be an important tool in identifying and addressing issues for looked after children. The Committee agreed that it will give notice of its intention to oppose the question that clause 143 stand part of the Bill at Consideration Stage.

62. The Committee is content for the Department to consider the format and reporting period for the Report on the operation of the Children Order and to bring forward proposals for consideration by the Committee and the sector.

Duty on organisations to preserve and retain records

63. Part 1 of recommendation 4 in the Report of the Truth Recovery Design Panel stated that:
"The Truth Recovery Panel recommends immediate action by the Northern Ireland Executive, supported by the Northern Ireland Assembly, to create a statutory requirement on all relevant record holders to preserve and not destroy any information relating to Mother and Baby Institutions, Magdalene Laundries, Workhouses, adoption-related institutions and 'baby homes', and their policies and practices, including personal records. The requirement should extend to all State and non-State institutions and agencies, officials, representatives and professionals that serviced them."

64. The Committee outlined the need for this recommendation to be implemented as soon as possible to ensure that relevant documents are not disposed of and are preserved to enable people to access what documentation there is. Following publication of the Panel's Report, the Minister indicated that he would use the Adoption and Children Bill as the vehicle to introduce a duty to preserve and retain records.

65. At its meeting on 13 January 2022, departmental officials outlined that, in order to give effect to part 1 of recommendation 4 from the report of the Truth Recovery Design Panel, which was published on 5 October 2021, Counsel has been instructed to draft clauses, for inclusion in the Bill, which will compel holders of records relevant to Mother and Baby Institutions, Magdalene Laundries and related institutions to preserve and not destroy those records. The clauses will include offences / penalties for non-compliance. The Committee also received written evidence from a number of individuals in relation to this matter.

66. The Committee considered the Department's amendments at its meeting on 25 January and were content with the Department's proposals, subject to confirmation that the new clauses are in line with the Data Protection Act and the Public Records Act.

Review

67. The Committee recognises that this is a significant piece of legislation, with over 20 sets of regulations needed to implement the legislation. This legislation has been delayed a number of times over the last decade and in order to provide the Assembly, the Committee and stakeholders with assurance that implementation of the legislation is a priority for the Department, the Committee felt that there should be a requirement on the Department of Health to report on the implementation of this legislation.

68. The Committee agreed a new clause to the Bill that would require the Department of Health to review the legislation and make a report to the Assembly, on implementation of parts 1 and 2 of the Bill, as soon as practicable after the third anniversary of the commencement. The Committee also agreed that the Department should report at least once every five years.

69. The Committee also agreed that the Department could bring forward regulations to remove the requirement to Report on the implementation of the Bill, but not before the tenth anniversary of the Act receiving Royal Assent.

70. The Committee agreed the following new clause:
New Clause
After clause 157 insert
'Review
157A. (1) The Department must review and make a report on the implementation of each provision of Part 1 and of each provision of Part 2-
(a)as soon as practicable after the third anniversary of the commencement of that provision; and
(b)at least once in every five years after the making of the previous report on the implementation of that provision.
(2) The Department must—
(a)lay a copy of each report under this section before the Assembly; and
(b) having done that, publish the report.
(3) The Department may by regulations provide that subsections (1) and (2) are to cease to have effect on the date specified; but the regulations may not specify a date which is earlier than the tenth anniversary of this Act receiving Royal Assent.
(4) Regulations under this section are subject to negative resolution.'

Other issues

North/South

71. Although kinship foster care arrangements are in place under a cross-border protocol, concerns were raised at Committee about the practical challenges stemming from the fact that adoption on a North/South basis is currently treated in the same way as any other intercountry adoption, even when the prospective adopters are relatives.

72. Widespread concerns were raised by stakeholders that sufficient resourcing for the new arrangements must be made available.

73. Members did highlight concerns in relation to the practical challenges from the issue of cross-border kinship care and adoption. The Committee sought the views of NIHRC on this issue. NIHRC stated in its response that it is not currently clear how the Bill will meet the needs of children for whom adoption is not appropriate, but who would benefit from kinship placement across the border. NIHRC also highlighted that the UK's withdrawal from the EU has raised additional complexity.

74. The Committee agreed to seek assurances from the Department of Health and the Department of Justice that the loss of the Brussels IIa framework has not adversely impacted how the cross-border placement of children is managed. The Committee also agreed to ask the Department of Health if consideration is being given to whether placing children under SGOs overseas or cross-border may warrant a distinct form of regulatory framework for domestic cases (for example a bilateral agreement between UK-Ireland) to pre-empt any difficulties that may arise.

75. The Committee recognises the importance, where possible, of keeping children in existing family structures and in certain circumstances this may require placement across the border. The Department must ensure that there is sufficient support for cross-border placements, including assessments and provision of services when applicable.

76. The Committee recommends that the Department undertakes a review of cross-border care arrangements including consideration of a regulatory framework for cross-border cases.

Requirement to attend interview with counsellor – Schedule 2

77. At its meeting on 25 January, the Committee considered the Department's amendment to Schedule 2, which removes the requirement for a person adopted before December 1987 to attend a counselling interview before the Registrar General can provide disclose birth records. This was an issue that was highlighted as a possible barrier by victims and survivors of the mother and baby homes and Magdalene laundries.

78. The Committee welcomes this, but outlines that this is a complex issue and the Committee recognises the importance of counselling and support and believes that the Registrar General should provide people with all the relevant information in relation to what support and counselling is available. The Committee would also outline that if counselling is not wanted before disclosure, counselling and support should be provided when required and that support and counselling should be provided in a timely manner.

Regulations

79. There was broad concern on the part of stakeholders that much legislation under the Bill will come in regulations and other statutory instruments, the detail of which has not been seen. Stakeholders urged the Committee to scrutinise such secondary legislation carefully.

80. The Department of Health officials outlined to the Committee that there would be a phased approach to introducing over 20 sets of regulations linked to the Bill. Officials outlined that it was planned to introduce them over a three-year period, starting in the 2023-24 financial year.

81. The Committee have requested sight of the timetable for the phased approach and would recommend that the incoming Committee closely follow implementation of the regulations that will give effect to this Bill.

82. The Committee will also consider comments by the Examiner of Statutory Rules in relation to delegated powers and the Assembly's scrutiny of regulations. The Committee reserve the right to bring forward further recommendations on this issue.

Informal meetings

Clause by Clause Scrutiny of the Bill

98. Having considered the written and oral evidence received on the Bill, the Committee undertook its formal Clause-by-Clause consideration at its meeting on 25 January 2022. The related Minutes of Proceedings of the Committee's Clause by Clause consideration are in Appendix 1 and the Minutes of Evidence of the proceedings are in Appendix 2.

99. The Committee considered the Report on Delegated Powers by the Examiner of Statutory Rules and agreed to schedule a briefing on the issues raised in the Report. The Committee agreed that it would consider the Report and that it reserves the right to bring further Committee amendments to the Bill.

100. Information on the Committee's deliberations on the Bill can be found in the previous section of this report.

PART 1: Adoption

CHAPTER 1: Introductory

Clause 1: Considerations applying to the exercise of powers
The Committee considered Clause 1 as drafted.
Agreed: The Committee agreed that it was content with Clause 1 as drafted.

CHAPTER 2: The Adoption Service

Clause 2: Basic definitions
The Committee considered Clause 2 as drafted.
Agreed: The Committee agreed that it was content with Clause 2 as drafted.

Clause 3: Adoption authority
The Committee considered two Department of Health proposed amendments to Clause 3 to remove the Regional Board from the definition of an adoption authority. This is a consequential amendment arising as a result of the Health and Social Care Act (Northern Ireland) 2022 – Dissolution of the Regional Board.

Amendment 1
Clause 3, Page 4, Line 6
Leave out from 'are' to end of line 7 and insert 'are to its operational area as specified under paragraph 3A(2) of Schedule 3 to the Health and Personal Social Services (Northern Ireland) Order 1991.'

Amendment 2
Clause 3, Page 4
Leave out lines 9 and 10

Agreed: The Committee agreed that it was content with the amendments as drafted.
Agreed: The Committee agreed that it was content with Clause 3 as amended.

Clause 4: The Adoption Service
The Committee considered Clause 4 as drafted.
Agreed: The Committee agreed that it was content with Clause 4 as drafted.

Clause 5. Assessments etc. for adoption support services
The Committee considered its proposed amendment to Clause 5 to provide clarity regarding which categories of persons would be entitled to adoption support services.
Clause 5, page 5, line 14
Leave out from 'that' to end of line 14 and insert–
' –
(a) that person is a child who may be adopted;
(b) that person is a parent or guardian of a child who may be adopted;
(c) that person is a person wishing to adopt a child;
(d) that person is an adopted person;
(e) that person is a parent, natural parent or former guardian of an adopted person; and
(f) that person is within a prescribed description.'

Agreed: The Committee agreed that it was content with the amendment as drafted.
Agreed: The Committee agreed that it was content with Clause 5 as amended.

Clause 6: Adoption support services: duty to provide information
Clause 7: Arrangements on cancellation of registration
Clause 8: Inactive or defunct adoption societies, etc.
Clause 9: General power to regulate adoption agencies
Clause 10: Management, etc., of agencies
Clause 11: Fees
Clause 12: Independent review of qualifying determinations of adoption agencies
Clause 13: Information concerning adoption
Clause 14: Inspection of premises, etc.

Agreed: The Committee agreed to group Clauses 6 to 14 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 6 to 14 as drafted.

CHAPTER 3: Placement for Adoption and Adoption Orders

Clause 15: Placement for adoption by agencies
Clause 16: Placing children with parental consent
Clause 17: Advance consent to adoption
Clause 18: Placement orders
Clause 19: Applications for placement orders
Clause 20: Varying placement orders
Clause 21: Revoking placement orders
Clause 22: Parental responsibility
Clause 23: Contact
Clause 24: Contact: supplementary
Clause 25: Further consequences of placement
Clause 26: Further consequences of placement orders
Clause 27: General prohibitions on removal
Clause 28: Recovery by parent etc. where child not placed or is a baby
Clause 29: Recovery by parent etc. where child placed and consent withdrawn
Clause 30: Recovery by parent etc. where child placed and placement order refused
Clause 31: Placement orders: prohibition on removal
Clause 32: Return of child in other cases
Clause 33: Restrictions on removal
Clause 34: Applications for adoption
Clause 35: Authority foster parents
Clause 36: Partners of parents
Clause 37: Other non-agency cases Breach of restrictions on removal
Clause 38: Recovery orders Preliminaries to adoption
Clause 39: Child to live with adopters before application
Clause 40: Reports where child placed by agency
Clause 41: Notice of intention to adopt
Clause 42: Suitability of adopters The making of adoption orders
Clause 43: Adoption orders
Clause 44: Conditions for making adoption orders
Clause 45: Restrictions on making adoption orders
Clause 46: Applications for adoption
Clause 47: Adoption by couple
Clause 48: Adoption by one person
Clause 49: Post-adoption contact
Clause 50: Orders under section 49 supplementary
Clause 51: Parental etc. consent
Clause 52: Modification of Children Order in relation to adoption
Clause 53: Disclosing information to prospective adopters
Clause 54: Revocation of adoptions on legitimation
Clause 55: Information to be kept about a person's adoption
Clause 56: Restrictions on disclosure of protected etc. information
Clause 57: Disclosure of other information
Clause 58: Offence
Clause 59: Disclosing information to adopted adult
Clause 60: Disclosing protected information about adults
Clause 61: Disclosing protected information about children
Clause 62: Counselling
Clause 63: Other provision to be made by regulations
Clause 64: Sections 55 to 64: interpretation

Agreed: The Committee agreed to group Clauses 15 to 64 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 15 to 64 as drafted
.

CHAPTER 4: Status of Adopted Children

Clause 65: Meaning of adoption in Chapter 4
Clause 66: Status conferred by adoption
Clause 67: Adoptive relatives
Clause 68: Rules of interpretation for instruments concerning property
Clause 69: Dispositions depending on date of birth
Clause 70: Property devolving with peerages etc.
Clause 71: Protection of trustees and personal representatives
Clause 72: Meaning of disposition
Clause 73: Miscellaneous
Clause 74: Pensions
Clause 75: Insurance

Agreed: The Committee agreed to group Clauses 65 to 75 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 65 to 75 as drafted.

CHAPTER 5: Registers

Clause 76: Adopted Children Register
Clause 77: Searches and copies
Clause 78: Connections between the register and birth records
Clause 79: Adoption Contact Register
Clause 80: Adoption Contact Register: supplementary
Clause 81: Interpretation

Agreed: The Committee agreed to group Clauses 76 to 81 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 76 to 81 as drafted.

CHAPTER 6: Adoptions with a Foreign Element

Clause 82: Restriction on bringing children in
Clause 83: Giving parental responsibility prior to adoption abroad
Clause 84: Restriction on taking children out
Clause 85: Power to modify sections 82 and 84 Adoptions from abroad: special restrictions
Clause 86: Declaration of special restrictions on adoptions from abroad
Clause 87: Review
Clause 88: The special restrictions
Clause 89: Imposition of extra conditions in certain cases
Clause 90: Overseas adoptions
Clause 91: Modification of section 66 for Hague Convention adoptions
Clause 92: Annulment etc. of overseas or Hague Convention adoptions
Clause 93: Section 92: supplementary
Clause 94: Overseas determinations and orders
Clause 95: Power to charge

Agreed: The Committee agreed to group Clauses 82 to 95 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 82 to 95 as drafted.

CHAPTER 7: Miscellaneous

Clause 96: Restriction on arranging adoptions etc.
Clause 97: Offence of breaching restrictions under section 96
Clause 98: Restriction on reports
Clause 99: Prohibition of certain payments
Clause 100: Excepted payments
Clause 101: Sections 96 to 100: interpretation information

Agreed: The Committee agreed to group Clauses 96 to 101 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 96 to 101 as drafted.

Clause 102: Pre-commencement adoptions: information
The Committee considered seven Department of Health proposed amendments to Clause 102 which aim to address issues with access to information identified by victims and survivors during the work of the Truth Recovery Design Panel.

Carál Ní Chuilín declared an interest as formerly holding the office of Minister for Culture, Arts and Leisure which included responsibility as the legal keeper of public records.

Amendment 1
Clause 102, Page 60, Line 20
At end insert—
'(aa) assisting a natural parent of a person referred to in paragraph (a) to obtain information in relation to that person's adoption; and'

Amendment 2
Clause 102, Page 60, Line 21
Leave out 'such persons' and insert 'persons referred to in paragraph (a)'

Amendment 3
Clause 102, Page 60, Line 24
At end insert—
'(2A) Regulations under section 9 may make provision for the purpose of authorising or requiring adoption agencies in prescribed circumstances to disclose or provide access to prescribed information relating to the adoption of a person adopted before the appointed day who has attained the age of 18.'

Amendment 4
Clause 102, Page 60
Leave out line 34 and 35 and insert—
'(4A) For a purpose within subsection (1), (2) or (2A) the regulations may impose conditions on the disclosure of information, including conditions restricting its further disclosure.'

Amendment 5
Clause 102, Page 60, Line 37
Leave out '(3)' and insert '(2A) or (3),'

Amendment 6
Clause 102, Page 60, Line 38
At end insert -
'; but an adopted person ("A") may not be required to pay any fee in respect of any information disclosed to A or to which A was provided access.'

Amendment 7
Clause 102, Page 60, Line 40
After 'subsection' insert '(2A) or'

Agreed: The Committee agreed that it was content with the amendments as drafted, pending confirmation that the amendments are compliant with data protection and public records legislation.

Agreed: The Committee agreed that it was content with Clause 102 as amended, pending confirmation that the amendments are compliant with data protection and public records legislation.

Clause 103: Proceedings for offences
Clause 104: Appeals
Clause 105: Privacy Children's court guardians
Clause 106: Children's court guardians
Clause 107: Right of access to adoption agency records Evidence
Clause 108: Evidence of consent Orders made in Great Britain, etc.
Clause 109: Effect of certain Scottish orders and provisions
Clause 110: Effect of certain orders made in England and Wales
Clause 111: Use of adoption records from Great Britain, etc.
Clause 112: Channel Islands and the Isle of Man General
Clause 113: Avoiding delay
Clause 114: Service of notices etc.
Clause 115: Jurisdiction of courts

Agreed: The Committee agreed to group Clauses 103 to 115 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 103 to 115 as drafted.

PART 2: Children Order Amendments

Clause 116: Definition of family proceedings
Clause 117: Article 8 orders: authority foster parents
Clause 118: Duration of residence orders

Agreed: The Committee agreed to group Clauses 116 to 118 for the purpose of putting the question.
Agreed: The Committee agreed that it was content with Clauses 116 to 118 as drafted.

Clause 119: Special guardianship
The Committee considered two Department of Health proposed amendments to Clause 119 to place a duty on authorities, on the face of the Bill, to conduct an assessment of needs for special guardian support services in respect of certain categories of people, on request.

Amendment 1
Clause 119, Page 71, Line 19
Leave out lines 19 to 30 and insert –

'(3) An authority must at the request of –
(a) a relevant child;
(b) a special guardian of a relevant child;
(c) a prospective special guardian of a relevant child;
(d) a parent of a relevant child; or
(e) any other person who falls within a prescribed description (subject to subparagraph (za) of paragraph (9)),
carry out an assessment of that person's needs for special guardianship support services.

(3A) In paragraph (3)—
(a) "relevant child" means a child in respect of whom—
(i) a special guardianship order is in force;
(ii) a person has given notice to an authority under Article 14A(7) of intention to make an application for a special guardianship order; or
(iii)a court is considering whether a special guardianship order should be made and has asked an authority to conduct an investigation and prepare a report under Article 14A(9)',

(b) "prospective special guardian" means a person—
(i) who has given notice to an authority under Article 14A(7) of the person's intention to make an application for a special guardianship order; or
(ii) in respect of whom a court has requested that an authority conduct an investigation and prepare a report under Article 14A(9).'

Amendment 2
Clause 119, Page 72, Line 12
At end insert –
'(za) as to the circumstances in which a person mentioned in sub-paragraph (e) of paragraph (3) is to have a right to request an assessment of that person's needs in accordance with that paragraph;'

The Committee considered its proposed amendment to Clause 119 to make it clear which categories of persons would be entitled to adoption support services, replicating the amendment to clause 5.

Clause 119, page 71, line 39
Leave out from 'that' to end of line 40 and insert –
'(a) that person is a child with respect to whom a special guardianship order has been applied for;
(b) that person is a parent or guardian of a child with respect to whom a special guardianship order has been applied for;
(c) that person is a person wishing to become a special guardian;
(d) that person is a child with respect to whom a special guardianship order is in force;
(e) that person is a parent or former guardian of a child with respect to whom a special guardianship order is in force; and
(f) that person is within a prescribed description.'

Agreed: The Committee agreed that it was content with the amendments as drafted.
Agreed: The Committee agreed that it was content with Clause 119 as amended.